Charlie Leadbeater has a terrific post on the threats posed by the fact that The Cloud (as in “cloud computing”) too often actually is a recentralizing of the Net by profit-seeking companies.

The easiest example cited by Charlie is Google Books, which provides a tremendous service but at the social cost of giving a single company control over America’s digital library. The problem here isn’t capitalism but monopolization; an open market in which other organizations could (the pragmatic “could,” not the legal or science fiction “could”) also offer access to scanned libraries would create a cloud of books not solely controlled by any single company. (The Google Books settlement threatens to rule out competition because without an equivalent agreement with publishers and authors, any other organization that scans and provides access to books runs the strong risk of being sued for copyright infringement, especially when it comes to books whose copyright holders are hard to find. The revision of the Settlement is less egregiously monopolistic.)

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Joe Karaganis, of the Social Science Research Council, is giving a talk at the Berkman Center on a six-country study on media (music, film and software) piracy. The study began in 2004 and should be available in March.

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.

“The elephant in the room” they thought was piracy. Previous studies on access to media tended to avoid the issue of piracy. “The media ecology is still an ecology of piracy.” “We saw a role for a broader social-scientific approach to these issues.” The point of diminishing returns had passed for increasing the strength of IP laws, he says, so countries have been focusing on enforcement. “We began to frame a project that would ask a different set of questions.” It wanted to look not only the costs of piracy, but also at the benefits especially in developing countries. At first, they were more interested in skeptically examining industry reports, but many others started doing this, so it became less of a focus. They’ve tried to separate piracy and counterfeiting, which are usually considered together, because “they have less and less to do with each other in actual practice.”

Three areas of research:

Pricing: The persistence of high and relatively uniform media prices in the developing world; the industry wants to protect the value of their goods in Western markets rather than worrying about making it available in the developing world. Uniform and high prices plus poverty is pretty much the recipe for piracy.

The structure of policymaking: The primary role of the RIAA is to filter info about piracy into the US Trade Representatives and other policy-making organizations, through the IIPA. The IIPA has stimulated many studies on piracy globally and ahs set the terms of the debate.

Thge organization of enforcement.

Joe shows a table of prices of Coldplay’s Viva La Vida in six countries. The legal price ranges from $8.50 in India to $20.50 in S. Africa (US dollars), but compared to the local incomes, the price is $760 in India and a “mere” $75 in Mexico. But the pirate price in India is $0.40-$1.2, with a corresponding drop in the price compared to local income. The prices are much lower for legal copies of domestically-produced CDs. Same is true for movie DVDs. Where a local company owns its distribution, the prices tend to compete with pirates. Joe says that over the past 10 years, the price of pirated copies has dropped to very close to marginal prices. We’re at a transitional moment, he says, to purely digital media.

He shows a chart of the structure of policy-making organizations, with industry associations feeding into the IIPA, which hands them off to the USTR, which then passes them through 85% of the time. Joe says the study has spent a lot of time unpacking the IIPA’s annual table of losses due to piracy in multiple countries; the data is opaque, although it’s becoming less so. (The IIPA does not compile info about the US.) The table shows “levels,” i.e., what percentage of media in a country are pirated. In Argentina, it’s 75% of business sw. In Brunei, it’s 100% of music.

A questioner points out that not every pirated work would have been purchased if it could not be pirated. Joe says the report goes into the methodological terrain pretty deeply. But, he says, “the default is secrecy” in these reports. “All of this is a black box, and very deliberately so.” He says that their credibility has so eroded that they’d do better to become more transparent.

The USTR can put you on a watch list, priority watch list, and a priority foreign country list “which is a fast track to sanctions.” The acceptance of the WTO, however, meant that sanctions could not be applied to WTO members (because it requires multilateral processes), so the sanctioned countries graph flatlined. The number of warnings, however, went up.

There are few prosecutions in most countries, but lots of raids to confiscate goods. The raids become the punishment. “The industry groups have successfully enlisted the police” but have run into obstacles on the judicial end. In the few cases that can be prosecuted, there are “spectacular punishments.” There has been competition for enforcement resources among companies that have access to them. The industry is so woven into the enforcement process, they can direct and even fund the raids. “There’s just no boundary between public and private power.” Film companies are the best at deploying state resources. The demand for enforcement gives rise to business models, starting with bribing the police, to blackmailing people who have been detected with infringing materials.

Q: Is it understood by the populace that they’re doing something illegal?
A: Yes, but it’s an everyday activity.
Q: Are people worried about being caught?
A: Other countries than the US don’t focus on consumer-level enforcement.
Q: In my country people don’t know it’s illegal.
A: In our research, there’s usually no ambiguity. The lower price is the figure.

Q: Correlations?
A: There are loose correlations between GDP and piracy, but they vary according to media type. The content business model is to keep prices high and just wait it out for incomes to go up. Of course, the price of tech is dropping faster than income is growing.

Piracy is de-formalizing, he says. It’s no longer the small storefront. It’s the street vendor and others less vulnerable to raids. Enforcement against retail optical disk sales has worked. But that just pushed it out into the street.

Q: Do the charts include works that are distributed as unlicensed as intended?
A: It’s a black box.

Q: Do people have a reason to buy legal works for anything except fear of enforcement?
A: There’s no fear of enforcement. People buy legal works only for other reasons. In several of the countries, there are home-grown enforcement campaigns that come from domestic artists.

Q: What will be the take-away of the report?
A: It won’t be liked by industry lobbyists because it departs from the theft narrative that has defined the debate. It’s written from the perspective of the developing economies, where the reasons and conditions for piracy are just not part of the piracy of debate. You never hear about problems of pricing, for example. Our goal is to encourage developing cvountries to ssert more control over their IP policies and enforcement in order to enrich their own culture.
Q: Is there anything a developing country can do about pricing?
A: Depends on the sector. E.g., the biz sw strategy is to allow rampant priacy to ensure universal adoption, and then they begin to enforce against the most vulnerable institutions: municipal gov’ts, etc. What’s the source of open source platforms here? Most govts have no demonstrated any consistent open source adoption strategy. A lot of half-baked strategies, but few fully implemented ones. But that seems to be an adequate outcome. They want a ubiquitous platform of supported sw, which they get with pirated copies of Windows and MS Office. The OS advocates are often being gamed by MSFT’s high-level strategy. “This is an optimal strategy for the software companies. Microsoft wouldn’t have it any other way.” The enforcement rhetoric doesn’t match the sw companies’ strategies. MSFT could enforce Windows 7 piracy in China, but if they did, Linux would be the standard overnight. They’re still growing 30%. If you’re an open sw advocate, piracy is a real problem [because it lets countries use Microsoft for free]. The President of Romania in 2007 at a press conf with Bill Gates in 2007 said that piracy is part of their relationship with MSFT. [It's a national freemimum policy - dw]

By the way, Joe says, they’ve found no connections between piracy and drug trafficking, prostitution, organized crime, or terrorism. There are little overlaps but nothing systematic. This is despite industry claims that piracy funds organized crime and terrorism.

Joe points to the famous Jack Valenti quote that the VCR is to the US film industry what the Boston strangler is to a woman at home alone. [God bless Valenti! We miss you, Jack! - dw] On the other hand, Robert Bauer of the MPA has said (Joe says) that we should treat piracy as a signal of unmet demand and that the task is then to “find a way to meet that demand.”

Q: To what are things like Blu Ray an attempt to stay a step ahead of pirates?
A: It recreates scare production, and thus the conditions for smuggling-based pirate economies. There are always opportunities for that to re-emerge. Blu Ray at the moment has no impact on the markets we looked at.

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Here is a letter Lewis Hyde sent to Judge Denny Chin who is considering the proposed Google Books settlement. I’ve also appended a supporting letter written by Eric Saltzman. The issue is that the newly-proposed trustee overseeing the handling of “orphaned works” (i.e., works that are still in copyright but whose copyright holders cannot be found) still does not have the power to adequately represent the interests of the rights holders, especially when it comes to allowing companies that are not Google to license the works. Granting Google a monopoly on these works seems like too much of a reward for Google’s scanning of them (which I’ve costs about $30/book), and does not seem to serve the interests of the rights holder or — more important, from my point of view — the overall social good of increasing access to these works. (Note: I am not a lawyer.)

So, here are the letters, minus some addresses, etc.:

 

---

27 January 2010 

Dear Judge Chin:   

I write to amend the letter of objection that I wrote last August in regard to The Authors Guild, Inc., et al. v. Google Inc. (Case No. 1:05-cv-08136-DC).  My August letter is on file with your office as Document 480.   

I shall here limit my remarks to provisions of the amended settlement that are changed from the original settlement, specifically to the role of the newly proposed trustee for orphan works.   

I object to the fact that, despite the amended settlement’s creation of an Unclaimed Works Fiduciary (UWF), the monopoly powers that Google and the Books Rights Registry will acquire, should the Court approve the orphan works elements of the settlement, still stand.  The settling parties have limited the role of the UWF such that he may discharge some duties of the registry in some circumstances, but little else.  He cannot act fully on behalf of the rightsholders of unclaimed books; he cannot, for example, license their work to third parties.   

To put this another way, it is still the case that an approved settlement will in essence grant the settling parties unique compulsory licenses for the exploitation of orphan works.  But why make such licenses unique?  If the Court and the settling parties believe that they can authorize compulsory licenses of any sort, why not go the extra step and grant such licenses broadly so that competing providers can enter this market?   

To address the problem of monopoly in the market for digital books the UWF should be empowered to act as a true trustee.  As such, he should make every effort to locate lost owners, communicate to them their rights under the approved settlement, and pay them their due.  Absent their instructions to the contrary, he should deliver the works of lost owners to the public through the efficiencies of a fully competitive market.   

