When Doc Searls and I published our New Clues, we put it into the public domain. Even two months later, it feels good. In fact, seeing it reprinted in its entirety on someone else’s site fills me with an irrational exuberance.

Normally we would have put it under a Creative Commons BY license that entitles anyone to reuse it in whole or in part so long as they attribute it to us. CC BY is great. It takes the “#1. Ask permission” step out of the process by which what you write can be absorbed by your culture. Or anyone’s culture.

The public domain is different. A CC-BY license keeps a work copyrighted, but permits use without first asking permission. Works in the public domain are not copyrighted. Ok, so it’s more complex than that, but that’s basically it. A work in the public domain is like a folk song: you can sing it, you can change the words, you can record it and charge for the recording, you can print the lyrics on the front of your ice cream containers. You can even claim that you wrote it, although that would be wrong of you.

In practical terms, putting New Clues into the public domain [here’s how] really doesn’t do much that CC BY doesn’t do. Yes, someone could reprint our public domain document without crediting Doc and me, but they could do that with CC BY also — we’d have the right to insist that they provide attribution, but Doc and I are likely to use moral suasion in either case, by which I mean that we’d write a polite email to the evil doer. So, pragmatically, there isn’t much difference.

So why does putting it into the public domain make me happier? I get as close to smiling as my stony visage permits when I see a site that’s copied and pasted the whole thing. It makes it feel that what Doc and I wrote was really about what it says and less about what the writing says about Doc and me. The focus is where it should be.

And it feels deeply good to know that we have created something that can spread as far and deeply into the culture — and thus into people’s lives — as our culture wants. The only barriers are those of interest. And we’re not going to try to tease you with a snippet, with a taste. Not interested? Fine. It’s still there for anyone who is.

I expressed this to Peter Suber, who is dedicated full time to expanding the sphere and influence of Open Access works. Peter pointed out that my reaction rests in part on the privileged position I occupy: I can do some writing for free, and because Doc and I are known a bit within the domain of people who blab about the Internet, there’s a disincentive for people who might want to pass off our words as our own. If we were, say, unknown high school students it’d be easier for someone to get away with crudely plagiarizing our work. True enough.

Even so, putting work into the public domain feels good. I recommend you try it.

Peter Hirtle points out that Creative Commons 0 isn’t exactly the same as public domain, although functionally it’s identical. The whole question of trying to eliminate all copyright interests in a work is vexed. Peter points here for details and evidence of the complexity of the issue. Thanks, Peter!

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The project with Doc that I mentioned is a new set of clues, following on The Cluetrain Manifesto from 16 years ago.

The clues are designed as an open source publishing project: The text is in the public domain, and we’re making the clues available at Github in various computer-friendly formats, including JSON, OPML and XML.

We launched this morning and a happy hell has broken loose. So I’m just going to posts some links for now. In fact, I’m copying and pasting from an email by Doc:

• @DaveWiner’s listicle version of New Clues (at listicle.io, one of his many creations).
• Dave’s blog post on New Clues, and working with Doc and me.
• New Clues on Medium’s Backchannel (courtesy of @StevenLevy).
• @Cluetrain on Twitter. Also @dweinberger and @dsearls
• The New Clues group page on Facebook
• Halley Suitt’s interview with Doc and me at the Globe’s BetaBoston
• Doc’s blog.

Gotta run…

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I went to see To Be Takei last night, and George himself was there for an interview afterwards. It occurred to me that I’d like him to autograph his book Oh Myyy, but I only have a copy on my Kindle.

So, here’s a proposal for the Kindle, the Nook, and for any other DRM-ed ebook reader: Allow us to embed one and only one photo into our copy of an ebook. That photo can never be replaced. It can be deleted, but then the slot is gone forever. This could be implemented as a special one-time-only annotation, and it would be managed by your fearsome machinery of control.

That way, I could take a selfie with George, post it into my Kindle copy of his book, and have the digital equivalent of an autographed copy.

I don’t see a way of doing this for open access e-books. Stupid open access e-books what with their “Oooh look everyone can read me!” smirks and their “Now everyone can learn and participate in culture” attitudes.

PS: To Be Takei was really enjoyable. Totally worth seeing, especially with an appreciative crowd.

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A year ago, Harold Feld posted one of the most powerful ways of framing our excessive zeal for copyright that I have ever read. I was welling up even before he brought Aaron Swartz into the context.

Harold’s post is within a standard Jewish genre: the d’var Torah, an explanation of a point in the portion of the Torah being read that week. As is expected of the genre, he draws upon a long, self-reflective history of interpretation. I urge you to read it because of the light it sheds on our culture of copyright, but it’s also worth noticing the form of the discussion.

The content: In the Jewish tradition, Sodom’s sin wasn’t sexual but rather an excessive possessiveness leading to a fanatical unwillingness to share. Harold cites from a collection of traditional commentary, The Ethics of Our Fathers:

“There are four types of moral character. One who says: ‘what is mine is mine and what is yours is yours.’ This is an average person. Some say it is the Way of Sodom. The one who says: ‘what is mine is yours and what is yours is mine,’ is ignorant of the world. ‘What is mine is yours and what is yours is yours’ is the righteous. ‘What is mine is mine and what is yours is mine’ is the wicked.”

