Dennis Kucinich, writing on Lawrence Lessig's blog, demonstrates that he gets copyright. I'm hesitant to mention this, actually, out of fears that readers may conclude that copyright is a left-right issue. It's not. It's an old-new issue. If you value new creation, you should value limited copyright laws. If you value the past over the present, stuff that some dead guy did over things done today, and maintaining the power of existing corporations at the expense of new and growing businesses, then you should value absolute copyright. To the extent that "conservative" means favoring corporate competition, limited government, and economic growth, conservatives should find just as much to support in limited copyright as liberals like Kucinich do.
Saturday, August 16, 2003
The San Jose Mercury News has info on a court ruling that is bizarre, if the article is describing it correctly. Video Pipeline, a company that compiles promo clips for movies, has been successfully sued by Disney for copyright infringement. According to the article, the reasoning from Judge Simandle (the AP article reprinted in the Mercury News erroneously gives his name as Siandle) is that movie trailers are creative works in their own right and protected by copyright, and therefore one company cannot create trailers for another company's movies. I'm not following that last leap of logic.
The ruling is available through the Rutgers School of Law. The basic facts of the case are that Video Pipeline had been making copies of trailers provided by Disney to promote Disney's movies available on the Internet. Disney requested that Video Pipeline stop making the trailers available online and stopped providing trailers for new movies to Video Pipeline. Video Pipeline proceeded to both copy Disney's trailers and to edit short promo clips from Disney's movies and make them available online.
Copyright registration is a significant issue in the case. Disney did not register copyright in the trailers themselves, and Video Pipeline argued that Disney had no right to bring an infringement claim for the trailers. Judge Simandle ruled that "Registration of the underlying copyrighted work is sufficient to sustain a copyright infringement action pertaining to the derivative works," following existing rulings. The logic seems to be: Derivative works consist of existing work and new work. Copyright in the derivative work applies only to the news work. Therefore, copyright in the existing work contained in the derivative work is covered by the copyright in the existing work, even if copyright is not registered in the derivative work.
I'm not sure that I buy that thinking here. Assume for the moment that in general, a trailer constitutes fair use of a full length movie. (I expect to return to this assumption.) Then Disney's own trailers should constitute a fair use, placing the trailers outside the scope of copyright in the original work. The trailers should be subject to copyright protection, but only if the trailers themselves are registered. On the other hand, Simandle cites Lamb v. Starks in support. As described here, it reached the same conclusion as here.
On to the question of fair use. Judge Simandle discusses fair use for Disney's trailers and for the clips Video Pipeline created together, but it strikes me that they should be considered separately. Against the "purpose and character of the use," Simandle states that the trailers do not have a transformative use because they merely truncate the original and do not add information. Despite the fact that he apparently approvingly cites Kelly v. Arriba Soft, which held that thumbnail images do transform the original images, he declares this strongly favors Disney.
There's a definite hole here, which is only filled because he has declared that Disney does not need to separately register copyright in the trailers. He asserts that Video Pipeline's clips have the same purpose as Disney's trailers, which is true. He then appears to conclude that therefore the clips have the same purpose as the movies themselves, which I'm finding rather mindblowing and which only holds on the basis of the previous equivalence of the trailers and the movies.
As the "nature of the copyrighted work," Simandle holds that the movies, as works of fiction, favor Disney. This test, at least as used here, seems to be simply reduced to the question of fiction or non-fiction, with fiction favoring the copyright holder and non-fiction favoring the fair user. I feel like there's gotta be more to it than that.
The third test is the "amount and substantiality" of the copied material. Despite the fact that these are two minute clips taken from two hour movies, the judge is concerned that the clips may come from the heart of the movie and that the clips draw all their material from the movie, and he therefore favors Disney. Notice that he has turned this factor upside down. The text of the relevant passage of law is, "the amount and substantiality of the portion used in relation to the copyrighed work as a whole," but he has measured the amount and substantiality of the portion used in relation to the derivative work as a whole.
The fourth factor is effect on the market for the copyrighted work. This should be a slam dunk. The whole point here is to sell more movies, so the clips should increase the market, a huge win for Video Pipeline. That is not how Simandle rules. Relying on the Napster ruling, which states "If the intended use is for commercial gain, that likelihood [of market harm] may be presumed," he concludes that Video Pipeline is seeking commercial gain by advertising Disney's movies, and therefore must be harming the sales of Disney's movies. Therefore he concludes that this, too, favors Disney.