As Chief Justice Rehnquist has written in regard to the larger purposes of our copyright laws:  “We have often recognized the monopoly privileges that Congress has authorized … are limited in nature and must ultimately serve the public good…” (Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994)).  In regard to both content owners and the public, then, the fiduciary needs to operate in an open economy of knowledge and, for that, he will need the freedom to license work to other actors.   

(Note:  I have asked my attorney, Eric Saltzman, to separately address the question of the UWF’s authority to license orphaned works to others; please see the attached addendum to this letter.)   

Yours sincerely, 

Lewis Hyde

Richard L. Thomas Professor of English

Kenyon College 

Addendum 

Eric F. Salzman

Re: The Authors Guild, Inc., et al. v. Google Inc. (Case No. 1:05-cv-08136-DC). 

Dear Judge Chin: 

My client, Lewis Hyde, tells the Court in his letter of January 27th that the new proposed settlement cannot be fair to the owners of the copyrights in the orphan works and to the public unless it allows the Unclaimed Works Fiduciary to make licenses to other providers to allow competition with the monopoly plan that Google and the Plaintiffs now propose to the Court.   

I would like to offer the Court additional support for Professor Hyde’s objection and suggestion.   

If the named plaintiffs or others who “opt in” to the settlement wish to sign on to it with their own copyrights (and if it survives any antitrust process), then that shall be their prerogative.  However, the combination in this class action lawsuit of inadequate representation and significant actual conflicts among the so-called class should make the Court skeptical of granting a monopolistic license of the absent members’ copyrights.   

If the Court does decide to approve a settlement of the case, it should not approve one where Plaintiff’s counsel have consented to deliver the licenses for the orphan works to just one licensee. 

It would be a complete fiction to say that Plaintiffs’ attorneys have adequately represented the orphan works authors and their successors in interest in this case.  The original settlement proposal clearly demonstrated counsel’s willingness and ability to compromise or, at least, to ignore the orphan works owners’ interests in favor of the named plaintiffs who engaged them and whose assent they needed to cut the deal.  

The problem of plaintiff counsel shaping a settlement attractive to the clients before them at the expense of absent class members is a well-discussed problem in class action jurisprudence.  This Court may take notice of an incentive in that direction, the more than fifty million dollars of fees that Google has agreed to pay to Plaintiffs’ counsel if the settlement goes through.   

Allow me to point out two methods whereby the proposed settlements seriously shortchanged the orphan works owners to enrich other class members at their expense.  

The proposed settlement provides that “Google will make a Cash Payment of at least $60 per Principal Work, $15 per Entire Insert and $5 per Partial Insert for which at least one Rightsholder has registered a valid claim by the opt-out deadline” (Emphasis supplied). According to the settlement, total payments will amount to $45 million.  

By definition, no orphan work Rightsholders could meet this registration condition.  Thus was the settlement engineered so that the rightsholders of orphan works and their successors-in-interest would not and could not get any share of the up-front payments total.  

Evidently, in dividing up the scores of millions of dollars that defendant Google was ultimately willing to pay up-front (i.e., unrelated to yet unproven forthcoming revenues) to settle the lawsuit, counsel felt no obligation to share any of it with the orphan works owners, even if the rightsholder should later appear and wish to register and claim that payment.  This very large slice of the pie would go only to the known rightsholders, their de facto clients. 

This economic discrimination against the orphan works rightsholders went beyond just up-front payments. It also took unclaimed (after five years) revenues from exploitation of the orphan works and assigned them to the known rightsholders of other books, thus promising still further enrichment of the client sub-class with actual control over the settlement.   

That particular feature drew such unpleasant attention to the bias in representation in favor of the known rightsholders (and disfavoring the orphan works rightsholders) that it was written out of the settlement proposal now before the Court.  Nevertheless, the Plaintiffs’ counsel who now urge the court to approve this revised settlement agreement are the same counsel who, in the first settlement go-around, assured the Court then (as they do now) that they had adequately represented the entire class, including the orphan works rightsholders. 

Commonality and adequacy of representation are two touchstones for class certification.  “The adequacy inquiry under Rule 23 (a) (4) serves to uncover conflicts of interest between named parties and the class they seek to represent.” Amchem Prods. v. Windsor, 521 U.S. 591 at 625 (1997).  

In Amchem, the Supreme Court upheld the Third Circuit Court’s decertification of the class because it found that “…the settling parties achieved a global compromise with no structural assurance of fair and adequate representation for the diverse groups and individuals affected. The Third Circuit found no assurance here that the named parties operated under a proper understanding of their representational responsibilities. That assessment is on the mark.” Id at 595. 

As demonstrated above, much less than promising the “structural assurance of fair and adequate representation for the diverse groups and individuals affected”, the settlements that were and are proposed to this Court suggest that advantaging the named class members at the expense of the unrepresented orphan works rightsholders was a goal successfully achieved during the settlement negotiation. 

Accordingly, if the Court will entertain a settlement, it should itself take on the burden of making sure that the orphan works rightsholders interests are well protected.  At this point, the best way to do so is to free the orphan works from the monopoly straitjacket that the proposed settlement forces on them.   

Let the parties live with the deal they made for the parties who were, in fact, adequately and aggressively represented. For the inadequately represented sub-class, the orphan works rightsholders, the Court should empower the UWF (or similar fiduciary) to license their works into the open market. With this authority going forward, the UWF will, as well, be able to adjust licensing of digital rights in these works to the market conditions in an area that is still very new and sure to develop in ways that are, today, impossible to predict.   

Professor Hyde’s objection addresses the two enormous flaws in the proposed settlement:  1. the actual conflicts within the class together with the failure of adequate representation of the orphan works rightsholders, and 2.  the anti-competitive effect of the full copyright term license it would grant to Google only.  The first undermines both the process by which the settlement was achieved and, correspondingly, the public confidence in the courts.  The second hurts both the orphan works rightsholders and the strong public interest in access to the knowledge and creativity these books offer.   

Short of a initiating a new attempt at settlement — with new counsel for the orphan works rightsholders — the changes Professor Hyde proposes would achieve a result that would be fair for all the parties and for the public.   

Very truly yours, 

Eric F. Saltzman, Attorney 

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Jeff Goldenson at Harvard Law Library’s Digital Lab (Disclosure: I’ve just started consulting there) has been thinking about the benefits and pitfalls of embedding metadata into JPG images. That happens already, and some of it can be quite useful, although some can be a little creepy.

He and I were talking and began to wonder if there’d be utility in embedding Creative Commons license info into JPGs. So, let’s say you post a snapshot and you want to make it available under a Creative Commons license that allows people to reuse it so long as they attribute it to you and agree to let others reuse it under the same license. That information — including your preferred attribution and a link to the page you want it linked to — would be hidden within the JPG file.

Why bother? Because it would mean that the license info travels with the image. Otherwise, the chain of licenses and attributions can too easily be lost as B republishes a snap posted by A, and C republishes B, etc. The game of License Gossip just about ensures the chain of license info will not be unbroken.

At least as important, if this metadata were inserted in a standardized form, applications could begin using it, making the CC license both more useful and more visible, thus encouraging more people to use it. For example, someone could write a Firefox extension that would insert under any CC’ed image a line such as: “Share this image. Just be sure to include this attribution: (cc) [name] [license],” etc.

For this idea to have any effect, someone (Creative Commons?) would have to promulgate the standardized format for the embedded info, someone would have to write a metadata editor/inserter, and apps would have to add features take advantage of it. It’d help, for example, if Flickr were to let us set a preference for embedding the metadata into any photo we post there under a CC license.

Down sides? Well, the idea is unlikely to take off. And I suppose there’s a chance that the Big Content industry would start to insert their copyright info using the same mechanism, and thus would have something like a “broadcast flag” with which they could try to beat up browser makers and others who make create apps that display images: “Whenever your app displays images with copyright metadata, we insist you turn off the Copy entry on the context menu.” (IANAL, but I believe such a demand would have no legal basis, but since when does that have anything to do with it?)

Care to punch holes in this idea? Point to people who have already done it?

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Wendy Seltzer has posted an article that will run in Berkeley technology Law Journal (Jan. 25 2010) . In it she argues that the problems with DRM go beyond its failure to accommodate Fair Use:

The fair use debate is important, but it is not the only problem with DRM. Equally important, but thus far largely overlooked, is the impact on user-innovation and on the permitted development of media technology. Because DRM systems, by design and contract, must be hardened against user-modification, they foreclose a whole class of technology and mode of development. Moreover, this problem is distinct from that of fair use. Even if we could wave a magic wand and fully accomodate fair use in DRM, the incompatibility with user-innovation would persist, because it stems from a different and deeper aspect of the DRM system. Even the “fairest” DRM systems on the market today are unfair to the developers of new technology.

Anticircumvention law, backing TPMs [Trusted Platform Modules] and robustness rules, is fundamentally incompatible with deep-level user innovation…

Here is Wendy’s “Tell ‘em what you’re going to tell ‘em” paragraph:

First I briefly review the history and existing academic debates around DRM to consider why they have so overlooked the user-innovation impacts. The next sections examine the law and technology of digital rights management, particularly the interaction of statutory law, technological measures, and the contractual conditions generally attached to them. I focus particularly on the “robustness rules” in licenses at at this inter- section. I then introduce the rich literature on disruptive technology and user innovation, to argue that these copyright-driven constraints significantly harm cultural and technological development and user autonomy. I conclude that the mode-of-development tax is too high a price to pay for imperfect copyright protection.

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In this edition of Radio Berkman, Cory Doctorow argues in favor of copyright … the part of copyright that protects the rights of readers to own (and not just license) books.

