If you want to maintain your “moral right” to what you’ve written, then don’t publish it.
If you publish it, you are making it public. Thank you for doing so.
You will make money from it for some fixed period — a period designed to provide you (but not necessarily Stephen King) with sufficient incentive to continue to create and publish works, but a short enough period that creative works can be assimilated by the culture.
Why put limits on the author’s exclusive right to publish? To keep culture lively. Which is the same as keeping that culture alive.
Cultural assimilation requires the freedom to talk about your work, to reuse it, misuse it, abuse it, to get it terribly wrong, to make it our own as individuals, to make it ours as a culture.
Imagine a Renaissance in which “moral rights” were enforced. Can’t.
Moral rights kill culture.
(Note that this applies to works that are published as copies. Please don’t take a hammer to any irreplaceable statues. Thanks.)
Joseph Fagan, an author, writer, TV Show host, and the Official Historian of West Orange Township, has given me permission to post his recounting of the legal waters surrounding the first filming of a boxing match. It’s a fascinating early example of finding analogies in order to figure out how to apply old laws to new technology — and also of how the technological limitations of a medium can affect content.
First filmed boxing match tested the legal waters in WO [West Orange, NJ]
By Joseph Fagan
On June 14, 1894, one hundred and twenty four years ago today, a boxing match was first captured on film. The event took place at Edison’s Black Maria studio giving the world’s first movie studio in West Orange the distinction of being the first place for a filmed boxing match in history. It was a staged six round fight between two lightweight boxers Michael Leonard and Jack Cushing. The filming of this fight at the Black Maria may have violated prize fighting laws but “the technology seemed to surpass the law in a way no one could have predicted”the technology seemed to surpass the law in a way no one could have predicted.
Although boxing was still illegal in New Jersey in 1894 the sport was growing in popularity. The New Jersey penal code had been amended in 1835 to specifically outlaw prize fighting. The art of pugilism as it was also known was banned in the United States at the time. It was illegal to organize, participate, or attend a boxing match. But the law was somewhat unclear on the legality of photographing a boxing match. By the time Edison’s moving picture technology had emerged the law had not yet adopted any provisions for the filming of a boxing match.
An assumption was made that since it was legal to look at a still photograph of a boxing match by extension it therefore was then legal to look at a motion picture of a boxing match as well. The New Jersey legislature could not have anticipated prize fighting films in 1835 when photography techniques were still in its infancy and mostly all experimental.
By the late 1880s the concept of moving images as entertainment was not a new one and not uniquely that of Edison. In 1893 he built the world’s first motion picture studio in West Orange known as the Black Maria. The films produced at this studio were not film as we know it today but short films made specifically for use in Edison’s invention the kinetoscope. This emerging technology not only commercialized moving pictures but also made history as it tested the known boundaries of New Jersey law regarding prize fighting.
The first kinetoscope parlor opened in New York City on April 14, 1894 in a converted shoe store. This date marks the birth of commercial film exhibition in the United States. Customers could view the films in a kinetoscope which sat on the floor and was combination peep show slot machine. Kinetoscope parlors soon increased in popularity and opened around the country. Production of a constant flow of new film subjects was needed at the West Orange studio to keep the new invention popular. Many vaudeville performers, dancers, and magicians became the first forms of entertainment to be filmed at the Black Maria studio.
The filming of the Leonard Cushing Fight demonstrated the potential illegality of the events at the Black Maria but there is no record of a grand jury investigation of the fight. The ring was specially designed to fit in the Black Maria and was only 12 feet square. The fight consisted of six one minute rounds between Leonard and Cushing. One minute was the longest the film in the camera would last so“ the kinetoscope itself was the time keeper” the kinetoscope itself was the time keeper. In between rounds the camera had to be reloaded which took seven minutes. The fight was essentially six separate bouts each titled by round number. In the background five fans can be seen looking into the ring. The referee hardly moves as the two fighters swing roundhouse blows at each other. Michael Leonard wore white trunks and Jack Cushing wore black trunks. Although a couple of punches seem to land both fighters maintained upright stances during the fight. Customers in kinetoscope parlors who watched the final round saw Leonard score a knockdown and was therefore considered the winner.
