Over the weekend, Larry Lessig penned a cogent argument for a common-sense reading of copyright law. The problem, he writes, is that in our attempts to quash peer-to-peer file-sharing (stealing), we're wreaking a huge amount of collateral damage on those that remix content.
In other words, all piracy is not created equal. Some, like the remixers, should be protected by US Fair Use doctrine:
We are in the middle of something of a war here -- what some call "the copyright wars"; what the late Jack Valenti called his own "terrorist war," where the "terrorists" are apparently our kids. But if I asked you to shut your eyes and think about these "copyright wars," your mind would not likely run to artists like Girl Talk or creators like Stephanie Lenz. Peer-to-peer file sharing is the enemy in the "copyright wars." Kids "stealing" stuff with a computer is the target. The war is not about new forms of creativity, not about artists making new art.
Interestingly, Microsoft and Viacom may have already found one great way to manage this: charge for commercial use of their intellectual property, but not amateur use.
Microsoft's policy is focused on open-source software, in which it covenants not to sue unpaid open-source developers. This is incompatible with open source, but it may apply more favorably to the entertainment industry.
Most consumers aren't in the habit of dropping open-source code into their own open-source projects, but many people (including myself) routinely take music or video owned by the major entertainment companies and drop it into family videos. Viacom, as Lessig points out, "has effectively promised to exempt practically any amateur remix from its lawyers' concerns." In other words, it has gone down the road that Microsoft tried to pave for open-source developers.
We need this common-sense approach to remixing content on the Web. We need to encourage creativity, not stifle it. The entertainment industry isn't going to lose any money if my kids' soccer team sees a slideshow that includes music from The Shins. In fact, it might actually gain money as the kids go out and buy more music.
This policy encourages exploration and adoption of new music. Can we please clear out the lawyers for a few minutes so that we get common-sense copyright enforcement?
Just when I think the freedom brigade is on a roll, I read nonsense like this from the European Union, as reported in Ars Technica, suggesting that the EU is considering extending copyright terms by 45 years in order to guarantee income for aging artists. US entitlements like Medicare having nothing on this....
Every few years the US extends copyright terms because Disney lobbies the heck out of Congress' weak-kneed legislators to prevent Mickey Mouse from becoming public domain. After pilfering the commons for the basis of much of its revenue (Beauty and the Beast, Cinderella, and even, perhaps, Mickey Mouse), Disney keeps going back to the congressional well to ensure its God-given right to make money on old intellectual property forever and ever.
But that's the US. I would have hoped that the EU would show a bit more common sense. Alas! Its proposal completely fails to solve even the problem it sets out to fix, as Open Rights Group notes:
"The Commission makes much of the challenging financial situation facing aging performers," it says. "While we do not accept that IP law is an appropriate mechanism to deal with this situation, as we will demonstrate in the second section of this submission, it also turns out to be a very inefficient one."
... Read more
Down in the Slashdot commentary on an excellent New Yorker article called "The Permission Problem" was this interesting comment, one that resonates with me.
The idea in the New Yorker article is that intellectual property (IP) law perhaps creates more inefficiencies than it resolves by making it too expensive to bother creating around existing IP and by making it apparently too expensive to round up IP owners to get the proper permissions. Against this argument was "Shados'" suggestion that what people really want is weak IP, not no IP:
Give your songs for free! The money is on the tour... Of course, as long as another band doesn't do -exactly- the same songs with a bigger marketing budget (and if everyone does it, ONE of the bands who copy you will most likely be better). Also, that's as long as the video of your show isn't in hi definition 7.1 surround blu ray the day after it for free (or even worse, SOLD by someone else). With absolutely -zero- copyright, its a lot less powerful as a promotion tool. (Now it works because you're only letting indiviuals step in... once corporations can rape your copyright too, things get a little grim). Oh, and without IP laws, people can rip off your name, your logo, everything, and not only sell it as free promotion to you... but make it -theirs- and use it for -themselves-.
If you're really well known... no one will think the "fake" Metallica is the real thing. If you're just starting though? BANG! Gone.
This reminds me of Radiohead's Thom Yorke, who commented to David Byrne that Radiohead's decision to give away In Rainbows could only work because Radiohead has an established brand, one for which people are willing to pay:
... Read moreIt was depressing to read that William Patry, Google's senior copyright counsel, has decided to stop blogging. With only occasional gusts of lucid intelligence in the blogging community, Patry's blog was a full-out gale.
Due to "crazies...who do not have a life of their own and so insist on ruining the lives of others" by comment-bombing Patry's blog, and due to the deteriorating use of copyright to harm rather than help, Patry has opted to leave the blogging building:
Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like Humpty Dumpty, the copyright law we used to know can never be put back together again.
