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.
The Register just posted one of the most ridiculous pieces of clickbait trolling I’ve ever seen. They’re claiming that by posting the parody video below, the UK’s Open Rights Group is comparing people who defend their copyright to Hitler:
Second, a few years ago, the producers of Downfall apparently got fed up with their movie becoming so well known and started issuing DMCA takedown notices for the parodies.
Third, two days ago the House of Lords protected parodies against copyright infringement suits — covered in the US by our policy of Fair Use. ORG linked to the Downfall parody to celebrate this victory for free speech.
So, it hurts my head how many ways The Register’s trolling gets things wrong. It’s as if someone were accused of violating Godwin’s Law because she invoked Godwin’s Law. [I am taking Godwin’s Law as normative. Sue me.]
Here is the link to The Register article but I encourage you not to go there, just so they won’t feel that this sort of ridiculous trolling is profitable. Instead, we could perhaps invoke a version of the Streisand Effect by posting the video widely.
[A few hours later:] The Register just appended the following to their post:
Since the publication of this story, the ORG has contacted The
Register with this comment: “Earlier this week, the Open Rights
Group tweeted a Downfall parody about copyright on the day that
parody exceptions for copyright were approved by the House of
Lords. Downfall parodies are widely recognised and have been used
to great satirical effect about a wide range of subjects. It is
wilful ignorance to portray a Downfall parody as a direct
comparison with Hitler and Nazism.”
The American Academy of Arts and Sciences is today taking in 198 new members, including Bruce Springsteen, Pete Seeger, Sen. John Glenn, Robert De Niro … and Pam Samuelson. Founded in 1780, the Academy’s current roster includes 250 Nobelists and 60 Pulitzerists. It’s therefore especially exciting that the Academy is including someone best known for her work as a copyright reformer.
Pam is the Director of the Berkeley Center for Law & Technology and is on the board of the EFF, among many other positions and honors. She has a clear eye on the Net’s potential for transforming culture, and has been working for many years on reforming copyright so that it makes sense in this new environment. Among many other projects, she’s suggested a sensible framework for copyright in the digital age [pdf]. But just google her + copyright to get a sense of why Pam so richly deserves this honor, and why it’s impressive that the AAAS has chosen to bring her into its ranks.
We just came from a fantastic production of Love’s Labor’s Lost by Shakespeare & Co. in Lenox, Mass. I’ve lauded this company before (often), but this afternoon’s show was among the very best we’ve seen. The second half especially was both hilarious and very touching. At least the way they played it this time — we saw it here years ago — the ending was a criticism of the play’s own wit as a way to dodge true knowledge. That Shakespeare guy really could write!
I’d recommend you see it, but this was the last performance. Which makes me wonder (once again) why a company like this doesn’t video one of the performances and put it up on the Web for free. Why the heck not? It would only encourage attendance, and would raise the company’s prominence.
And Shakespeare & Co. also holds informal talks about their performances. Why not video them and put them up on the Web for people who are about to see any company’s performance of the play?
There may be a simple answer to this. For example, as my nephew pointed out, some of the performers are in Actors Equity and there may be rules against posting performances for free. If so, what a waste and disservice to their members! For example, it would only help Josh Aaron McCabe‘s career for people to see his performance as Berowne this afternoon.
Or it may be simply that the default at Shakespeare & Co. hasn’t switched to open-when-done. But that only requires the Will. I just hate to see this love’s labor lost.