In a PowerPoint, it’d be a 2×2 chart. Harold’s point will be that the ‘what is mine is mine and what is yours is yours.’ of the average person becomes wicked when enforced without compassion or flexibility. Harold evokes the traditional Jewish examples of Sodom’s wickedness and compares them to what’s become our dominant “average” assumptions about how copyright ought to work.

I am purposefully not explaining any further. Read Harold’s piece.

The form: I find the space of explanation within which this d’var Torah — and most others that I’ve heard — operates to be fascinating. At the heart of Harold’s essay is a text accepted by believers as having been given by God, yet the explanation is accomplished by reference to a history of human interpretations that disagree with one another, with guidance by a set of values (e.g., sharing is good) that persevere in a community thanks to that community’s insistent adherence to its tradition. The result is that an agnostic atheist like me (I’m only pretty sure there is no God) can find truth and wisdom in the interpretation of a text I take as being ungrounded in a divine act.

But forget all that. Read Harold’s post, bubbelah.

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The Register just posted one of the most ridiculous pieces of clickbait trolling I’ve ever seen. They’re claiming that by posting the parody video below, the UK’s Open Rights Group is comparing people who defend their copyright to Hitler:

It helps to know a few things:

First, the movie the clip, taken from Downfall, has been used for this sort of re-titling parody well over a hundred times, with Hitler fulminating over everything from Miley Cyrus twerking to spam. (Here are seven recent parodies, and 25 from an article in 2009.) Note that the video above was created and posted by Brad Templeton in 2009.

Second, a few years ago, the producers of Downfall apparently got fed up with their movie becoming so well known and started issuing DMCA takedown notices for the parodies.

Third, two days ago the House of Lords protected parodies against copyright infringement suits — covered in the US by our policy of Fair Use. ORG linked to the Downfall parody to celebrate this victory for free speech.

So, it hurts my head how many ways The Register’s trolling gets things wrong. It’s as if someone were accused of violating Godwin’s Law because she invoked Godwin’s Law. [I am taking Godwin’s Law as normative. Sue me.]

Here is the link to The Register article but I encourage you not to go there, just so they won’t feel that this sort of ridiculous trolling is profitable. Instead, we could perhaps invoke a version of the Streisand Effect by posting the video widely.

[A few hours later:] The Register just appended the following to their post:

Since the publication of this story, the ORG has contacted The
Register with this comment: “Earlier this week, the Open Rights
Group tweeted a Downfall parody about copyright on the day that
parody exceptions for copyright were approved by the House of
Lords. Downfall parodies are widely recognised and have been used
to great satirical effect about a wide range of subjects. It is
wilful ignorance to portray a Downfall parody as a direct
comparison with Hitler and Nazism.”

Yup.

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The American Academy of Arts and Sciences is today taking in 198 new members, including Bruce Springsteen, Pete Seeger, Sen. John Glenn, Robert De Niro … and Pam Samuelson. Founded in 1780, the Academy’s current roster includes 250 Nobelists and 60 Pulitzerists. It’s therefore especially exciting that the Academy is including someone best known for her work as a copyright reformer.

Pam is the Director of the Berkeley Center for Law & Technology and is on the board of the EFF, among many other positions and honors. She has a clear eye on the Net’s potential for transforming culture, and has been working for many years on reforming copyright so that it makes sense in this new environment. Among many other projects, she’s suggested a sensible framework for copyright in the digital age [pdf]. But just google her + copyright to get a sense of why Pam so richly deserves this honor, and why it’s impressive that the AAAS has chosen to bring her into its ranks.

Congratulations, Pam!!

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We just came from a fantastic production of Love’s Labor’s Lost by Shakespeare & Co. in Lenox, Mass. I’ve lauded this company before (often), but this afternoon’s show was among the very best we’ve seen. The second half especially was both hilarious and very touching. At least the way they played it this time — we saw it here years ago — the ending was a criticism of the play’s own wit as a way to dodge true knowledge. That Shakespeare guy really could write!

I’d recommend you see it, but this was the last performance. Which makes me wonder (once again) why a company like this doesn’t video one of the performances and put it up on the Web for free. Why the heck not? It would only encourage attendance, and would raise the company’s prominence.

And Shakespeare & Co. also holds informal talks about their performances. Why not video them and put them up on the Web for people who are about to see any company’s performance of the play?

There may be a simple answer to this. For example, as my nephew pointed out, some of the performers are in Actors Equity and there may be rules against posting performances for free. If so, what a waste and disservice to their members! For example, it would only help Josh Aaron McCabe‘s career for people to see his performance as Berowne this afternoon.

Or it may be simply that the default at Shakespeare & Co. hasn’t switched to open-when-done. But that only requires the Will. I just hate to see this love’s labor lost.