The first boxing match was filmed and produced by William Kennedy Dickson working for Edison. It remains unclear if Edison was actually at the fight and is reported to have been 40 miles away in Ogdensburg, NJ overlooking his mining operations. In my opinion I doubt very little happened at his West Orange complex without his knowledge or approval. Edison’s confidence is perhaps best understood in a 1903 quote. M. A. Rosanoff joined Edison’s staff and asked what rules he needed to observe. Edison replied, “” There are no rules here… we are trying to accomplish something.””” There are no rules here… we are trying to accomplish something.”
In the face of legal uncertainties regarding New Jersey law in 1894 plausible deniability may have helped Edison as he drifted into uncharted legal waters. No one was ever charged with a crime for filming the first prize fight in history at the Black Maria in West Orange. It simply set the course for future changes until the prohibition against prize fighting in New Jersey was eventually abolished in 1924.
Peter Brantley [@naypinya] has posted an important and succinct warning about the effect blockchain technology may have on culture: by making the mechanism of trust cheap, transparent, and more reliable, blockchain could destroy the ambiguity that culture needs in order to thrive. Peter’s post is clearly thought and powerfully put.
Pardon me while I agree with him, including about blockchain’s positive promise.
Culture is the ultimate analog phenomenon, even when it’s communicated digitally, for it is only culture to the extent to which people—we—make it our own. We understand our lives and our world through culture. If we can’t appropriate it, re-express it, and re-use it, culture simply dies.
As Peter says, blockchain could perfect the system of tracking and control, leading us further into the tragic error of thinking that ideas and culture are property. Property has boundaries and borders that can be precisely demarcated and can be defended. Culture by definition does not. Blockchain technology can further the illusion that culture is property.
While blockchain will have a positive, transformative effect on systems where trust is valuable and expensive, it almost inevitably will also be used to impose restrictions on the appropriation of culture that lets culture thrive. If so, I expect we’ll see the same sort of response that we’ve already seen to the Internet’s inherent transparency—the transparency that has simultaneously made it the liberator of culture and the surveillor’s wet dream: We will route around it with some degree of success. And we will—I hope— continue to encourage an ethos of sharing in which creators explicitly exempt their works from the system of copyright totalitarianism.
The license you adopt will be your uniform in the coming culture wars. It already is.
The public can view them, copy them, and reuse them freely in every regard. An article in Quartz by Anne Quito reports:
So far, these images, which range from Restoration-era cartoons to colonial explorers’ early photographs, have been used on rugs, album covers, gift tags, a mapping project, and an art installation at the Burning Man festival in Nevada, among other things.
The Library posted them not only so they could be enjoyed and reused, but so the public would do what the Library is not staffed to do all by itself: add tags. Says Quartz:
to date, the collection has garnered over 267 million views, and over 400,000 tags have been added to images on Flickr by users. Through a “tagathon” with the Wikimedia UK community, the Library discovered over 50,000 maps in the collection, which they are now in the process of fitting into a modern map.
I can’t figure out how to search within a collection at Flickr, but this view at least does some clustering.
The 1998 Digital Millennial Copyright Act (DMCA), among other restrictions, makes it a criminal act to try to figure out how a software program works if it uses copyright protections (typically some form of Digital Rights Management). (The Berkman Center’s Digital Media Law Center has an excellent explanation of this.)
There are exceptions and exemptions, but it overall it is symptomatic of government’s prioritizing private business interests over public learning.
David S. Landes’ fascinating book, Revolution in Time, mentions an early case of DRM and an attempt at an anti-circumvention policy (pp. 172-5). It is literally a case: a watch case.
As Landes tells it, at the end of the 18th century, the most noted pioneering clockmaker was John Arnold. Arnold, the son of a watchmaker, rose rapidly, even presenting King George III in 1764 with a clock so small that it fit into a ring. But from around 1781, he began to run into a young upstart named Thomas Earnshaw. Earnshaw had invented a spring detent escapement (illustration) that proved to work better than Arnold’s, and would eventually replace it.
Arnold’s detent.
