I’m at a Berkman Klein Center lunchtime talk. Aaron Perzanowski is talking about “The End of Ownership,” the topic of his new book of the same name, written with Jason Schultz. Aaron is a law professor at Case Western Reserve Law School.
NOTE: Live-blogging. Getting things wrong. Missing points. Omitting key information. Introducing artificial choppiness. Over-emphasizing small matters. Paraphrasing badly. Not running a spellpchecker. Mangling other people’s ideas and words. You are warned, people.
Normally we consumers take for granted rights for physical goods that come from the principle of exhaustion: when you sell something, you exhaust your rights to control it. That’s why we have used book stores and eBay and we can lend a novel to a friend. In this way, the copyright system gives end users a reason to participate: if you buy it, you can do what you want with it.
Online we use familiar forms of ownership: buy, rent, gift. This means that consumers don’t have to figure out every purchase from scratch; we have the basic understanding. Or do we?
The book talks about the erosion of the concept of exhaustion and the rights that flow from it.
First, copies themselves are disappearing. We used to own a copy. Now we subscribe to content streaming from the cloud. Copies are no longer rare, valuable, persistent.
Second, courts have redefined who counts as an owner. It used to be that if you paid money for it, and you paid for it once (i.e., not a subscription), then you owned it. In 1908, the courts decided that Bobbs Merrill couldn’t control the price for which a purchased copy could be re-sold. Now, end user license agreements routinely say that you have not bought a copy and thus you can not re-sell it.
He contrasts two cases from the 9th District Court of Appeal that were decided back to back on the same day, and that are totally inconsistent. In the first case, a promotional copy of a CD had stamped on it that accepting the CD binds the recipient to a prohibition on transferring it to someone else. The court said that you can’t impose ongoing obligations that travel around with the disk.
“We’ve passed the logical breaking point…”In the same case, on the same day, the same panel considered who owns the CD in the AutoCAD package. It contained the same sort of license. The court decided that those disks were licensed by users, not owned.
Q: The music CD was unsolicited. But I bought the AutoCAD disk.
A: Do you have more or less ownership interest in something you got for free or something you paid $8,000 for?
Early in the software industry, it wasn’t certain that sw could be patented or protected by copyright, so licenses played a bigger role. But now sw is everywhere, not just on little disks. Which bring us to Digital Rights Management (DRM). At first it was at least somewhat related to protecting IP. But we’ve passed the logical breaking point, E.g., Lexmark doesn’t want people to refill their printer ink cartridges. So they had code on their printers that detected non-Lexmark cartridges or refills and wouldn’t use them. The courts disagreed.
Apple recently got a patent on using infrared light recording to disable recording on your iPhone. If a concert broadcasts this light, your phone won’t be able to record it. Or if you’re a police officer who doesn’t want to be recorded. This is an example of how tech can turn the devices you think you own against you.
“The Internet of Things is really the Internet of Things you don’t own.”The Internet of Things is really the Internet of Things you don’t own. John Deer tractors have sw embedded in them that is licensed to the owner of the tractor. GM says the same thing about cars. Another example of “machine mutiny”: Keurig.
The final problem: The deceptive “Buy Now” button. You’re usually not really buying anything. E.g., remember when Amazon deleted copies of 1984 from Kindles? “What rights do people think they have when they ‘buy now.'” Aaron and Jason did an experiment that showed that if people bought through a “by now” button, they thought they have the right to keep, device, lend, and give their copy. People make this mistake because they port over their real-world understanding of buying goods.
Q: How does this work internationally?
A: An international exhaustion regime could have dramatic consequences for people in less developed economies. I worry about this, but I don’t know the answer. It’s very tough to generalize.
Q: How does consumer understanding of this affect pricing?
A: We tested this. Would consumers behave differently if they knew the truth? We asked how much more people would be willing to pay. It was worth about $3 more for those rights, although we didn’t ask them to actually pay that money. [Amazon lets you stream a video for 24 hrs for $3-$5 or buy for somewhere around $15, or so I recall.]
Q: How are the demographics in their understanding of the rights they’re buying?
A: Generally white men 30+ were the least accurate. They assumed they were entitled to all the rights.
Q: How are the streaming services doing in terms of the confusion?
A: We haven’t researched it specifically but my intuition is that people aren’t as confused. They know that if they don’t pay their Spotify bill, they won’t have the service next month.
A: Disney will never again release Song of the South because it’s embarrassing. The loss of a cultural object like this is very disturbing.
Q: Is people’s sense of fairness shifting so we won’t be bothered by, say, GM turning off your car’s software?
A: This is a problem with dealing with consumer expectations. We’re advocating for one set, but they’re going in the other direction. We’ve situated our argument in the language of property because it’s incredibly powerful. That’s how sw owners argue their cases: “We own this property, so we get to say how it’s used.” But the property rights of IP holders shares a border with the stuff that we as consumers own.
Q: What can be done to change the trajectory?
A: The parallels to the privacy world are instructive. The people we surveyed took these concerns about ownership to heart in a way that they don’t in the privacy context.
A: You’ve only touched the tip of the ice berg. The problem is worse than you’ve indicated.
Yes, there is a broader problem.