Fortunately, that seems to conclude the rulings on copyright issues, which is a good thing, because if this sort of reasoning continued, I might be forced to throw a chair through a window. I didn't believe the newspaper report, but now I see that things are worse than I feared. I'm going to go ahead and state that this ruling is mindbogglingly wrong.
Going on, I'm going to disagree with the judge's thinking on trademark issues under the Lanham act on the basis that he has misidentified the customer. The customer in this case is not the viewer of the clip, it is the website operator who pays for the use of the clip. This reasoning may also contradict the Supreme Court ruling in Dastar v. 20th Century Fox, which I take to mean that trademark issues should stay out of copyright debates.
The missing piece of logic from the news report is that the new clips are infringing on the original movie and do not qualify as fair use. I have to acknowledge that that reasoning makes more sense than what I was originally thinking, which was that the mere fact of making trailers precludes anyone else from also making trailers. Still, overall the ruling is wrong, wrong, wrong. (from JD's New Media Musings)
TeleRead points out and rips holes in a PC World article about copyright law. Once again, the presented alternatives are too much copyright and none, and the supposed importance of copyright to creativity outweighs all other concerns. TeleRead has done enough damage, so I won't continue here, except to note that once again the supporter of absolute copyright is conflating commercial piracy and file sharing.
Ernie the Attorney wants to break the P2P file-trading logjam. He provides a link to an EFF page about requesting Congressional intervention. Senator Norm Coleman is already requesting hearings, of course, but the more noise we make, the bigger impact it will have.
Joi Ito asks, "Is streamripping illegal?" His reasoning: "It is SOOO useful it MUST be illegal." Stream rippers convert Internet radio broadcasts to saved MP3 files, typically with all the metadata you would want on MP3 files. On the one hand, they're not that different from taping off the radio. On the other, there is precedent declaring this sort of thing illegal, at least in the case of encrypted video streams. For years I've had the attitude that I should be able to hang on to any data which passes through my computer, which has led to lots of frustration about programs which generally haven't let me save file which I have downloaded or streamed. (from JD's New Media Musings)
A Copyfighter's Musings has information about "Copyright and Digital Media in a Post-Napster World", a paper by GartnerG2 and the Berkman Center. The paper has one of the most complete summaries of recent and ongoing copyright legislation and litigation that I've seen. It promises a second paper to look forward at possible future scenarios for the development of copyright on the Internet.
Reality Panic is worry about losing classic video games. He identifies one of the big problems as copyright. Games for which the publisher has no interest or the publisher doesn't even exist anymore are still protected under copyright, which provides a disincentive to collect and save the games. Under current law, a game originally sold in 1980 will still be covered by copyright until 2075. If efforts aren't made to save these games now, what are the odds of finding a working copy then?
The American Council on Education has released a report (as a PDF) on the legal liabilities of file sharing. It's a reasonable summary of copyright law generally and doesn't strike me as overly biased toward the music industry despite industry involvement writing the report. (from Slashdot)
In another example of companies suing their customers, DirecTV has been suing purchasers of smart card programmers. They brag about filing over 11,000 lawsuits so far. Smart cards can be used for theft of satellite TV service, which is why DirecTV is pursuing the lawsuits. Smart card devices fall under the DMCA as copyright protection circumvention devices. However, DirecTV's strategy ignores the possibility of non-infringing uses of smart card technology and they have sued people who have purchased the technology for legitimate purposes. The cost of fighting these lawsuits is high enough that targets are choosing to settle for thousands of dollars rather than fight to continue to make legal uses of the technology. This is as outrageous as the RIAA lawsuits against filesharers, with the difference that DirecTV has been acting longer. The EFF and the Stanford Center for Internet & Society have set up a website on defense against the DirecTV lawsuits. If you use DirecTV satellite television service, you should seriously consider whether you want to continue to support these lawsuits by continuing to use the service. (from Slashdot, which includes comments from targets of the lawsuits)
Daniel Gifford has written an article (as a PDF) which describes the interaction between antitrust law and patent and copyright law. Seems to me that it's like describing the interaction between an irresistible force and an unmovable object. One sentence summary: patent and copyright are winning. The article has some useful comments on copyright misuse, which has grown out of the legislative and judicial history of patent misuse. Unintended Consequences has a brief summary of the article. (from GrepLaw)
Friday, August 15, 2003
Lawrence Lessig has a great story. Jonathan Percy runs a fan site for the band Radiohead. It includes, as fan sites tend to, song lyrics. Warner, the band's publisher, complained, since posting the lyrics is a copyright infringement, after all. When Percy took lyrics down, fans complained so much that Warner ended up giving him permission to publish the lyrics. The lesson is simple. When copyright holders are less uptight about controlling their works, everyone wins. Let's hope Warner is on the way to learning this more generally.