On the "crazies," I completely understand. Anonymity and geographical distance make people bold to say things that ought not be said. I'm also guilty of this. I suspect we all are. Some things are too easily said with a keyboard.
But on the latter, it's dispiriting to see confirmation from such a copyright expert that we may be past redemption. In both copyright and patent law, the powerful continue to hoard their power (which is natural), while judges and lawmakers seek to capitulate to that power (which is not natural--or shouldn't be).
... Read moreStill plowing through Van Lindberg's excellent book on open-source software law, and he discusses a court case that I somehow missed in three years of law school.
Van references IBM's efforts to keep PC clones out of the market. IBM apparently made its BIOS information (and source code) widely available as a way to poison the well. In other words, any engineers who saw the BIOS code and then attempted to reverse engineer it would be in violation of IBM's copyrights.
Hmm....While I believe Microsoft made its protocols available for public inspection due to pressure from the European Commission, the effect on developers is very similar to the IBM BIOS case. If I use the Microsoft documentation to reverse engineer or otherwise integrate Microsoft code or ideas into my own, I'm highly susceptible to a lawsuit.
This is why making information freely available, without associated IP grants freely available, perhaps does more harm than good. Code without rights is a lawsuit waiting to happen.
We live in a remix culture. Open source, user-generated content and its reuse, etc. But overly broad enforcement of copyright threatens to stifle the next generation of creativity and innovation, a new report from the Center and American University's Washington College of Law finds.
The study, entitled "Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video," details how such video reuse fits into the Fair Use doctrine. NBC Universal and other copyright holders, however, are determined to reinterpret the law and this doctrine to the detriment of culture. Our remix culture. (Same as it ever was.)
The courts tell us that fair use should be "transformative"--adding value to what they take and using it for a purpose different from the original work. So when makers mash up several works--say, The Ten Commandments , Ben-Hur and 10 Things I Hate about You , making Ten Things I Hate about Commandments--they aren't necessarily stealing. They are quoting in order to make a new commentary on popular culture, and creating a new piece of popular culture.
Big deal, you say? Consider the alternative.
... Read moreVictor Keegan of The Guardian asks an important question for today's market of near-disposable IP: how long should we allow copyright to endure? When business models increasingly revolve around immediate monetization, does it make sense to hold copyright for 50 to 70 years after the creator dies?
It is curious that there is so much pressure to extend copyright in an internet age defined by the willingness to share knowledge freely, ranging from Wikipedia to the genome project. The reason? Producer lobbies are far more powerful than difficult-to-organise consumer ones.
I'm somewhat biased in this - after all, my understanding of IP came of age under the tutelage of Larry Lessig in law school - but I believe the desire to extend copyright interminably bodes ill for both consumers and creators of intellectual property. That is, provided we actually policed it, which we fortunately don't (or don't strictly) [PDF].
As Keegan points out, and which I've noted before, we don't really have a "respect for IP" problem that goads us into extending copyright. It's just that our producers are still tweaking business models for a digital age that recognize the ease of copying and capitalize on this, rather than fear or shun it:
... Read moreEver wonder what the world would be like if copyright holders actually enforced their rights on a regular basis? Where IP is respected to the nth degree? You don't want to know.
But in case you do, Bruce Schneier points to an excellent law review article by John Tehranian: "Infringement Nation: Copyright Reform and the Law/Norm Gap" [PDF]:
By the end of the day, John has infringed the copyrights of twenty emails, three legal articles, an architectural rendering, a poem, five photographs, an animated character, a musical composition, a painting, and fifty notes and drawings. All told, he has committed at least eighty-three acts of infringement and faces liability in the amount of $12.45 million (to say nothing of potential criminal charges).
... Read more
The Computer and Communications Industry Association--a Washington D.C.-based think tank and lobbying group--has issued a report [PDF] that dispels some common mythology around the value of intellectual property to the U.S. economy. CCIA found that "fair use" exceptions to copyright created $4.5 trillion in annual revenue for the U.S. economy.
That's a big number, but it's not surprising. Just think of how difficult it would be to innovate if anyone (including Microsoft et al., which are members of CCIA) relied on a strict view of copyright.
From InformationWeek's report of the study:
... Read moreThe answer appears to be a qualified 'Yes.' As reported by VentureCake (discovered via Slashdot), VMware's ESX appears to be derived from Linux in a material way, and has been notified of such over a year ago (and repeatedly since then). Yet it has not disabused the accuser (Christopher Helwig, the Linux SCSI storage maintainer and one of the top 10 contributors to the Linux kernel) of the notion.
If true, VMware has a problem on its hands. But the problem is easily solved by simply abiding by the GPL, and may not involve giving away the crown jewels, as it were. What seems to be at issue is a driver that ESX requires:
... Read more