Not since the NFL sent a takedown notification to Wendy Seltzer because she posted the NFL’s copyright notice has a takedown notice been so unknowing. Wendy is a law professor and the head of the Chilling Effects archive of takedown notifications. The new Notification of Unknowingness went to Lawrence Lessig for using a short clip to make a point in a video of a talk about the overreach of copyright:
A co-founder of the nonprofit Creative Commons and author of numerous books on law and technology, Lessig has played a pivotal role in shaping the debate about copyright in the digital age. In June 2010, Lessig delivered a lecture titled “Open” at a Creative Commons conference in South Korea that included several short clips of amateur dance videos set to the song “Lisztomania” by the French band Phoenix. The lecture, which was later uploaded to YouTube, used the clips to highlight emerging styles of cultural communication on the Internet. [source: eff]
When YouTube forwarded the DMCA takedown notice to him, Lessig did what so few people do: he counter-notified that his use of the clip was an instance of Fair Use. [More details here.] Fair Use is an exemption to copyright that lets reasonable extracts be used in cases just like Larry’s video. [Better explanation here.] The copyright holder then said they were going to sue Lessig for infringement. Lessig took down the clip and is now taking the issue to court with the help of the Electronic Frontier Foundation. (Did you remember to donate to the EFF?) Their aim is to get the judge to issue a declarative judgment that the the clip is covered by Fair Use, and to get damages as specified in DMCA clause 512f:
(f) Misrepresentations. Any person who knowingly materially misrepresents under this section (1) that material or activity is infringing, or (2) that material or activity was removed or disabled by mistake or misidentification,
shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.
Since what exactly constitutes Fair Use is determined by courts, a declarative judgment would help clarify that uses like Larry’s are definitely ok, and the awarding of damages would help discourage organizations from issuing automated takedowns that give no heed to the circumstances in which the content is being used. (But I am not a lawyer, so do not believe me.)
The final irony: The name of the copyright holder is Liberation Music.
I liked the Mendeley guys. Their product is terrific — read your scientific articles, annotate them, be guided by the reading behaviors of millions of other people. I’d met with them several times over the years about whether our LibraryCloud project (still very active but undergoing revisions) could get access to the incredibly rich metadata Mendeley gathers. I also appreciated Mendeley’s internal conflict about the urge to openness and the need to run a business. They were making reasonable decisions, I thought. At they very least they felt bad about the tension :)
Thus I was deeply disappointed by their acquisition by Elsevier. We could have a fun contest to come up with the company we would least trust with detailed data about what we’re reading and what we’re attending to in what we’re reading, and maybe Elsevier wouldn’t win. But Elsevier would be up there. The idea of my reading behaviors adding economic value to a company making huge profits by locking scholarship behind increasingly expensive paywalls is, in a word, repugnant.
In tweets back and forth with Mendeley’s William Gunn [twitter: mrgunn], he assures us that Mendeley won’t become “evil” so long as he is there. I do not doubt Bill’s intentions. But there is no more perilous position than standing between Elsevier and profits.
I seriously have no interest in judging the Mendeley folks. I still like them, and who am I to judge? If someone offered me $45M (the minimum estimate that I’ve seen) for a company I built from nothing, and especially if the acquiring company assured me that it would preserve the values of that company, I might well take the money. My judgment is actually on myself. My faith in the ability of well-intentioned private companies to withstand the brute force of money has been shaken. After all this time, I was foolish to have believed otherwise.
MrGunn tweets: “We don’t expect you to be joyous, just to give us a chance to show you what we can do.” Fair enough. I would be thrilled to be wrong. Unfortunately, the real question is not what Mendeley will do, but what Elsevier will do. And in that I have much less faith.
CNN asked me to write 600-800 words about Aaron Swartz. I demurred at first, suggested some other people who knew Aaron better — I met Aaron when he was young, stayed in touch, had the occasional meal with him, admired him and loved him more than he knew — and agreed when CNN came back to me.
I have trepidation about what I wrote, which CNN has now posted. I don’t like the implication that we can sum up any life so glibly. But I also wanted to do a little to nudge attention from Aaron solely as a champion of open information. I also decided not to assess the blame that is so well deserved, because that’s well discussed already.
A handful of better sources and expressions:
Anything Larry Lessig has written or said, including this.