It being Cory, the discussion covers topics such as the way in which books are like dogs and his sentimental attachment to his digital collection.

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I’ve posted a video interview with Cory Doctorow at Broadband Strategy Week. Cory talks about the disproportionality of “three strikes” laws that take away Internet access from those who have been thrice accused of copyright infringement. Perhaps, he suggests, we should also take away Internet access from rightsholders who inaccurately accuse people of infringing copyright. The six minutes are a string of wonderful Cory paragraphs.

Cory’s new book is Makers. His explanation of why he Creative Commonses his books is classic Cory. Which is a very excellent thing.

BTW, right before this, I interviewed Cory for a Radio Berkman podcast that will be up soon. We talked about the future of books as objects you can own.

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Google has announced a revised settlement [redlined pdf faq pdf] that it hopes will address the concerns raised by the Department of Justice and many other groups.

Here’s a summary of the summary Google provides [pdf], although IANAL and I encourage you to read the summary, which is written in non-legal language and is only 2 pages long:

1. The agreement now has been narrowed to books registered for copyright in the US, or published in the UK, Australia or Canada.

2. There have been changes to the terms of how “orphaned works” (books under copyright whose rightsholders can’t be found) are handled. The revenue generated by selling orphaned works no longer will get divvied up among the authors, publishers and Google, none of whom actually have any right to that money. Instead it will go to fund active searching for the rightsholders. (At the press call covered by Danny Sullivan [see below], the Authors Guild rep said that with money, about 90% of missing rightsholders can be found.) After holding those revenues in escrow (maybe I’m using the wrong legal term) for ten years (up from five in the first settlement), the Book Rights Registry established by the settlement can ask the court to disburse the funds to “nonprofits benefiting rightsholders and the reading public”; I believe in the original, the Registry decided who got the money. So, in ten years there may be a windfall for public libraries, literacy programs, and maybe even competing digital libraries. (The Registry may also (determined by what?) give the money to states under abandoned property laws. (No, I don’t understand that either.))

The new settlement creates a new entity: A “Court-approved fiduciary” who represents the rightsholders who can’t be found. (James Grimmelmann [below] speculates interestingly on what that might mean.)

3. The settlement now explicitly states that any book retailer can sell online access to the out-of-print books Google has scanned, including orphaned works. The revenue split will be the same (63% to the rightsholder, “the majority of” 37% to the retailer).

4. The settlement clarifies that the Registry can decide to let public libraries have more than a pitiful single terminal for public access to the scanned books. The new agreement also explicitly acknowledges that rightsholders can maintain their Creative Commons licenses for books in the collection, so you could buy digital access and be given the right to re-use much or all of the book. Rightsholders also get more control over how much Google can display of their books without requiring a license.

5. The initial version said Google would establish “market prices” for out of print book, which seemed vague because what counts as the market for out-of-print books? The new agreement clarifies the algorithm, aiming to price them as if in a competitive market. And, quite importantly, the new agreement removes the egregious “most favored nation” clause that prevented more competitive deals to be made with other potential book digitizers.

From my non-legal point of view, this addresses many of the issues. But not all of them.

I’m particularly happy about the elements that increase competition and access. It’s big that Amazon and others will be able to sell access to the out-of-print books Google has scanned, and sell access on the same terms as Google. As I understand it, there won’t be price competition, because prices will be set by the Registry. Further, I’m not sure if retailers will be allowed to cut their margins and compete on price: If the Registry prices an out-of-print book at $10, which means that $6.30 goes to the escrow account, will Amazon be allowed to sell it to customers for, say $8, reducing its profit margin? If so, then how long before some public-spirited entity decides to sell these books to the public at their cost, eschewing entirely the $3.70 (or the majority of that split, which is what they’re entitled to)? I don’t know.

I also like the inclusion of Creative Commons licensing. That’s a big deal since it will let authors both sell their books and loosen up the rights of reuse.

As far as getting rid of the most favored nation clause: Once the Dept. of Justice spoke up, it’s hard to imagine it could have survived more than a single meeting at Google HQ.

Reactions from the critics has not been all that positive.

James Grimmelmann is studying it carefully, but quickly put up a substantial and detailed evaluation of the revisions. He is deep into the details.

The Open Book Alliance (basically an everyone-but-Google consortium) is not even a little amused, because the new agreement doesn’t do enough to keep Google from establishing a de facto monopoly over digital books. The Electronic Frontier Foundation is not satisfied because no reader privacy protections were added. Says the ACLU: “No Settlement should be approved that allows reading records to be disclosed without a properly-issued warrant from law enforcement and court orders from third parties. ”

Danny Sullivan live-blogged the press call where Google and the other parties to the settlement discussed the changes. It includes a response to Open Book Alliance’s charges.

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BoingBoing reports boingnantly on the miserable enthusiasm of the (unelected, heavily-lobbied) European Commission for making it illegal to provide families with an Internet connection if any member is accused of having violated copyright three times.

Take a look at your hard drive and tell me for sure that a judge reviewing the charges in a 1-2 minute traffic-court style proceeding would not find you unworthy of a European Internet connection. Three Flickr photos you passed around because they were amusing? Three newspaper articles you downloaded and attached to emails you sent to friends? Three recipes you enjoyed and shared with your family? Three attachments friends sent you that you didn’t ask for but didn’t bother deleting because you didn’t even realize they were copyrighted? Three extended quotes from medical information sites sent to an ailing relative?

And, by the way, downloading copyrighted material is not necessarily a violation of copyright. Fair use creates exemptions that are based on factors other than mere possession.

This rule has nothing to do with advancing our arts, sciences, education, government, or economy. So, if the EC passes two more stupid/insane/corrupt (your choice) laws, can we disconnect them from governance? Please?

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Dewyane Hendricks, one of the foremost implementers of wireless networks anywhere, and a guy so far over the leading edge that the leading edge asks him for directions, talks about the rise of the “darknet” (dark net?) in a 5-minute interview at Broadband Strategy Week, my set of video interviews about, well, broadband strategy. On the Darknet you can get just about any content you want, especially in the gated communities where sharers trust one another. Dewayne thinks that we’re not paying enough attention to this when we think about policy, especially since the Darknet is getting more accessible all the time.

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By the way, if Ellen Degeneres wants to respond in a reasonable and constructive way to the lawsuits over her use of song snippets to dance to, she could always start using Creative Commons-licensed music, with a nice plug for the open-hearted musicians making our lives more tuney.

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Matthew Battles has written a proposed Terms of Service for books. It highlights the strengths of printed books, but Matthew is careful to avoid any reference to print vs. digital. In an email he writes: “Whether in print or pixels, the terms of the public sphere should be taken into consideration.”

Amen.

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Wow. This condescending site from the RIAA looks surprisingly like the parody site that I and some friends did in 2004. Amusing.

(I just reposted that second site at hyperorg.com, rather than at its original site.)

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The latest Radio Berkman episode has me interviewing Steve Schultze about his RECAP project that posts public domain legal records that otherwise you’d have to pay to access. And the federal courts are not all that happy about it.

[Tags: law public_domain pacer recap copyright copyleft everything_is_miscellaneous ]

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Tucows is participating in the Canadian copyright consultation process. Rather than submitting a comment written in the usual lawyerly prose, Elliot Noss, Tucow’s CEO, asked me to write up something about copyright in my usual imprecise and incoherent prose. I like Elliot a lot, and I care about copyright, so I wrote about the argument that without strong copyright protection, creators won’t have an incentive to create. The piece is now posted… [The next day: I absolutely should have mentioned that this was a commissioned piece. I.e., Elliot paid me to write something, and posted it unaltered.]

[Tags: copyleft copyright culture canada everything_is_miscellaneous ]

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The RIAA has won a ruling that the DMCA’s provision that forbids backward engineering software to see how it work applies also to musical recordings. The ruling forbids any attempt to figure out the melody, arrangement, or chord progression of any copyrighted song, whether that figuring out is done mentally, at a keyboard, or using software. It also forbids graphical displays based on the music, including the psychedelic visualizations that come with many music players or the tapping of feet to beats embedded in a copyrighted work. An exemption has been made for those with perfect pitch, although they are not allowed to transmit or communicate the internal structures of music that they have mentally decoded.

The RIAA has also announced that it will sue to protect all who claim unique musical contributions to the culture. As a result, Pat Boone now owns the Motown sound, John Lennon owns singing above one’s natural range as a way of expressing emotion, Cat Stevens owns singing below one’s natural range for the same purpose, and Van Morrison has been awarded custody of any two-chord song to which musicians improvise while high enough on marijuana that they think other people are enjoying it.

An RIAA spokesmen expressed delight with the ruling and the new set of protections: “We think we’re now within sight of producing the last two or three original songs, and then the entire culture can call it a day.”

[Tags: satire copyleft copyright dmca riaa ]

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TechDirt reports that some doctors are having patients sign contracts that say the patients won’t rate the doctor online. Worse, the contract assigns to the doctors the “intellectual property” rights for anything the patient may write about the doctor. So, if the patient rates or reviews the doctor on a public site, the patient has violated the doctor’s copyright. This then enables the doctor to issue a DMCA takedown notice to get the site to remove the patients’ review.

Copyright. What can’t it do? Wow.

[Tags: copyright copyleft medicine dmca ]

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Doc does a yeoman’s job (were there yeowomen?) pulling together some links in which copyright is debated. I haven’t made my way through all of them, but I can already recommend the post…

[Tags: copyleft copyright ]

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Jake McKee was the Global Community Relations Specialist at Lego. In his essay in the tenth anniversary edition of Cluetrain (subtle product placement, eh?) he tells how Lego learned to engage with its users, and how this was good for everyone. (Josh Bernoff writes about this here.) Lego was a great example of how a business can benefit by getting down off its high horse and playing in the grass with its customers. Thank you, Jake.

