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.
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 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.
The Digital Public Library of America‘s policy on metadata was discussed during the recent board of directors call, and the DPLA is, in my opinion, getting it exactly and admirably right. (See Infodocket for links.) The metadata that the DPLA aggregates will be openly available and in the public domain. But just so there won’t be any doubt or confusion, the policy begins by saying that it does not believe that most metadata is subject to copyright in the first place. Then, to make sure, it adds:
To the extent that the DPLA’s own contributions to selecting and arranging such metadata may be protected by copyright, the DPLA dedicates such contributions to the public domain pursuant to a CC0 license.
And then, clearly and plainly:
Given the purposes of the policy and the copyright status of the metadata, and pursuant to the DPLA’s terms of service, the DPLA ‘s users are free to harvest, collect, modify, and/or otherwise use any metadata contained in the DPLA.
The letters of Lord Alfred Russel Wallace, co-discoverer of the theory of evolution by natural selection, are now online. As the Alfred Russel Wallace Correspondence Project explains, the collection consists of 4,000 letters gathered from about 100 different institutions, with about half in the British Natural History Museum and British Library.
The Correspondence Project has, admirably, been releasing the scans without waiting for transcription; more faster is better! Predictably annoyingly, the letters, written by a man who died ten years before the Perpetual Copyright date of 1923, seem to be (but are they?) carefully obstructed by copyright: The Natural History Museum, which houses the collection, asserts copyright over “data held in the Wallace Letters Online database (including letter summaries)” [pdf — oddly unreadable in Mac Preview]. Beyond the summaries, exactly what data is this referring to? Not sure. Don’t know.
But that isn’t the full story anyway, for the NHM sends us to the Wallace Fund for more information about the copyright. That page tells us that the unpublished letters are copyrighted until 2039, with this very helpful footnote:
Unless the work was published with the permission of his Literary Estate before 1 August 1989, in which case the work will be in copyright for 70 years after Wallace’s death, unless he died more than 20 years before the work’s publication, in which case copyright would expire 50 years after publication.
Eventually it gets to some good news:
Authors wishing to publish such works would ordinarily need to obtain permission from the copyright holder before doing so. However, on July 31st 2011, in an attempt to facilitate the scholarly study of ARW’s writings, the co-executors of ARW’s Literary Estate agreed to allow third parties to publish ARW’s copyright works non-commercially without first having to ask the Literary Estate for permission, under the terms and conditions of Creative Commons license “Attribution-NonCommercial-ShareAlike 3.0 Unported”
So, are the letters published on the NHM site actually available under a Creative Commons non-commercial license? The Wallace Fund that aggregated them seems to think so. The NHM that published them maybe thinks not.
Because copyright is just so magical.
TWO HOURS LATER: Please see the first comment, from George Beccaloni, Director of the Wallace Correspondence Project. Thanks, George.
He explains that the transcribed text is available under a Creative Commons non-commercial license, but the digitized images are not. Plus some further complications, such as the content of the database being under copyright, although it is not clear from the site what data that is.
Since the aim of CC is to make it easier for people to re-use material, may I suggest (in the friendliest of fashions) that this be prominently clarified on the sites themselves?
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.