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Not since the NFL sent a takedown notification to Wendy Seltzer because she posted the NFL’s copyright notice has a takedown notice been so unknowing. Wendy is a law professor and the head of the Chilling Effects archive of takedown notifications. The new Notification of Unknowingness went to Lawrence Lessig for using a short clip to make a point in a video of a talk about the overreach of copyright:

A co-founder of the nonprofit Creative Commons and author of numerous books on law and technology, Lessig has played a pivotal role in shaping the debate about copyright in the digital age. In June 2010, Lessig delivered a lecture titled “Open” at a Creative Commons conference in South Korea that included several short clips of amateur dance videos set to the song “Lisztomania” by the French band Phoenix. The lecture, which was later uploaded to YouTube, used the clips to highlight emerging styles of cultural communication on the Internet. [source: eff]

When YouTube forwarded the DMCA takedown notice to him, Lessig did what so few people do: he counter-notified that his use of the clip was an instance of Fair Use. [More details here.] Fair Use is an exemption to copyright that lets reasonable extracts be used in cases just like Larry’s video. [Better explanation here.] The copyright holder then said they were going to sue Lessig for infringement. Lessig took down the clip and is now taking the issue to court with the help of the Electronic Frontier Foundation. (Did you remember to donate to the EFF?) Their aim is to get the judge to issue a declarative judgment that the the clip is covered by Fair Use, and to get damages as specified in DMCA clause 512f:

(f) Misrepresentations. Any person who knowingly materially misrepresents under this section
(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,

shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

Since what exactly constitutes Fair Use is determined by courts, a declarative judgment would help clarify that uses like Larry’s are definitely ok, and the awarding of damages would help discourage organizations from issuing automated takedowns that give no heed to the circumstances in which the content is being used. (But I am not a lawyer, so do not believe me.)

The final irony: The name of the copyright holder is Liberation Music.

Go, Larry! Go EFF! And thank you!

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I liked the Mendeley guys. Their product is terrific — read your scientific articles, annotate them, be guided by the reading behaviors of millions of other people. I’d met with them several times over the years about whether our LibraryCloud project (still very active but undergoing revisions) could get access to the incredibly rich metadata Mendeley gathers. I also appreciated Mendeley’s internal conflict about the urge to openness and the need to run a business. They were making reasonable decisions, I thought. At they very least they felt bad about the tension :)

Thus I was deeply disappointed by their acquisition by Elsevier. We could have a fun contest to come up with the company we would least trust with detailed data about what we’re reading and what we’re attending to in what we’re reading, and maybe Elsevier wouldn’t win. But Elsevier would be up there. The idea of my reading behaviors adding economic value to a company making huge profits by locking scholarship behind increasingly expensive paywalls is, in a word, repugnant.

In tweets back and forth with Mendeley’s William Gunn [twitter: mrgunn], he assures us that Mendeley won’t become “evil” so long as he is there. I do not doubt Bill’s intentions. But there is no more perilous position than standing between Elsevier and profits.

I seriously have no interest in judging the Mendeley folks. I still like them, and who am I to judge? If someone offered me $45M (the minimum estimate that I’ve seen) for a company I built from nothing, and especially if the acquiring company assured me that it would preserve the values of that company, I might well take the money. My judgment is actually on myself. My faith in the ability of well-intentioned private companies to withstand the brute force of money has been shaken. After all this time, I was foolish to have believed otherwise.

MrGunn tweets: “We don’t expect you to be joyous, just to give us a chance to show you what we can do.” Fair enough. I would be thrilled to be wrong. Unfortunately, the real question is not what Mendeley will do, but what Elsevier will do. And in that I have much less faith.

I’ve been getting the Twitter handles of Mendeley and Elsevier wrong. Ack. The right ones: @Mendeley_com and @ElsevierScience. Sorry!

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CNN asked me to write 600-800 words about Aaron Swartz. I demurred at first, suggested some other people who knew Aaron better — I met Aaron when he was young, stayed in touch, had the occasional meal with him, admired him and loved him more than he knew — and agreed when CNN came back to me.

I have trepidation about what I wrote, which CNN has now posted. I don’t like the implication that we can sum up any life so glibly. But I also wanted to do a little to nudge attention from Aaron solely as a champion of open information. I also decided not to assess the blame that is so well deserved, because that’s well discussed already.

A handful of better sources and expressions:

• Anything Larry Lessig has written or said, including this.

• Cory Doctorow’s immediate post, breaking the news and our hearts

• Matthew Stoller’s important and deeply-felt reminder of Aaron’s political breadth and depth

• Quinn Norton’s vivid remembrance of Aaron’s happiness and more

• Dave Winer’s astute pointing to curiosity as a defining motive for Aaron

• danah boyd’s hhonest expression of loss, and her fear that Aaron will be taken merely as an example

• The unbearably honest statement from his parents and soulmate

There’s so much more, because no life can be told.

Here is Aaron in his own words, in a presentation at the Freedom to Connect conference last May.

And here is Larry Lessig on Democracy Now:

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