[Updated 7:52 PM] bIPlog has info on the National Gallery's worries about copyright infringement. Personally I think they should get over it and put the images on the web. Aren't they a museum, after all? Isn't their function to increase public access to art?
The first sentence of the referenced article in New Scientist shows how misguided the thinking is on this. It reads, "A scheme to digitise famous paintings that was unveiled last week by the National Gallery in London, UK, may be placing the collection at risk of digital piracy." Stop. What exactly is at risk? Not the collection itself. It's in no danger of destruction or theft. It's not even in danger of forgery. The risk is that people might make (and even sell) copies of the digital copies of the paintings in the collection. Now that we've correctly identified the risk, how does that compare to the risk to the museum before they took digital photos of the paintings? Reflexively, it seems the same. Further, the risk of not making money off the copies should be weighed against the work the copies do to further the museum's goals of exposing people to art. I really don't see the problem, and I think the IFPI should let the National Gallery do its job.
Update 7:52 PM: I failed to notice the comment on bIPlog until FurdLog called attention to it. It makes the point that copies of public domain artworks aren't copyrightable according to existing case law. Even more reason to just go forward and distribute the images. I suspect this also applies to the Gutenberg Bible.
TeleRead has info on Project Gramophone, described as like Project Gutenberg for recordings. Sounds great. I want in.
It's unfortunate when a company that should be at the forefront of copyright innovation really doesn't get it. Lawrence Lessig has the story of MP3.com blowing it. I have to admit that I have some sympathy for MP3.com's position. I'm rather skeptical of the ads for copyright services that run at the top of my blog (BlogSpot chooses them, not me.) and if I lumped the Creative Commons in with them, I'd blow it off too. Still, MP3.com miscomprehending Creative Commons and rejecting it is a disappointment.
Xeni Jardin and Kevin Marks are getting in on the compulsory licensing debate. Xeni wrote an article about compulsory licenses for Grammy.com which Kevin promptly tore apart on QuickTopic. The nifty thing about QuickTopic is that it allows anyone to add comments. Several others have posted comments, including one by Xeni herself.
My gut reaction is that there are lots of questions to be raised about compulsory licensing, which Xeni generally does without providing answers. I start to feel like Kevin's response is to try to stifle discussion by ranting about what a bad idea it is. Kevin likes to speak of compulsory licensing as music nationalization, as if that automatically ends the debate. The whole point of the copyright debate is the question of to what extent creative works should be private property. Those of us who favor limiting copyright laws have emphasized the value of creative works as public property. I'm not sure I see why creative works as state property should be rejected out of hand.
Public Knowledge is seeking tales of the public domain. They are requesting stories about copyright law interfering with creative work or of creative work that has draw upon the public domain. If you have a story, share it. (from Wendy Seltzer's Weblog)
Internet providers aren't happy about the RIAA's plans to sue everyone. The New York Times writes that ISPs are asking the RIAA about its plans (cache). The article includes some fighting words from the RIAA. Matt Oppenheim is quoted saying, "We're not asking them to police the Internet. . . . If they were policing we wouldn't have this problem." Well I'm confused. Are you or aren't you asking them to police the Internet?
The RIAA has suffered a setback in its campaign to sue everyone. A judge has ruled that MIT and Boston University do not have to obey the subpoenas. The ruling states that subpoenas filed in Washington DC, as these were, cannot be served in Massachusetts. The RIAA has vowed to file new subpoenas in Massachusetts.
GrepLaw has a post using email forwards to challenge the basis of copyright. No one gets money, or even credit, for writing the email messages that get forwarded around the Internet. And yet they keep writing them anyway, despite the lack of incentive, so perhaps incentives, including copyright law, are not needed after all. The flaw here is in thinking that since by the time it reaches you, an email forward has no named author and no apparent economic incentive for creation, that it did not have economic incentives at the time of creation.