Cory Doctorow’s immediate post, breaking the news and our hearts
… Swartz must be compared to two other eccentric geniuses, Steve Jobs and Steve Wozniak, who, in the nineteen-seventies, committed crimes similar to, but more economically damaging than, Swartz’s. Those two men hacked A.T. & T.’s telephone system to make free long-distance calls, and actually sold the illegal devices (blue boxes) to make cash. Their mentor, John Draper, did go to jail for a few months (where he wrote one of the world’s first word processors), but Jobs and Wozniak were never prosecuted. Instead, they got bored of phreaking and built a computer. The great ones almost always operate at the edge.
That was then. In our age, armed with laws passed in the nineteen-eighties and meant for serious criminals, the federal prosecutor Carmen Ortiz approved a felony indictment that originally demanded up to thirty-five years in prison. Worse still, her legal authority to take down Swartz was shaky. Just last year, the Ninth Circuit Court of Appeals threw out a similar prosecution. Chief Judge Alex Kozinski, a prominent conservative, refused to read the law in a way that would make a criminal of “everyone who uses a computer in violation of computer use restrictions—which may well include everyone who uses a computer.” Ortiz and her lawyers relied on that reading to target one of our best and brightest.
It’s one thing to stretch the law to stop a criminal syndicate or terrorist organization. It’s quite another when prosecuting a reckless young man. The prosecutors forgot that, as public officials, their job isn’t to try and win at all costs but to use the awesome power of criminal law to protect the public from actual harm. Ortiz has not commented on the case. But, had she been in charge when Jobs and Wozniak were breaking the laws, we might never have had Apple computers. It was at this moment that our legal system and our society utterly failed.
My friend David Isenberg cautions us not to think of this as Aaron encountering one bad apple in the system. Rather, says David, “The legal system was working just like it always works…The case of US v Swartz was business as usual.”
And I can assure anyone who is feeling a bit hot under the collar about the music industry in general, that the thing they fear in corporate HQs and trade associations far far more than the digital consumer and bittorrent etc., is an emancipated artist.
Congratulations on your victory! I’m proud to have you as our new Congressperson from the 12th district here in Brookline and environs. Barney Frank has left you some big shoes to fill, and I’m looking forward to watching you lace up.
Barney did a great job representing our local interests. But our district, and our Commonwealth, has always looked beyond what’s good for us locals. We’ve always had an eye out for the larger common good. That’s why we keep electing Kennedys.
An issue has arisen that not only needs your support, but could help you make exactly the right kind of early mark. Forgive me if you are already on top of it, but, briefly, the Republican Study Committee on Friday issued a report on copyright reform that was — from the point of view of many of us on the Web — shockingly helpful. I say “shockingly” because Congress overall has been woefully one-sided and antiquarian on the question of copyright, taking laws designed for previous centuries and actually making them far worse.
That was Friday. By Saturday afternoon, the Hollywood lobbyists had forced Paul Teller, the head of the RSC, to withdraw the report on the specious grounds that it had not gone through “adequate review.” If so, perhaps Paul Teller should resign. But, I’m willing to bet 10,000 RomneyBucks that instead the young author of the report, Derek Khanna [twitter:dkhanna11], will take the fall.
Anyway, the report punctures three myths about copyright, and proposes four areas of reform:
Statutory damages reform
Expand Fair Use
Punish false copyright claims
Heavily limit the terms for copyright, and create disincentives for renewal
I urge you to take a look. Imagine a world with copyright reformed in this way. And if you think the proposals are wrong-headed, impractical, or whatever, at least embrace them as a starting point for a conversation this country very much needs.
This could be a great issue for you, Joe. You’ll find a whole lot of constituents who would be thrilled to see you take a leadership role in this important discussion.
And it won’t just be your constituents. You’ll find yourself surfing a wave — the Internet constituency that represents the future of our party, nation, and globe.
Looking forward to seeing you show the bold leadership your family is famous for and that has so many of us excited about your first term in Congress — the first of many, we hope!
Note: The original report was here, but people have put up extra copies in case the RSC physically removes the report from the Web. Here’s the copy I posted.