Now Jake is gone from the company, and Lego has become an excellent example of how to be a clueless, frightened laughingstock. A 14-year-old user used Legos to create a stop-motion homage to Spinal Tap, which Spinal Tap projected in concert and wanted to include in its DVD. Lego refused to give permission. As a company spokesperson said: “…when you get into a more commercial use, that’s when we have to look into the fact that we are a trademarked brand, and we really have to control the use of our brand, and our brand values.”

First, I am not a lawyer, but: No. The Lego logo wasn’t shown anywhere in the video, and it’s hard to believe that Lego could win a suit.

Second, No. How customer unfriendly can you get? You sell us something that enables us to create what we want, and now you say you get to control what we create? You won’t let us take photos or videos of what we create? Does Crayola get to tell us we can’t post photos of the inappropriate messages I write with their crayons, because it might hurt their image among their target audience of 3-9 year olds and cretinous participants in political debates?

So:

Top Five Inappropriate Items to Construct out of Legos™ brand Legos™, owned by Lego Systems™, a Lego Group™ company

5. Lego™ Mindstorms™ dildo

4. Lego™ ThePiratesBay ship logo

3. Lego™ world’s most ineffective and uncomfortable condom

2. Lego™ official Spinal Tap™ Mud Flaps

1. Lego™ giant upraised middle finger

[Tags: copyleft copyright drm trademark spinal_tap harry_shearer ]

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Jason Calacanis has an excellent post making the case against Apple, from an Apple fan’s point of view. I’m basically with him.

Doc Searls has long said that the key to understanding Steve Jobs — and thus to understanding Apple — is that Job’s an artist. We understand when an artist wants to maintain complete, obsessive control over his creations, especially when they are as beautiful as some Apple products are. But it’s not just artistry at work at Apple. Apple tends towards totalitarianism.

You can see why in its computer architectures: Its products work because they’re relatively closed systems that run tightly controlled hardware, unlike Microsoft’s operating system that has to be able to work on just about every piece of hardware that comes along. And Apple’s stuff generally works beautifully. (I switched from Windows to the Mac about three years ago.) But the hardwired connection between the iPod and iTunes — only recently loosened — is there not to benefit users, but to meet the DRM needs of recording companies and to tether users to Apple. The hardwired connection between the iPhone and the App Store represents a disturbing direction for the industry, in which Apple acts in loco parentis to protect users from their own software decisions, and (apparently) to exclude products they believe hurt the business interests of their partners. The App Store’s success makes it particularly threatening; it’s easy to imagine Apple’s rumored tablet adopting the same strategy, then other companies following suit.

It’s not an unmixed picture, of course. The removal of the egregious DRM from iTunes is a step forward, and seems to have been a step Apple eagerly took, and the movement of the Mac’s OS onto Unix added admirable transparency. Plus, Apple makes some beautiful stuff that works beautifully.

I just wish that going forward, I felt more confident that Apple is on our side, not just as customers but as digital citizens.

[Tags: apple drm copyright copyleft computers microsoft jonathan_zittrain generativity ]

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Marc Bourgeois is doing some excellent blogging of the RIAA v. Tenenbaum trial. Fascinating.

Tags: tenenbaum riaa joel copyright copyleft nesson law

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1. The court has rejected Charlie Nesson’s basic defense of Joel Tenenbaum’s sharing of music files. The case is going to jury which may levy the same sort of insanely excessive fines as in the Jammie Thomas-Rassert trial. I hope Charlie’s team can convince the jury that the fines and the entire process are so onerous and disproportionate that the RIAA has been abusing the court system. Of course, IANAL, and IANAOTJ (I am not on the jury).

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2. Barnes and Noble has launched its e-book software. It runs on iPhones as well as on PC’s and Mac’s. I’m having trouble finding which formats it supports, but judging from its Open dialogue, not PDF, .doc, .html, .mobi, or text. It does support .PBD books.

After a very very quick session playing with it, it seems quite competitive with the Kindle, and because I’m running it on my Mac and not on the little piece of crippled hardware I bought from Amazon — the Kindle is just barely adequate as a reader, and is still overpriced by more than 100% in terms of its value, imo — having the use of a keyboard and a mouse is a big step up. And, unlike the Kindle, you can use whatever fonts you have on your machine. Still, it’s only incrementally better than the Kindle’s software (again, on a quick look), not a great leap forward for readers.

One of B&N’s big advantages is that it’s hooked into Google Books, enabling you to download public domain books that Google has scanned in. You do this by searching for a book on the B&N site and noticing the “free from Google Books” label. Be sure to sort by price; otherwise B&N lists the for-pay versions first. If B&N wants to be aggressive in this space (= succeed), it should create an easy-to-find section that lets you browse Google’s free books. Get us using the ereader and then sell us the copyrighted books. (If B&N has such a section, I couldn’t find it quickly enough.)

BTW, I presume (and thus may be wrong) that Google did a special deal with B&N to enable this. If so, I find it worrisome. If Google is going to be granted a special right to scan in books without fear of copyright reprisals, it will be the de facto national e-library, discouraging others from undertaking similarly scaled scanning projects, and thus should be making its public domain books equally and maximally freely available. IMO.

2a. [Later that evening:] B&N stores are now providing free Wifi. Yay!

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3. Apple is not permitting the Google telephone service into the Apple App store, thus simultaneously and inadvertently making the case for Zittrainian generativity.

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4. [Later that day]: On the happy front, Google has open-sourced an implementation of Wave.

[Tags: copyright copyleft books e-books google libraries everything_is_miscellaneous charles_nesson jonathan_zittrain law fair_use amazon kindle b&n ]

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The AP has announced it is going to use an automated system to monitor the use of AP content on the Web, looking for copyright violations. The empire is fighting back. From the press release:

The Associated Press Board of Directors today directed The Associated Press to create a news registry that will tag and track all AP content online to assure compliance with terms of use. The system will register key identifying information about each piece of content that AP distributes as well as the terms of use of that content, and employ a built-in beacon to notify AP about how the content is used.

I think there are three possible broad-stroke outcomes:

1. The AP takes an enlightened and generous view of copyright protection and its terms of use, encouraging people to link to and cite its stories, and saving its angry face for commercial thieves, wholesale infringers, and other scum. The AP remains a major source of news, fulfills the social mission of the newspapers who are its members, and our culture is better off for it.

2. The AP’s automated system is set on a hair trigger. The AP protects its copyright so well that no one ever hears from it again.

3. The AP acts inconsistently. It sends scary letters to teenagers who copy three paragraphs about the Jonas Brothers and sics lawyers on a professor teaching a course on media studies. No one understands what the AP is doing, so we all get scared and hate it.

To start with, it’d be great if the AP’s copyright warnings didn’t just tell people what they can’t do, but also told them what they can do, and encouraged us to re-use the material as much as possible. On the other hand, since one of the aims of the new system (according to the press release) is to facilitate the use of pay walls, I expect we’ll see more of the AP’s content making itself irrelevant.

[Tags: ap media journalism free copyright copyleft everything_is_miscellaneous ]

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David Pogue reports that Amazon has deleted some books from people’s Kindles, even though people had paid for them. It seems that the publisher decided it didn’t want them offered after all. [NEXT DAY: More exactly, the publisher that owns the copyright objected to another publisher selling the book.] So, Amazon deleted the books and credited people for their purchase.

The books were George Orwell’s Animal Farm and 1984. OMG.

[Tags: amazon digital_rights copyleft copyright app_store ]

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Giorgos Cheliotis of the National Univ of Singapore, and a visitor researcher here at the Center, is giving a lunchtime talk at the Berkman Center called “Mapping the Global Commons: A quantitative perspective on free cultural practice.” How large and free are the Commons? (He’s excluding open source software from his discussion of the Commons)

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.

Giorgos has been working with Creative Commons. He points to a number of works, including by Lessig, and David Bollier’s “Viral Spiral,” which is a history of the digital commons. If the movement is old enough that histories are being written, Giorgos says, it may be time to take a fresh look at it.

He says the digital commons consists of shared resources, users, open licenses, and remixes. To measure its size, you can ask how people use it, how many resources in it, how quickly it’s growing, and how much is contributed back to the pool. How free the pool is will obviously affect how its gets used and remixed. All this is hard to measure, Giorgos says, because there’s no central registry. One approach would try to count everything that’s there. Another uses estimates, community-specific data, and external reports and local knowledge. Giorgos uses the latter technique. There is a trade-off between scale and accurate/richness of the data set.

He and his colleagues are building a live-data wiki platform to track the global development of open licensing (CC only for now): http://monitor.creativecommons.org. (It’s early beta, pre-release, and still under development.) Giorgos walks us through it. [You can give it a try yourself. It's self-explanatory.] AT the moment, the wiki says that there are 170,268,161 Creative Commons-licensed works. At the site you can break this down by region. Asia is growing quickly. Brazil has lots. Spain is ranked #1. (You can zoom in on the map by drag-selecting an area.)

The project is aimed at the media, researchers, funding organizations…

The regions each have a “freedom score” that weights the CC licenses by how restrictive or permission they are. The overall weighted average is 3.29 out of 6. US: 3.1. Spain: 3.47. Brzil: 2.34. Thailand: 2.58 (which is a decrease). Korea: 1.76 (but lots of licenses). Giorgos says that presenting this data sometimes nudges people to work on boosting their country’s score.