Arnold introduced a spring detent remarkably like Earnshaw’s remarkably soon after the latter introduced his, leading Earnshaw to think that Arnold had copied one of his early models. There were means, motive, and opportunity, for Earnshaw had been forced to disclose his innovation in order to try to raise the hundred pounds required to patent it. One of the people he showed it to was Thomas Wright, watchmaker to the King. Arnold had asked Wright for access to one of these prototype models on the grounds that Arnold had already applied for his own patent. Wright provided it.
Writes Landes:
When Earnshaw heard of this, he was furious. Wright defended himself by saying that he had not given Arnold permission to open the watch and had protested when he did: “Mr. Arnold, I will not have the watch opened.” To which Arnold had haughtily replied by asking if anyone in Wright’s shop knew how to make a watch anyway and then answered his own question by saying that “so far from being able to make a watch, none of them knew what o’clock it was.” This insolence was enough to provoke even a theeing-thying Quaker. “Mr. Arnold,” said Mr. Wright, “it does not signify whether I can make a watch or not, I don’t fear getting plenty of employee at mending thine, and if the watchmakers do not know what o’clock it is they can know by going to Greenwich for it as thee does.”
Nothing like #QuakersTalkingSmack.
In any case, it’s a new millennium and time for a copyright act suited for that new millennium.
Secretary of State John Kerry gave a speech in Seoul yesterday about the Internet, setting out five principles of cybersecurity.
The talk is quite enthusiastic and progressive about the Net. Sort of. For example, he says, “[t]he United States considers the promotion of an open and secure internet to be a key component of our foreign policy,” but he says this in support of his idea that it’s crucial to govern the Internet. On the third hand, the governance he has in mind is designed to keep the Net open to all people and all ideas. On the fourth hand, predictably, we don’t know how much structural freedom he’s willing to give up to stop the very Worst People on Earth: those who share content they do not own.
Overall, it’s a speech that we can be pretty proud of.
Here’s why he thinks the Net is important:
…to begin with, America believes – as I know you do – that the internet should be open and accessible to everyone. We believe it should be interoperable, so it can connect seamlessly across international borders. We believe people are entitled to the same rights of free expression online as they possess offline. We believe countries should work together to deter and respond effectively to online threats. And we believe digital policy should seek to fulfill the technology’s potential as a vehicle for global stability and sustained economic development; as an innovative way to enhance the transparency of governments and hold governments accountable; and also as a means for social empowerment that is also the most democratic form of public expression ever invented.
At its best, the internet is an equal-opportunity platform from which the voice of a student can have as much reach as that of a billionaire; a chief executive may be able to be out-debated by an entry-level employee – and there’s nothing wrong with that.
Great, although why he needed to add a Seinfeldian “Not that there’s anything wrong with that” is a bit concerning.
He then goes on to say that everyone’s human rights extend to online behavior, which is an important position, although it falls short of Hillary Clinton’s claim while Secretary of State that there is a universal “freedom to connect.”
He then in an odd way absolves the Internet from blame for the disruption it seems to cause:
The internet is, among many other things, an instrument of freedom. It’s a tool people resort to in response to the absence and failure or abuse of government…Anyone who blames the internet for the disorder or turmoil in today’s world is just not using their head to connect the dots correctly. And banning the internet in a misguided attempt to impose order will never succeed in quashing the universal desire for freedom.
This separates him from those who think that the Net actually gives people an idea of freedom, encourages them to speak their minds, or is anything except a passive medium. But that’s fine since in this section he’s explaining why dictators shouldn’t shut down the Net. So we can just keep the “inspires an ambition for political freedom” part quiet for now.
“The remedy for the speech that we do not like is more speech,” he says, always a good trope. But he follows it up with an emphasis on bottom-up conversation, which is refreshing: “It’s the credible voices of real people that must not only be enabled, but they need to be amplified.”
To make the point that the Net empowers all sectors of society, and thus it would be disastrous if it were disrupted globally, he suggests that we watch The Day the Earth Stood Still, which makes me think Secretary Kerry has not watched either version of that movie lately. Klaatu barada nikto, Mr. Kerry.
To enable international commerce, he opposes data localization standards, in the course of which he uses “google” as a verb. Time to up your campaign contributions, Bing.
Kerry pre-announces an international initiative to address the digital divide, “in combination with partner countries, development banks, engineers, and industry leaders.” Details to follow.