Many forwarded messages were originally published in a newspaper or magazine and the author was presumably paid for writing it. I am in the habit of sending the authorship credit back to the sender of the message when I receive a forwarded message that I recognize. I have found that this is an effective way to stop receiving forwards. Apparently people don't like to be told about the author of the messages they forward. In any event, the premise is flawed, so the conclusions don't hold. Not that I think people who forward messages should be sued, but you can't do away with copyright law that easily.
Copywrongs.org is a new website devoted to speaking out for and giving a voice for targets of recording industry lawsuits. I'm looking forward to the development of the site. (from JD's New Media Musings)
[Updated 2:51 PM] Marci Hamilton has written a column giving her reasons for "Why Suing College Students for Illegal Music Downloading Is the Right Thing To Do". It won't be a surprise to hear that I think her reasoning is weak. For starters, she equates suing individuals with upholding copyright law generally. I think anyone who illegally manufactures and sells copyrighted books, DVDs, or CDs should definitely be punished, but I don't extend that to individuals making files available on the Internet. She also overstates the benefit of copyright, saying that without copyright, there wouldn't be country music, as if music didn't exist before copyright law began to protect it. I also think there's a logical leap from the importance of copyright to the music industry to supporting haphazardly sending out thousands of subpoenas as the best approach to defend copyright. (from JD's New Media Musings)
Thursday, August 14, 2003
[Updated 8/15 7:35 PM] A Copyfighter's Musings carries on about compulsory licensing. I think comparing compulsory licensing to the Eye of Sauron, as Mikael Pawlo does in the post Derek links to, goes a little far. I'm also struck by the offense Pawlo then takes when William Fisher, the originator of the plan under discussion, is referred to as a communist. Apparently Sauron is okay, but communism isn't.
Anyway, I'm still really not sold on compulsory licensing. The more I've read about copyright the more it feels like we're starting with a really unbalanced position on copyright and then trying to compromise from there. I'd rather be trying to reset copyright generally. Derek says he's an enthusiast of Fisher's proposal, so I hope he'll get to his arguments supporting the plan before too long.
Update 8/15 7:35 PM: More in this thread: Mary Hodder (of bIPlog) responded to Derek on the Pho mailing list. Derek includes her post in his response. The conversation has moved on to the question of gaming or cheating watermark or registration systems. Here's my question: I've got close to 1,800 MP3s on my computer. (None of them were downloaded. I ripped the vast majority off CDs I own. I'd have more, but I've been slow about ripping my CD collection.) I have software to listen to these (and rip more) which I like, and a portable MP3 player which I love. In order for a watermark or registration system to work, I'd have to stop using all of them. What incentive do I have to switch over to the watermarked files? Don't tell me the law, because the Pew study has already demonstrated that the majority of people who download files don't care about the law.
Mary posts Ernest Miller's response (also from Pho). He does point out the problem, even if his tone is more harsh than necessary. She also points to Derek's collection of all the posts in this thread from Pho. I'm finding Fred von Lohmann's comments the most interesting. He argues for compulsory licensing as the only solution in the face of not killing file sharing without killing the Internet and innovation and the continuing need to pay creators for their work. I'm curious about his response to Lunney's paper, which essentially argues that there is no incentive to create tied to file sharing revenues.
Time to get creative: Creative Commons is looking for two-minute movies that explain what the creative commons is all about. I have some thoughts on the subject. If you're interested in collaborating on something, get in touch.
Senator Ernest "Fritz" Hollings has announced that he will not seek re-election in 2004. Hollings has been a major actor on media issues in the Senate. Current actions include supporting the 35% cap on television station ownership. He was a co-author of the Telecommunications Act of 1996, which was intended to encourage competition for local phone service. He has supported a "broadcast flag" to prevent copying of television broadcasts. Related to that, he supported the Consumer Broadband and Digital Television Promotion Act (CBDTPA), which would have restricted the behavior of all computers in the name of preventing television signals from copying. An earlier version of the bill was the Security Systems Standards and Certification Act (SSSCA). It is interesting that The Hollywood Reporter referred to Hollings as an "industry thorn," given the many pieces of legislation that he supported and that would benefit the movie industry. It is true that he supported legislation that Hollywood opposed, but he is widely known for supporting the movie industry at the expense of technology and individuals.