The tables of data and the maps generated from them are automatically generated and cannot be changed by wiki users; the annotation and commentary can be changed. To see an example of a manually-curated page, see Singapore’s. Giorgos points out that this raises synchronization issues: The data is updated but the narrative may not be.

How now asks how much is being remixed. They’ve focused on ccMixter, where everything has a CC license and can be remixed. You can see the chains of influences. He shows a visualization of the data: Each track is a node, with lines connecting them to remixes. The maximum path length is 6 (a remix of a remix of a remix, etc.) But it drops off quite steeply after path length 2. 60% of uploaded items don’t get remixed, but remixing accounts for more than half of the total production volume. In a“bow-tie” analysis, there’s a core of about 12% core contributors whose authors’ tracks are linked to and who link out; if you take contests out of the picture, the core goes up to 18% (although about the same absolute number) and the “tendrils” go down from 50% to 20%. [Giorgos presents some other visual analyses, but I can't follow the visual presentation of quantitative information. Sorry. It's a brain problem of mine.] In the core, there are more reciprocal relationships, which seems to show that the members of the core community see one another as peers.

33% of generation 1 remixes are contest entries: An artist or label sponsors a contest for the best remixes of a track. Contests attract one-time remixes who are “not productive otherwise in the community.” But, are contests part of a sharing economy, he asks? Some scholars say that contests help strengthen a sense of community. Giorgos is uncertain about what to make of contests.

Q: [me] Public domain? Media types?
A: Neither of those types of metadata are easily available.

Q: CC has the metadata about the media type. And it would be interesting to see how the licenses vary by media type.
A: It’s possible, but we haven’t done it so far. I have noticed that photographers tend to be more protective of their content than are musicians.

Q: Maybe photographers are worried that their work will be used to create a false image, which isn’t an issue for musicians.
A: I think that’s probably right. Music is usually used for entertainment. Photos are also used for information.

Q: What are you aspirations for this as data collection project?
A: I was motivated initially to do this [Tags: creative_commons copyright copyleft ]

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NOTE: The 50 copies are gone. Took about an hour.

I’m trying an experiment with a business model I like to call a reverse referral fee. Here’s how it works…

You click on a link that lets you download a copy of Brad Sucks’ latest album, Out of It. The album of wonderful music is yours for free in every sense. (Share it! Please!) But, I’m going to pay Brad for each copy downloaded, at a bulk rate he and I have agreed on.

This offer is good for the first fifty people who download it. After that, you can buy a copy on your own. Of course, Brad also makes his music available for free (in every sense), but don’t you want to support a truly webby, big-hearted musician who’s giving us his talent free of copyright, studios, and DRM? Doncha?

So, if you want to be one of the fifty, click here for your free-to-you-but-not-to-me copy of Brad Sucks’ Out of It.

[Tags: bradsucks music drm copyright copyleft business_models everything_is_miscellaneous ]free ]

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Michael Geist — Canada’s free-culture bulldog — summarizes a Harvard Business School working paper by economists Felix Oberholzer-Gee and Koleman Strumpf “File Sharing and Copyright” that argues that the inability to strictly enforce today’s draconian and clinically insane copyright laws has in fact benefited society. It’s been slashdotted.

Tags: copyright copyleft everything_is_miscellaneous

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Newsy, a project in collaboration with Univ. of Missouri’s Journalism School, pulls together a half-dozen media reports on a topic, stringing them together with their own reporter-at-a-desk commentary. The sources include mainstream news and less mainstream news. For example, here’s Newsy’s meta-coverage of China’s new Net blockage:

Newsy is a manual curation and production project. At least during this beta phase, it seems to be doing one or two a day, which means they may have more luck getting their stories embedded elsewhere than in drawing a regular crowd to their own site. In fact, the site has announced a syndication deal with Mediacom to provide stories for mid-Missouri cable tv subscribers. (The project is also probably a Fair Use lawsuit magnet, unfortunately.)

[Tags: media news missouri global_voices everything_is_miscellaneous newspapers journalism copyright copyleft fair_use ]

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Lewis Hyde is giving a Berkman talk about the book he’s working on. The book is about the ownership of art and ideas, and argues that they should lie in a cultual commons, rather than be treated as property.

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.

Lewis begins by talk about what a commons is. The term comes from medieval property ideas, and Lewis thinks of commons as a kind of property. He asks the group for a definition of property. Suggestions from the audience: “Exclusive rights.” “Anything I can use and have some degree of control over, not necessarily exclusively.” Lewis says that a 1900 dictionary defines property as that over which one has “rights of action.” Property is a bundle of rights of action. Lewis likes this definition because it includes human actors, Blackstone defines property rights in maximalist terms: the right to exclude the entire universe. Scalia also thinks property is the right to exclude. Lewis thinks the right to exclude is one of the bundle, not the whole thing. This is because, he says, he’s interested in commons. (He notes that in medieval times, “common” could be used as a verb. E.g., “a man may commons in the forest.)

Lewis talks about Hardin’s “The Tragedy of the Commons” essay. In fact, traditionally commons had governance rules to prevent the destruction of the commons’ asset, including the right of exclusion. “Commons were in fact not tragic. They lasted for millennia in Europe. Not tragic because they were rule-governed and stinted.” Why has the phrase “The tragedy of the commons” persisted? In part, because the phrase is catchy. In part because Hardin proposed it during the Cold War and it was taken as showing that common-ism doesn’t work.

There used to be an annual ritual of “beating the bounds,” to keep any gradual encroachment on the commons. “These were convivial affairs.” Lewis wonders if there are ways we can recover this resistance to encroachment.

Applied to the cultural realm, Lewis thinks cultural products are by nature in a commons. In the 18th century you get the idea that we could own poems, novels, etc. Until then, people thought of property as applying only to land. If something is not excludable, there’s no property in it. Many argued in the 18th century that therefore artistic works can’t be property. (Lewis recommends Terry Fisher’s article on philosophies of property. Terry points to four : Labor, moral rights, commercial utilitarianism, and civic utilitarianism.)

The first copyright law was in 1710 (Statute of Anne). By giving authors and publishers rights, it removed the “in perpetuity” of the crown’s monopolistic grants. It also created the public domain by creating a clear limit on the term of ownership: After 14 years, it enters the public domain. It’s as if the commons is the default state, says Lewis.

Jamie Boyle talks about the “second enclosure” in which everything is copyrighted by default, the term is extended. The second enclosure is an enclosure of the mind, says Boyle. Lewis now thinks there might be a third enclosure: The enclosure of wilderness of the mind. Lewis agrees that it makes sense to let the creator of a work, say a novel, get rewarded for it. “I wrote it, so it’s mine.” But, asks Lewis, what does the “I” mean? What is the self? He cites a 12th century Buddhist: “We study the self to forget the self.” To forget the self is to wake up to the world around you. Creativity comes out of self-abnegation. To get to something truly new, you have to a door open to the unknown. We usually think that the outside of owned property is the public domain. But that’s a domesticated sphere, things we are familiar with. There’s a old tradition that during the period of maturation, you have to leave the known world, go away from where instruction is given, and become familiar with your ignorance. (Lewis says he’s drawing on Thoreau.)

He takes an example from Jonathan Zittrain. When the Apple II came out, there was a spurt in sales because the first spreadsheet emerged, something that had not been expected. If you want a generative Internet, you have to be careful about what you lock down. Another example: In the 1980s, San Diego cell biologists patented a sequence of amino acids. They didn’t know its biological purpose. Ten years later, other researchers think that that sequence blocks blood to tumors. The patent owners sued the researchers. The patent gums up the system. Exploratory science goes into the unknown. “To enclose wilderness means giving property rights in areas where we as yet have no understanding what’s happening.” Lewis adds: “This makes no sense.” Lewis would like us to restore the idea that there are things that are unowned.

Emblematic of the third enclosure is silence. John Cage in 1952 came to Harvard to see/hear a completely soundproofed room. But Cage could hear a low rumbling and high whining. The low rumbling is the sound of your blood and the high whining is the sound of your nervous system. Silence for Cage meant not no sound but non-intention. He composed “4 mins and 33 seconds” which is a stretch of silence. The audience hears the ambient noise. In 2002 a rock group called the Planets put in a minute of silence. As a joke/homage, they credited it to Cage. The royalty-collecting societies started to send checks to Cage’s publisher. The publisher sued for copyright infringement on moral rights grounds (i.e., misattribution). They settled. But Cage held a Buddhist-like view of artistic creation. He tried to remove the self. A lot of copyright law assumes the work contains the imprint of the author’s personality. That’s one of the reasons we give a copyright. But those laws can get in the way of our ability to live in the wilderness, i.e., the third enclosure. How do you become a creator in a world in which scientists can patent unknown sequences and silence can be copyrighted?

Q: Maybe part of the problem in defending the commons is that we say we’re defending freedom, not as in free beer. Fighting for free beer is more compelling than fighting for free speech.
A: Beating the bounds was a fun event. So, yes, people have to want to do this.

Q: [me] How do we counter the fairness argument: If I did it, I ought to get the reward. How do we respond to that?
A: It’s hard to do this in political debate because it’s a long argument. I raise the question of the “I”: To what extent is my contribution really from me? With cultural works, you’re working in a vast sea of existing material. What you create is not entirely yours. Even if it becomes popular and useful, it’s other people who made it so. You can also point to the utilitarian consequences: The public interest is advanced by enabling things to enter the public domain.

Q: [jason] You’re making a creativity defense, i.e., that the commons is generative. But, if we take Cage or Thoreau to heart and say that true creativity consists of transcending the self, could we say that that leads to saying all works should be owned, so that you’re forced to create something new?
A: The puzzle is how much you can actually go to the wilderness. You can face it, but there’s no way to escape the world you come out of. Thoreau has The Iliad with him. There’s no way to escape the known. You always work from materials you’ve collected elsewhere.