Kerry tries to position the NSA’s data collection as an enlightened policy:
Further, unlike many, we have taken steps to respect and safeguard the privacy of the citizens of other countries and to use the information that we do collect solely to address the very specific threat to the United States and to our allies. We don’t use security concerns as an excuse to suppress criticisms of our policies or to give a competitive advantage to an American company and any commercial interests at all.
You have our word on that. So, we’re good? Moving on.
Kerry acknowledges that the Telecomm Act of 1996 is obsolete, noting that “Barely anybody in 1996 was talking about data, and data transformation, and data management. It was all about telephony – the telephone.”
Finally, he gets to governance:
So this brings me to another issue that should concern us all, and that is governance – because even a technology founded on freedom needs rules to be able to flourish and work properly. We understand that. Unlike many models of government that are basically top-down, the internet allows all stakeholders – the private sector, civil society, academics, engineers, and governments – to all have seats at the table. And this multi-stakeholder approach is embodied in a myriad of institutions that each day address internet issues and help digital technology to be able to function.
“Stakeholders” get a “seat at the table”? It’s our goddamned table. And it’s more like a blanket on the ground than polished rare wood in a board room. Here’s an idea for you, World Leaders: How about if you take your stakes and get off our blanket?
Well, that felt good. Back to governing the Internet into the ground. And to be fair, Kerry seems aware of the dangers of top-down control, even if he doesn’t appreciate the benefits of bottom-up self-organization:
That’s why we have to be wary of those who claim that the system is broken or who advocate replacing it with a more centralized arrangement – where governments would have a monopoly on the decision-making. That’s dangerous. Now, I don’t know what you think, but I am confident that if we were to ask any large group of internet users anywhere in the world what their preferences are, the option “leave everything to the government” would be at the absolute bottom of the list.
Kerry now enunciates his five principles.
First, no country should conduct or knowingly support online activity that intentionally damages or impedes the use of another country’s critical infrastructure.
Second, no country should seek either to prevent emergency teams from responding to a cybersecurity incident, or allow its own teams to cause harm.
Third, no country should conduct or support cyber-enabled theft of intellectual property, trade secrets, or other confidential business information for commercial gain.
Fourth, every country should mitigate malicious cyber activity emanating from its soil, and they should do so in a transparent, accountable and cooperative way.
And fifth, every country should do what it can to help states that are victimized by a cyberattack.
Two particular points:
First, #2 establishes Internet repair teams as the medical support people in the modern battleground: you don’t fire on them.
Second, #3 gets my goat. Earlier in the talk, Sect’y Kerry said: “We understand that freedom of expression is not a license to incite imminent violence. It’s not a license to commit fraud. It’s not a license to indulge in libel, or sexually exploit children.” But the one crime that gets called out in his five principles is violating copyright or patent laws. And it’s not even aimed at other governments doing so, for it explicitly limits the prohibition to acts committed “for commercial gain.” Why the hell is protecting “IP” more important than preventing cross-border libel, doxxing or other privacy violations, organizing human trafficking, or censorship?
Oh, right. Disney. Hollywood. A completely corrupt electoral process. Got it.
Now, it’s easy to be snarky and dismissive about this speech — or any speech — by a Secretary of State about the Internet, but just consider how bad it could have been. Imagine a speech by a Secretary of State in an administration that sees the Internet primarily as a threat to security, to morals, to business as usual. There’s actually a lot to like in this talk, given its assumptions that the Net needs governments to govern it and that it’s ok to spy on everyone so long as we don’t do Bad Things with that information that we gather.
So, before you vote Republican, re-read Hillary Clinton’s two speeches [20102011] on Internet freedom.
At Jonathan Zittrain‘s awesome lecture upon the occasion of his ascending to the Bemis Chair at Harvard Law (although shouldn’t you really descend into a chair?), he made the point that through devices like Microsoft Kinect, our TVs are on the verge of knowing how many people are in the room watching. After all, your camera (= phone) already can identify the faces in a photo.
This will inevitably lead to the claim that if five people are watching a for-pay movie on a TV, we ought to be paying 5x what a single person does. After all, it’s delivering five times the value. What are you, a bunch of pirates?
There is some fairness to that claim. We’d pay for five tickets if we saw it in a theater.