Penny Arcade is an online comic that has occasionally had a rough time on copyright and trademark issues. The major topic of the comic is videogames, but it relies on popular culture in general in its writing. Recently, Gabe (one of the authors) wrote a post concerning another comic that used elements from Penny Arcade in a T-shirt. He wrote, "Honestly we do not care if he makes the shirt. . . . If furious thinks that is a clever design or one that his fans will enjoy and purchase then I think he should go ahead and make it. I appreciate all the mail I am getting from PA fans suggesting we do something to stop him but it just isn't that big of a deal." While that may not be a particularly nuanced view, it is commendable, and this is another example of creative reuse of existing work.
Some areas of copyright law are beyond what I can focus on. One example is international copyright law. Interesting things are happening in Europe, Australia, and the rest of the world but I've chosen to let it go for the most part. Derek Slater is beginning to work on international copyright over at A Copyfighter's Musings. If all this talk of American copyright law isn't enough for you, see what he has to say. International issues are important. They're just beyond my scope.
Wednesday, August 13, 2003
Sometimes someone on Slashdot writes an amazingly good comment. Flarelocke makes a property rights argument to justify reducing copyright terms. Unfortunately, his comment was basically ignored on Slashdot, but that doesn't mean we have to keep ignoring it. (from FurdLog)
Mark Rasch has a Security Focus column in which he states that copying is not theft. Unfortunately, not all of the details of his column are correct, but the more people stating the basic facts of copyright, the better. (from JD's New Media Musings)
The Pew Internet Project has published a report on music downloading. The most significant piece of information is that two-thirds of downloaders don't care whether the music is copyrighted. Another conclusion is that if their subpoenas don't change the behavior of file sharers, the RIAA may end up filing millions of lawsuits, on the basis of the 26 million people the report states share files online. (from TeleRead)
In an interview, Tim O'Reilly gives a reminder that copy protection was tried and failed in the software industry. He thinks that the music industry's attempts at DRM are foolish and when they give up, everyone will eventually win except for the companies that try to keep fighting. (from Foreword)
Ernie the Attorney is giving advice to law students. The advice sounds good to me, but I'm surprised that Ernie, who regularly writes about copyright issues, neglects them in this case. He suggests scanning all the textbooks and distributing them on CD-ROM. You might be thinking, "can't you let copyright issues drop?" But that's precisely my point. Under current law, I can't. This is clearly a good idea, or at least an idea worth trying. But is it worth trying if it might put you on the receiving end of a lawsuit? And does it make sense that this sort of idea could get you sued? Questions like that are the reason I can't stop thinking about copyright.
Aaron Swartz says, "Privacy, Accuracy, Security: Pick Two" about compulsory licensing.
Tech Law Advisor is arguing the difference between consumers and competitors and arguing that consumers are not using copyrighted works the same way that that competitors would and thus should not be subject to copyright laws. I'm actually going to argue the music industry's side on this and say that on the Internet, the difference between a competitor and a consumer is so slight as to be nonexistent. In support of that I'll point to my previous post (and the linked article) about social friction.
[Updated 8/14 2:31 PM] A Copyfighter's Musings has been doing lots of interesting reading lately. He discusses a paper which looks to redefine fair use. Too bad the paper itself is a Word document. Maybe someday it will appear in a format I can actually read. It's unfortunate, because from Derek's description, it sounds like all sorts of things that are not considered fair use today (such as file sharing) should be. Derek's notes will have to suffice.
update 8/14 2:31 PM: Thanks to Ravi Nanavati, I now have the paper in PDF format. I usually take the attitude that anything in a format I can't read isn't worth reading, but in some cases I'm really wrong. The takeaway message I get from the paper is that rather than relying on the Supreme Court ruling in the Sony Betamax case to determine fair use, courts have relied on reasoning more like the Ninth Circuit ruling in that case, which went against Sony.
In a nutshell, fair use is currently the obligation of the defendant, and the standard is based on lost sales of the copyrighted works. In contrast, the Betamax ruling placed the obligation on the plaintiff, so the plaintiff was obligated to prove both that a copyright infringement occured and that it was not fair use. Furthermore, the standard for fair use is much lower, and is based on weighing the social costs of the use against the social benefits. Defendants such as Madster and ReplayTV (which has already capitulated to the television industry) should pay attention.
I have previously challenged claims of the death of Sony, but after reading this paper, I take it back. Sony is dead. Hopefully this paper can play a part in bringing it back to life.
Derek has been doing more thinking about Lunney's paper. He seems reluctant to accept its conclusions. For Derek, the issue seems to hinge on the question of what fair use is. He calls fair use a mess without being willing to accept Lunney's approach.