Q: [ethanz] What’s so bad about private property? You’re hearkening back to a romantic conception that worked for a very small set of people. We’ve got an enormous amount of development vased on increasingly strong enclosure movements. Those movements have given us a great deal of what we love. Despite the first and second enclosures, creativity seems not to have been much hindered. Why should we worry about the third enclosure? Couldn’t we say that you’re attempting to protect and defend something that most of us have not experienced? How do we know that your romantic vision is superior to the world we’re interacting with?
A: I’m not against private property. The question is always where the lines should be drawn. I think we’ve extended the right to exclude too far. Yes, the world is quite creative. But we don’t know what we’re missing. With the enclosing of wilderness, we’re enclosing that which we don’t know about. Researchers are reluctant to do certain kinds of work, for fear of being sued.
Ethan: My diabetes medicine — recombinant DNA — exists because Eli Lilly worked within enclosures. How do we know we would have made the same progress if those enclosures weren’t there?
A: Let’s leave that hanging as a question. It’s a good question. You’re right that the existing dominant system has produced remarkable results.

Q: Michael Heller in The Gridlock Economy goes through the economic models that explain what we lose by locking stuff down. What’s the cultural loss?
A: Lessig and others write books about this… [Tags: lewis_hyde copyright commons copyleft science art ]

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Brewster Kahle, founder of the Internet Archive, and the instigator of an open access effort to scan books, has a good op-ed in the Washington Post about the Google Books settlement (some links).

Brewster focuses on the monopolistic concerns about the proposed settlement. He concludes:

This settlement should not be approved. The promise of a rich and democratic digital future will be hindered by monopolies. Laws and the free market can support many innovative, open approaches to lending and selling books. We need to focus on legislation to address works that are caught in copyright limbo. And we need to stop monopolies from forming so that we can create vibrant publishing environments.

Personally, I do not want to see the deal approved unamended. There are some pretty clearly anti-competitive clauses that need to come out (the “most favored nation” one in particular). And the proposed Book Rights Registry has too much power, especially since its supervised by parties whose interests are not aligned first and foremost with the public’s interests (which are, I believe, to achieve the Constitutional desire “[t]o promote the progress of science and useful arts” and to achieve the Internet’s desire to provide maximal access to the works of culture).

(Here’s a much longer interview with Brewster).

[Tags: google google_books google_books_settlement copyright copyleft everything_is_miscellaneous libraries books ]

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David Bollier is giving a Berkman talk on governing the commons. David is the author of Viral Spiral: How the Commoners Built a Digital Republic of Their Own. His talk: “How shall we govern the commons?”

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.

His book looks at the arc of the development of open access and commonses. [What the heck is the plural of "commons"?] The commons is a new sector, and how we govern it is an urgent issue. Benkler, Zittrain, Lessig, and Bauers have addressed this, David says.

The commons is an ancient, new, and misunderstood paradigm, David says. It dates back to the medieval grazing of cattle. It’s a social system for managing shared resources. It was also a source of collective purposes, and custom and tradition. He recommends “The Magna Carta Manifesto” that looks at the struggle for the commons, with the Magna Carta being an armistice. The public domain was the closest we had to a commons until around 2000. The public domain was viewed by copyright traditionalists as a junkyward because the only people in it were things that had no commercial value. The first law review article on the commons didn’t occur until 1981. He cites Jack Valenti, a rich quote about a public domain work as “soiled and haggard, barren of its previous virtues.” Richard Stallman showed the efficacy and virtues of free software. He showed that incompatible code leads to a tower of Babel. The problem with Stallman’s Emacs Commune was that everything had to feed back to a central source (Stallman) and there was no governance. The General Public License gave legal protections to the Commons. Then the Net took off. We got new infrastructures for building commons, technologic, legal, and social.

Garrett Hardin who wrote about the “tragedy of the commons” later acknowledged that it didn’t apply to commons that have governance. The commons is generative (to use Jonathan Zittrain’s term). “The commons is a macro-economic and cultural force in its own right.” So, how shall we govern it? “This area is terribly under-theorized.” Elinor Ostrom set forth 8 design principles to allow a commons to be governed as a commons, e.g., clear boundaries, appropriateness to the local area, monitoring, transparency, graduated sanctions against free riders and vandals…

Ostrom once showed David a photo of a chair occupying a shoveled out space during a snow storm with a chair occupying it until the person who shoveled it comes back. Ostrom says that that’s a commons because, “It’s a shared understanding by the neighborhood about how to allocate a scarce resource.” David says a commons arises when a neighborhood decides to manage a resource in an equitable way. One thing this shows is a conflict between commons governance and government, since the mayor tried to ban this practice.

He says we need a new taxonomy of digital commons. How do you protect the integrity of the shared resource and the community itself. He points to some distinctions:

Open vs. Free raises questions of business appropriation vs. community control, digital sharecropping vs. commons governance, monetization or maintenance as an inalienable resource.

Individual choice vs. Community. Creative Commons may undermine commons building because it allows opt in or opt out. The GPL is a purer type of commons: There’s a binary choice: you’re in the commons or you’re not.

Building within the house of copyright or challenge property discourse? Niva Elkin-Koren, for example, thinks CC encourages self-interest and doesn’t build out a coherent commons vision. [Paraphrase of a paraphrase! Reader beware!] The Global South views CC as depending on Western law and as a type of derivative of private property. Fair Use activists, on the other hand, want us to grapple wit hte prevailing practices in copyright law.

Commons vs. Markets. Or at they friends? It depends. There’s a spectrum. Open platforms. Innocentive (drug queries where answerers get a bounty). Democratizing innovation, a la Eric Von Hippel. Magnatune (a “respectful interface between the commons and the market”) or the Grateful Dead allowing home-made recordings. Market-oriented non-profits.

The commons is, David says, a “new social metabolism for governance and law, with economic and cultural impact.”

Q: How about more examples? How about Huffington Post?
A: Open platform with some participation. But how about: WikiTravel is an interesting mix. DailyKos: A user-generated community of commentary. Internet Archive. Flickr. Jamendo library of CC music. Blip.tv.

Q: (doc searls) You offer an organic metaphor, whereas we think of the Commons as a space. Will it take?
A: Who knows. But it presents it as a relationship.
Doc: I wonder if there’s a relato-sphere that isn’t metabolic. A metabolism burns energy. It creates gas.
A: A legal system is a conversation about shared power [he quotes someone I missed, and I'm paraphrasing] Q: But metabolism also implies homeostasis. A: Its organic property is why commons sometimes outperform markets. Charlie Nesson: Don’t confuse law in principle (we all live under the law, a set of shared values) and as a social environment (a mediated discourse in which people are assisted in relating by its structure).

Q: What about the international aspect of commons.
A: Cf. “Global Legal Pluralism.” There’s a case to dealing with this locally rather than doing it top-down through nation states. There are certainly tensions as you expand this trans-nationally.

Q: (wendy seltzer) The question of governance is partially a horiztonal dividing of what’s been shared and a vertical set of relationships to maintain the platform. Does this get towards how we can push for open platforms on which we can build commons?
A: Lessig once said he saw the amassing of a constituency for a commons as an important political strategy for assuring an open Internet. The commons is a verb, a commoning.

Q: The vast majority of free software projects are very hierarchical. The freedoms it lists are individualistic. Our rules on collective governance are based on highly individualistic control. How do we move forward.
A: The preponderance of SourceForge communities are small. How do you scale up governance? It is a key issue and I don’t know the answer.
Charlie: David Hoffman writes about this. It’s about creating a border that keeps out the griefers. That’s essential.
A: They have to be organically grow…

Q: [ethan zuckerman] The old idea of the commons was that we were independent homesteaders who can make our own butter. But the openness of the code doesn’t help most people. And it gets worse. A lot of the interesting communities are on closed, commercial platforms. The attempts to have a constitutional moment on Facebook are pathetic. How can you bring your thinking about governance into commercial spaces? Can that be done?
A: That’s the right direction. We have to find respectful relationships among private businesses and commons. Maybe we need new revenue models.

Q: [darius] The tragedy of the commons has devastated my country, Poland. Not because there was no governance. The structures were didn’t align public interest and private incentives. Intellectuals assumed people would contribute for free. You haven’t mentioned motivations…
A: Self-interest is far broader than traditional economists have regarded it. We need to devise structures that can be hearty and sustainable that serve the public interest.

Q: To what degree is power concentrated in different commons? Usually a small group holds veto power. E.g., most open source projects have lead developers. To what degree do you need a de facto leader?
A: You need de facto structures. And you do sometimes get concentrated monopolies where forking isn’t really an option.
Ben: Some large open source projects are governed democratically. E.g., Debian.

Q: [me]
A: I think you have a fragmented view. Trying to amass a unitary view of the commons is doomed to failure beause all of them have rootedness in the local
<
me: Do we need a meta rule that says here's how we maximize local control of commons?
A: That’s the direction we need to go in. But that’s a political frontier we haven’t gotten to.

[wendy seltzer] Is there a natural limit to the size of commons?
A: Maybe, but there are all sorts of technological prostheses…
wendy: When you tie this to communities…
A: There may be a type of speciation.

Q: Something like BitTorrent — a true commons where people are sharing resources — suggests that there’s an outside of the fence direction…
A: Commons has some way of integrity of its asset.

Q: Commons can fail. What are the most common failure modes?
A: Not having adequate enforcement of boundaries, etc. Part of what’s so fascinating is watching commons proliferate, and dealing with the theory later.