But it also feels wrong. Very wrong. And not just because it costs us more.
For example, I’m told that if you buy a subscription to the NY Times it comes with one license for online access. So, if you’re having the old roll o’ stories thrown onto your porch every morning, your spouse is free to read it too, but you’re going to have to buy a separate online subscription if s/he wants to read it online. That doesn’t feel right.
The pay-per-use argument may be fair but it flies in the face of how we all know culture works. Culture only exists if we share what matters to us. There is no culture without this. That’s why it’s so important I can share a physical book with you, or can send you a copy of a magazine article that I think you’ll like. Culture is the sharing of creative works and the conversations we have about them.
That’s why the creators of the US Constitution put a time limit on copyright. Yes, it feels unfair if after fourteen years (the original length of copyright protection) someone publishes my book without my permission and doesn’t give me any of the profits. Sure. But fairness is not the only criterion.
Culture cannot flourish or perhaps even exist when everything has a fair price.
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!
Can someone help me understand how Louis Menand sets up his Oct. 20 piece on copyright in the New Yorker? Menand’s a great writer, and the piece has gone through the NYer’s famous editorial process, so I am confident that it’s my fault that I am stuck staring at a couple of paragraphs not understanding what he’s talking about. I expect to be slapping my forehead momentarily.
Let me tell you why this matters to me, beyond my high expectations for New Yorker writing. When the New Yorker takes the Internet as its subject, it tends to be in the Traditional Resistant camp — although I acknowledge that this may well be just my observer’s bias. Their writers acknowledge the importance of the Net and nod at the good it does, but then with some frequency focus on the negative side, or the over-inflated side. Of course that’s fine. They’ve got some great writers. And Menand is not taking that side in this article. But if Menand’s description of how the Web works is as wildly wrong as it seems to me to be, then it raises some special concerns. If the New Yorker can’t get these basics right, then we have further to go than I’d thought. (Keep in mind that I am not all confident in how I’m reading this passage in the Menand article.)
So, Menand begins by imagining that an anthology called “Most Thoughtful Essays” includes his essay without his permission. Then he asks us to…
…suppose that a Web site, awesomestuff.com, ran an item that said something like “This piece on copyright is a great read!” with a hyperlink on the word “piece” to my article’s page on The New Yorker’s Web site. You wouldn’t think this was banditry at all. You would find it unexceptionable.
…
Some courts have questioned the use of links that import content from another Web site without changing the URL, a practice known as “framing.” But it’s hard to see much difference. Either way, when you’re reading a linked page, you may still be “at” awesomestuff.com, as clicking the back button on your browser can instantly confirm. Effectively, awesomestuff.com has stolen content from newyorker.com, just as the compiler of “Most Thoughtful Essays” stole content from me. The folks at awesomestuff.com and their V. C. backers are attracting traffic to their Web site, with its many banner ads for awesome stuff, using material created by other people.
When he says “it’s hard to see much difference,” the two cases seem to be awesomestuff.com including a hyperlink “to my article’s page on the NYer’s Web site” and awesomestuff.com embedding the entire article at their site in an iframe. But in the first case (clicking on the normal link) you are taken to NewYorker.com and are not on awesomestuff.com.
Even more confusing, when you’re now at NewYorker.com, clicking the back button will confirm that you were in fact not at awesometuff.com, for the page will change from NewYorker.com to awesomestuff.com. And, if awesomestuff.com has embedded Menand’s article via an iframe, clicking on the back button will take you to whatever page you were at before awesomestuff, thus proving nothing.
Finally, since the point of all this is to show us how linking is equivalent to printing Menand’s article in a paper anthology without his permission, it’s weird that Menand leaves out what is by far the most common case that might be equivalent: when a page neither links to another page nor uses an iframe to embed its content, but simply copies and pastes from another site.
So, as far as I can tell, the most coherent way of taking the words that Menand has written — and he’s a precise writer — contradicts the most basic experience of the Web: clicking on a link and going to a new page.
So where am I going wrong in reading him???
By the way, the rest of the article provides a good general overview of the copyright question, and is sympathetic to the reformist sensibility, although it is surprisingly primer-like for a NYer article. IMO, natch.
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.