A: [me] Take away the deception about “Buy” buttons and one could argue that customers simply have (or will have) more options. Does your focus on the property argument misses the cultural damage that unbundling licenses will wreak?
Q: This is why we talk about exhaustion. We’re trying to explain to people why ownership matters to culture. It’;s risky to argue that we just need to correct the misinformation. But there’s some hope. The only sector of the music market growing faster than Spotify et al. is vinyl. It’s a smaller percent of the market, but there are people who will pay a price premium for something that’s tangible and that’s theirs. Likewise, physical books haven’t gone away the way people [er, like me] predicted.
If it turns out that we as a culture don’t value these objects, that we want to pay $9.99 for access to everything, there’s not a lot that I can do other than point out the virtue of this other path.
Q: Are you identifying values connected to our ownership of tangible items that we ought to be defending as we move to digital items?
A: “Property functions as a stand-in for individual freedom.”Property functions as a stand-in for individual freedom. It gives individuals the right to make choices without asking anyone for permission. Thirty years ago, you could repair your car without asking anyone for permission.
Q: Have there been court cases about medical devices?
A: Not that I know of. But we give some examples in the book where individual users want to improve their functional. Manufacturers don’t want to let users monkey with them. Car companies say the same thing.
Pardon me while I agree with him, including about blockchain’s positive promise.
Culture is the ultimate analog phenomenon, even when it’s communicated digitally, for it is only culture to the extent to which people—we—make it our own. We understand our lives and our world through culture. If we can’t appropriate it, re-express it, and re-use it, culture simply dies.
As Peter says, blockchain could perfect the system of tracking and control, leading us further into the tragic error of thinking that ideas and culture are property. Property has boundaries and borders that can be precisely demarcated and can be defended. Culture by definition does not. Blockchain technology can further the illusion that culture is property.
While blockchain will have a positive, transformative effect on systems where trust is valuable and expensive, it almost inevitably will also be used to impose restrictions on the appropriation of culture that lets culture thrive. If so, I expect we’ll see the same sort of response that we’ve already seen to the Internet’s inherent transparency—the transparency that has simultaneously made it the liberator of culture and the surveillor’s wet dream: We will route around it with some degree of success. And we will—I hope— continue to encourage an ethos of sharing in which creators explicitly exempt their works from the system of copyright totalitarianism.
The license you adopt will be your uniform in the coming culture wars. It already is.
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 Second Circuit Court of Appeals today upheld the decision that permits Google Books to scan and index books to make them searchable and for data mining. The court agreed that this is fair use. It also generalized the prior court’s finding so now libraries can also scan their own collection, so long as they provide access as limited as Google Books does. Woohoo!
The Authors Guild has now vowed it’s going to appeal to the Supreme Court. But I don’t get it.
Not that this necessarily matters to the legal case, but has the Authors Guild been able to attribute any actual damage to Google Books? Their site today says:
America owes its thriving literary culture to copyright protection. It is because of that success that today we take copyright incentives for granted, and that courts as respected as the Second Circuit are unable to see the damaging effect that uses such as Google’s will have on authors’ potential income.
If Google Books hasn’t produced any visible damage so far, shouldn’t that count as evidence that “uses such as Google’s” are unlikely to damage the interests of AG’s constituency?
Google Books will indeed harm the market for books,
Further, if Google’s doing so is fair use, then it sets a precedent allowing anyone to digitize books for similar purposes, which inevitably will lead to widespread, free, and unrestricted availability of books online.
But at this point, eleven years after the beginning of the suit, shouldn’t they be able to demonstrate some of that inevitable harm? Did the prior ruling lead to any increase in the unrestricted availability of free books online?
No, it is not. (Of course, talking about the illegal sharing of music as “piracy” is ridiculous, as would be obvious to anyone who’s ever met an actual, non-arrrrr pirate. Which I have not.)
Is turning a page in a magazine without reading the ad piracy? Is going to pee during a commercial piracy? Is keeping your eyes on the road instead of looking at the billboards piracy? Is it piracy when a TV show blurs the name of a product on the tee shirt of a passerby?
There’s only one difference between those acts of non-piracy and what happens when you run an ad blocker such as AdBlock Plus in your browser. When you turn the page on a magazine ad or fix yourself a big bowl of Soylent during a TV commercial, the magazine publishers and the TV station don’t know about it. That’s the only relevant difference. Whether the provider of the ad knows about it or not is not relevant to whether it’s piracy.
It is, of course, relevant to whether the Web page gets paid for the ad. So the suggestion that we turn our ad blockers off to support the content that we appreciate — which on particular pages I in fact do — amounts to urging readers to conspire with websites to pretend that we’re reading the ads, wink wink, so that the website can get its cut…for delivering no value to the advertisers.
A business model based on a conspiracy to maintain a delusion is itself delusional.
In fact, as Doc Searls points out, it’s a delusion based on a falsehood: the belief that we are always shopping. We’re not, even though advertisers would like us to be always-on “consumers.”
And, by the way, here’s a related delusion: The idea that popup ads that obscure the content we’ve come to see are worth the ill-will they generate. That delusion depends upon ignoring the scientifically calculated FYR: the ratio of the Fuck You’s muttered by the recipients of these attentional muggings versus their intentional click-throughs.
I’d tell you what my personal FYR is, but you can’t divide by zero.
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.
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!