Q: [charlie nesson] I think of the commons as everything you can reach for free. There are forces that want to capture the potential of the commons. What we’re looking for is the engine that makes the commons itself robust enough to resist that. I think of the law as the instrument of enclosure. The root to building that robustness is not litigation. We have to build up a force. The question comes down not to how we govern the commons, but how do given enterprises build self-sustaining business models on a gift economy?
A: Yes. We’re trying to build our space, our own republic.

[I missed a bunch. Sorry. Check the Berkman webcast site to find the webcast.] [Tags: commons creative_commons copyright copyleft everything_is_miscellaneous ]

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Harvard’s Office for Scholarly Communication has brought Kenneth Crews of Columbia Law School to talk about “Protecting Your Scholarship: Copyrights, Publication Agreements, and Open Access.”

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.

How do all the things mentioned in his subtitle fit together, he asks, assuring us that they do.

Our goals as academics, he says, are to: advance scholarship, promote access to pubs, preserve academic freedom, expand the class roomk support research worldwide, build the next generation of research, and reduce the costs and barriers. Does it shift costs or reduce them, he asks?

Peter Suber defines open access as online, free of charage, and free of most copyright and licensing restrictions. Is that the right definition, he asks. He says that as he’s traveled around the world, he’s seen access to the Internet is expanding rapidly. “People are connected.” It’s there as a potential and is in place in many places. But, in many of these places, there’s no cash to buy access to content. They can get to content if it’s made available on line. So, in addition to those other goals he’s listed, there’s altruism.

Why right now? The Harvard resolution (2008) requiring open access. The NIH public access policy (2008) puts works PubMedCentral. There are, of course, pitfalls: Misuse of work, etc. [missed some. sorry.]

There are challenges to these policies now. Congress has a bill to undo the NIH open access policy. There’s the DMCA’s anticircumvention provisions; the Copyright Office is holding hearings right now about exemptions to those processions. There’s the Google Books settlement that would provide tight controls to the accessibility and usability of that content. “Are we putting together a database of 20M volumes that is guaranteed to frustrate the heck out of the users?” There’s our distaste of other people making money with other people’s copyrights.

He gives a quick review of copyright: Just about everything is protected, if it’s “fixed in some tangible medium.” Copyright is as set of rights wrt reproduction, distribution, derivatives, performane and display, and DMCA rights. These rights can be unbundled and parceled out by the rights holder. Who owns the copyright isn’t very important. The real question is who has the particular rights within that bundle

Those rights are transferable. But they may be transfered or licensed, exclusive or not. In scholarly publishing, I might transfer rights to a publisher who then licenses back to me certain rights, such as the right to use it in further research, or to post portions on my Web site. Or, I might not transfer any rights, and instead license some rights to my publisher. Maybe I’ll license it to the publisher, stipulating that it be Creative Commons licensed. There are many, many possibilities. “So the process of engaging with a publisher is …. a process of negotiation.”

The context is changing. It’s becoming digital. Digital tech both can make scholarship more easily available, and it holds the potential for controlling access. Open access is key to the growth of scholarship. “The growth of scholarship comes from access to existing works,” as does its impact.

So, being a good steward of copyright requires understanding our interests, those of our institution, the revenue possibilities, and the interests of people I do not know and who may not be in my field. We should worry about maintaining the integrity of our work. Money matters. We need to worry about the business models.

“Not all copyrights are created equal…Not all works need to be treated in the same way.”

Who gets to decide all this: The author.

“Managing this work in a way that moves us toward open access publishing … is a good thing.” How to do that: Self publish. Use OA publishers (e.g., www.doaj.org). Put it in an institutional repository. And negotiate. “The happier the agreement, the longer the agreement.” “We have to look for language that does happy things for us.” He shows an example of happy language that gives the author right to post an article for free. Another: Language that lets the author use the article for her own work. A license leaves the unstated rights with the author. He notes that the law’s default does not require the publisher to include the author’s name and affiliation.

Tough questions about open access: Will colleagues respect publications in OA journals? (More so every day, he says.) OA compatible with peer review? (Yes, Kenneth says.) How do I manage my copyrights? How do I negotiate agreements? Who pays the pub costs. What about the economic surival of journals? (I don’t know the answers, he says, but the problem is more real than we often like to acknowledge.)

Key points of the talk, he says: . You have choices. Be a good steward. Negotiate…and keep a copy of the agreement. In fact, keep the agreement for the entire term of the copyright, i.e., 70 years after you’re dead.

Q: Google Books settlement?
A: Read the agreement. “It will really wow you.” The key point: It permits Google to continue scanning, and to create this “fantastically large, very useful archive of materials.” But access to it will be restricted. If a book’s in copyright, you can only get bibliographic info. If you want more, you sign up for a subscription. Tightly controlled, limited access. “And it’s a book selling situation.” Google and the association become major booksellers. You buy access, not copies. “The challenge for all of us is there is no question, this proposal should it become the legal standard, is the biggest, most important step toward digital access of materials not previous available.” We need to decide if we want to move into the future on these terms. “I only give this agreement several years before it falls apart” and they’re back in court looking for new terms.

Q: Robert Darnton: What kind of legislation should we have for orphan works [= works under copyright whose license holders cannot be found]
A: The Copyright Office’s legislative proposal from a few years ago was actually pretty good. But as it went through the process, “every change was a step backward.” “I thought it was a good thing the legislation died last year.” We’re in pretty good shape now with the Fair Use laws. The Google settlement allows the Registry to collect revenues from the use of works and distribute money out to the rights holders. But with an orphaned works, who gets it? The basic idea is that that money is used to pay organizational overhead. If there’s leftover money, 70% gets distributed to the class of known copyright holders. The other 30% goes into a pool for non-profits. “The serious problem is that it gives Google a monumental head start over anyone else in working with orphan works.” Competitors don’t have a court settlement that protects them from law suits over rights abuses. “This is a formidable problem with the agreement.”

Q: I edit an undergraduate Harvard journal. Authors sign over all rights to the journal. I worry about students being chagrined by their very first publication. Can an author ever get them back under wraps?
A: If I make something open access, can I reel it in if I change my mind? Legally, yes. Realistically, no. It’s probably been downloaded, mirrored, put into the Internet Archive.

Q: What about students’ lecture notes, etc.?
A: If everything created in a fixed medium is copyrighted, we have a responsibility to manage it. If you’re a student who created notes or papers, they’re yours. But, when it comes to wikis, etc., the copyright situation is nightmarish. It’s jointly copyrighted and owned. Any one student can exert rights.

Q: Every change in the copyright law has gotten awa from the original intent, which was to preserve creativity. The change to make everything copyrighted is nightmarish. Why not have a registry of copyright and require some action on the part of creators to get and renew a copyright?
A: So many ways I could respond! The US Constitution lists powers the Congress has. Most of those statements are very clear and simple. Then comes copyright: To promote progress in the sciences and useful arts, Congress has the power to granted limited-time rights to publish. It’s clear this has a purpose, a goal. There are many reasons we’ve gotten away from this. In addition to everthing else, the Berne Convention, which we joined in 1989, sets basic rules, including broad copyright with no formalities to get one. We couldn’t require registration to get a copyright without dropping out of Berne, but we’re locked into international provisions in multiple other agreements. You want change, go to Berne. [Tags: copyright copyleft google_books ]

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Economist.com is featuring a debate on whether current copyright laws do more harm than good. The “Yes, they do” side is represented by Terry Fisher, a faculty director of the Berkman Center. The “No, they don’t” position is argued by Justin Hughes. Excellent discussion.

[Tags: copyright copyleft creative_commons ]

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New Zealand has decided that trying to amend copyright for the digital age is like trying to adjust a horse’s carburetor. So, it’s going to start all over again.

That’s what we ought to do. Fresh piece of paper, a very big table, and an open bar. I don’t see any other way forward, really.

[Tags: copyleft copyright new_zealand ]

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Afroditi Theodoridou at IP Osgoode does an excellent job explaining the application of Fair Use in the Turnitin Plagiarism Detection Service suit. This post not only makes the decision clearer, it also lays out the legal nature of Fair Use.

TurnItIn lets a teacher submit a paper to see if it’s original or plagiarized. The service keeps a database of the papers submitted for checking. Some students sued, claiming that was an infringement of their copyright. The court decided that TurnItIn was covered by Fair Use. Afroditi concludes with the interesting claim that fighting plagiarism advances the Framers’ original motivation for creating copyright.

[Tags: copyright copyleft fair_use plagiarism ]

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ThePirateBay has links to content hosted elsewhere that’s available for download using the BitTorrent protocol. The site also provides a search engine for finding that content, and a page for each torrent with information about the content. It doesn’t distinguish between content that’s protected by copyright and content that isn’t. The four founders of ThePirateBay were convicted by a Swedish court last week. They were fined a middling amount, and were sentenced to a year in jail. (“What’re you in for?” “Improper use of metadata.”)

Now there is ThePirateGoogle, created by someone to make a point. There you can use the Google search engine to search for content hosted elsewhere, available for download using the BitTorrent protocol. It doesn’t distinguish between content that’s protected by copyright and content that isn’t.

Here’s the text from ThePirateGoogle site:

Bit Torrent Search

Please Note: This site is not affiliated with Google, it simply makes use of Google Custom Search to restrict your searches to Torrent files. You can do this with any regular Google search by appending your query with filetype:torrent. This technique can be used for any type of file supported by Google.

The intention of this site is to demonstrate the double standard that was exemplified in the recent Pirate Bay Trial. Sites such as Google offer much the same functionality as The Pirate Bay and other Bit Torrent sites but are not targeted by media conglomerates such as the IFPI as they have the political and legal clout to defend themselves unlike these small independent sites.

This site is created in support of an open, neutral internet accessible and equitable to all regardless of political or financial standing.

Cheers!

Yes, you can do with Google what you do with ThePirateBay. For example, do the following search at Google:

filetype:torrent “the dark knight”

There’s obviously a difference in intent between ThePirateBay and Google. But there is precious little relevant difference in the service. So, why jail the founders of ThePirateBay but not the founders of Google since either can be used to find copyright-protected torrents? Having the wrong mental attitude? (“What are you in for?” “Intent to improperly use metadata.”)

What to make of this? I find myself in a jumble:

1. I don’t think it’s a double standard. Intent counts. The difference between the Heimlich maneuver and assault is intent, and that’s as it should be. ThePirateBay is intended to enable the sharing of copyrighted works: TPB has facilities designed to help you locate, evaluate, and share files, including a page for each torrent with comments, ratings, descriptions, and the number of seeders and leechers (to see how alive the torrent is). And it’s named The freaking Pirate Bay. There may or may not be a law in Sweden against what TPB does, but it’s disingenuous to say that the site is ethically the same as Google.

3. ThePirateGoogle shows that shutting down ThePirateBay is not going to stop the use of BitTorrent to share copyrighted files. But jailing TPB’s founders may slow sharing down. Torrent site after torrent site has been shut down over the past few years, making it harder to find and download files now. The verdict in TPB case, especially with its jail sentence, will slow down the torrent of torrents, although perhaps not by much.

4. Just in case someone tells you otherwise: The BitTorrent protocol is not the issue here. It’s a brilliant way of sharing large files, and it’s used all over the place for perfectly legal file-sharing.

5. I don’t know what to do about copyright. It’s obviously spun out of control and needs to be pulled back in — lasting 70 years after the death of the creator is absurd — but we need to do far more than just shorten its term. Compensating creators for every use of their works obviously contradicts the maximal open sharing and reuse of works that drives culture forward. Creating a legal and economic environment with incentives for creators does not contradict the open sharing and reuse of works. The question is: Which legal/economic environment would work best? I don’t know — I wish I did — but I suspect it’s one in which copyrighting a work takes a little bit of effort, not all categories of work have the same copyright protections, the terms are way way way shorter than they are now, fair use is greatly extended, infringement only counts if it actually hurts sales (in the way that most mashups do not), compensation does not come from accounting for each and every use of a work, and we start rewarding those who release their works into the public domain by showering them with affection, cultural uptake, and some money.

That’s about seven steps short of an actual copyright reform program. But I find the whole topic headache-making and, frankly, depressing. [Tags: thepiratebay google copyright copyleft ]

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1. ThePirateBay posts all the legal letters it gets, plus its replies. Feisty doesn’t begin to describe the replies.

2. The judge in the case seems to have ties to the copyright industry. The lawyer for one of the defendants is calling for a new trial.

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After giving a talk to folks from the National Archives, they gave me a book — Your Land, Our Land, edited by Monroe Dodd and Brian Burnes, on the staff of the National Archives — of photos from the regional archives. Beautiful stuff in it. Here are some samples. (I photographed them since the book doesn’t fit into my scanner very well.) Click on the samples to download large versions:

From the Watertown arsenal (Boston), WWI artillery shells

Woody Guthrie’s signed loyalty oath

vMinerva Markowitz working an engraving machine: Brooklyn Navy Yard, WWII

This book, published by Kansas City Star Books and the Foundation for the National Archives comes with the usual stern copyright warning:

“All rights reserved. No part of this book may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without the prior consent of the publisher.”

But I checked with counsel: The copyright only extends to the selection and arrangement of the photos, plus any text they added. The photos themselves are public domain (I presume), and “in the US (unlike Europe), there is no copyright protection for the digitization or accurate reproduction of public domain works.”

[Tags: national_archives photos woody_guthrie artillery munitions rosie_the_riveter copyright ]

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Pam Samuelson has written a brilliant piece about the Google Book settlement. It goes in the must-read (and highly readable) pile along with Robert Darnton’s eloquent NY Review of Books piece and James Grimmelmann’s more wonky explanation.

[Tags: google google_books publishing copyright copyleft everything_is_miscellaneous ]

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I went first. I talked about exceptionalism, responding to Eli Noam’s challenge at the beginning of the conference that if we’re going to think the Net is going to bring about substantial changes, we have to be able to point to characteristics of it that are different from other technologies that also looked revolutionary but that turned out to be rather prosaic.

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.

Len Downie was executive editor of Washington Post. He’s not going to propose any new form of delivery of the news. He’s not sure the old will die out completely. WaPo is reorganizing itself as a news operation and as a company. They have Facebook and iPhone apps, etc. When it comes to UGC, “this is not a zero sum game.” On WashingtonPost.com you find lots of user comments, participation in blogs, user photos and videos, crowd-sourcing. E.g., Amanda Michel’s “Off the Bus” crowd sourcing, which went through professional editors. (Amanda is now at ProPublica.) They hope the Net will help end the traditional alienation from their readers. And the Net has made their audience bigger than ever before.

The big problem is the loss of classified advertising. Hundreds of millions of dollars lost, hitting local newspapers especially hard. Also, display ads have been driven down. Local news stations are covering fewer stories. There’s less reporting. That’s the problem Len is going to examine in his new academic role at Arizon State.

There are some things the government could do, but not a “bail out,” Len says. Maybe newspapers will become 501C3’s. Maybe they’ll become LC3’s, so they could still be profitable and yet receive tax-exempt contributions. Maybe convert them into endowments, although Len says there isn’t enough money for that: You’d need a ginormous endowment to generate the requisite funds. There are more and more non-profit investigative reporting organizations. There’s a lot going on. It’s impossible to tell what’s going to happen.

Q: How much does investigative reporting cost?
A: At ProPublica, they do it in the best way, and it’s tens of thousands of dollars, mainly for the reporter’s time.

Q: In Germany they’re aggregating news and selling access [I got this wrong] …
A: I’d have to look at it.
Q: Isn’t that what AP does?
A: Don’t get me started. AP is supposed to be a collaborative. If we don’t all charge at the same time, we won’t be able to raise enough money. Alan Mutters [sp] suggests that we all decide on July 4 to start charging. The Obama admin is concerned about the future of news. They’re going to look at loosening anti-trust regs so newspapers can band together, but you don’t want to create another cartel like AP.

Q: If the NYT shut down its presses and went totally online, how would that affect their costs and prices?
A: The Times might save 40-50% of their costs, but it would take away 90% of their revenue. Kindle is great for books but not very good for newspapers. Looking forward to the big multimedia tablets.

Q: The NYT is doing well on the Web. But last year their Web revenue increased just 1%. What’s the future business model?
A: That’s what I’m trying to figure out.

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Greg Lastowka (law prof, Rutgers) is going to talk about legal aspects of UGC. First question: What is UGC? It’s a fuzzy concept. “User” is an important term because of copyright. Copyright is not about monetizing the works of authors. Copyright is there to promote the progress of science and the useful arts. Our Constitutional mention is based on the earlier British Statute of Ann that took control away from publishers and gave it to authors, in order to promote education.

Greg predicts that copyright won’t change very much in the next ten years. Copyright law will probably ignore UGC and be large unaffected by it. UGC will be treated as a problem, it will change the rules somewhat (through litigation), but the fundamental shape of copyright law won’t change in response to UGC (says Greg). Ten years ago, he was more optimistic about it. He thought UGC was a huge social boon that was a very bad fit for copyright law, so copyright law would change to reflect that value. The Web was meeting the goals copyright law was established to meet.

Four changes to get copyright law to fit the Web: 1. Simplify the law. 2. People want credit for their work even when they’re happy to have it spread. People get copyright law mixed up with plagiarism. We should work the attribution right into it. 3. Reform terms of service and their enforcement. 4. Subsidize free access content. Copyright is a subsidy for authors.

Greg was arguing this ten years ago. Not much has changed, although there’s progress in open access to academic work. Why haven’t there been more changes? Maybe because our legislators don’t understand what’s happening. The better, sadder, answer is that Greg’s politics were naive. Copyright law today is realistically about protecting big money incumbents. Dan likes copyright and blockbuster movies, but thinks there should be an ecology that enables them and UGC. We’re unlikely to strike a new social contract that reflects the rights of amateur creators.

Q: To what extent is international trade motivating maintaining strict copyright?
A: Legislators certainly care about it.

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Stefaan Verhuist (Markle Foundation) presents his model of UGC: Mediation 3.0. It has three new mediating functions that converge to create a new type of mediation. Those functions can be accelerated and made more valuable by making sure they are cheap, deep, and speed. The success depends on four challenges: the 4 Ps.

Setfaan draws a triangle: 1. Establish relations. 2. Provide a new kind of resource that has value for users and that may be created by the users. 3. Remix. Ensure a relation that creates a resource that may be remixed. Their convergence creates UGC. If you can provide resources that are cheap, deep (the value for its users, related perhaps to a geographical location), and speediness. But it can be hard to be cheap, deep and speedy; that’s the challenge.

The 4 Ps: Privacy (relationship), Property (remix), Public sphere obligations and responsibilities (resource), Push and pull (in the center of the triangle) of information. The push-pull presents the policy challenges.

[Posted without re-reading. Gotta run.]

[Tags: journalism media newspapers copyright copyleft creative_commons marketing ]

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The appellate court has decided, on narrow grounds, that the judge in the Tennenbaum RIAA case was wrong to allow an upcoming hearing to be webast. ZDNet has a helpful article.

[Tags: riaa tennenbaum charles_nesson copyright copyleft ]

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