Joho the Blog picks up on some irony in the movie industry. Funny how the industry's need for absolute control over their creations doesn't stop them from using Linux, whose creators give up any control over their work.
Tuesday, August 12, 2003
[Updated 8/13 3:05PM] More crazy legislation: the Protecting Children from Peer-to-Peer Pornography (P4) Act would require parental permission to use file sharing services. The fear appears to be that if people go looking for pornography online, they will find it. It's worth checking into how peer-to-peer is defined in the bill. These things usually catch lots of stuff they aren't intended to.
Update 8/13 3:05 PM: Boing Boing refers to the bill as the Peer-to-Peer Prohibition Act. Boing Boing also has a reminder to turn to THOMAS for more information. I'm interested in the list of co-sponsors. If Joseph Pitts, Jim DeMint, Christopher John, Mike Pence, Mark Souder, or John Sullivan is your Representative, tell them that you oppose this bill.
Eye Wash says that "Dictionaries should never become smaller, only larger", in response to Eric S. Raymond deleting entries from The Jargon File. My natural response would be to collect the deleted entries (surely they must exist in a cache or mirror somewhere) and repost them. But it also raises a question I've been idly thinking about. Does a copyright holder have any right to remove copyrighted material from the market?
Disney is a big practitioner of this. They regularly make video tapes and DVDs for sale for a limited time. This is clearly a manipulative ploy to boost short term sales, and is obviously protected by current copyright laws. My question is whether it should be. The idea of willfully removing information from public view offends me.
Joho the Blog jumps in on the issue of copyright as property. He says, "Creators of creative works do not own their works the way land owners own their land."
Here's a slightly different example of reuse of information. Wired News has an article on the fantasy football industry. Fantasy football leagues are dependent on the NFL, but forms a significant industry with a range of companies. While it's not the same as fair use, I think it bears enough similarity to be worth thinking about.
[Updated 6:09 PM] The House of Representatives voted 400-21 to block the FCC from lifting the television ownership cap. We haven't won yet. Simillar legislation must also survive the Senate and the President's threatened veto. it's also worth noting that the ownership cap was probably the least important of the restrictions the FCC did away with. The restrictions on crossownership are far more significant. See the Slashdot discussion.
update 6:09 PM: Doc Searls has put together a good collection of information and interpretation on this, including quotes from the Times article and William Safire's column.
Slashdot has an interview with Michael O'Leary, a computer crime lawyer at the Department of Justice. It gives a taste of what prosecutors think about copyright infringement.
A Copyfighter's Musings points to a paper claiming that online music distribution is the source of the recent decline in CD sales. I'm still not sure why anyone who isn't a record company should be particularly upset. To the extent that the Internet is a superior music distribution medium, it should replace CDs. I'm not trying to trivialize copyright infringement, but I think infringement is unrelated to the change in media.
I have doubts about the paper as well. The study dismisses a correlation between a decline in radio listening and the decline in album sales. I'm not sure what conclusion should be drawn, but I suspect it deserves more attention.
Sandy Starr responds to "'Pro-gumbo': culture as anarchy" by Siva Vaidhyanathan. I can't get over the sense that aside from alarm over the word "anarchy," Starr actually agrees with Vaidhyanathan. Both of them support reuse as a component of creation. It seems to me that Starr is getting hung up on vocabulary rather than the substance of what Vaidhyanathan is saying. (from Sivacracy.net)
David McGowan has written "From Social Friction to Social Meaning: What Expressive Uses of Code Tell Us About Free Speech" (RTF). Although the focus is on free speech issues rather than copyright, the issues it raises are relevant to copyright as well. His analysis of the reduced social friction of the Internet is worth consideration both because of the free speech issues he discusses and the copyright issues he alludes to. (from A Copyfighter's Musings)
Monday, August 11, 2003
FurdLog has a good essay on why people think copyright is property. He points out that it gets back to each person's underlying values and that if we don't face our differences on that level, we are guaranteed to talk in circles. He also emphasizes the importance of showing the dependence on preexisting works to creative output in challenging the ownership of creative works.
[Updated 8/12 2:09 PM] The MPAA has a strategy for responding to copying movies on the Internet which is, at the very least, better than the record industry's. The MPAA is trying to convince people that copying movies is wrong. They are running ads to that effect on television and in movie theaters.
Update 8/12 2:09 PM: Dan Gillmor isn't having it. His response is, "The cartel wants us to respect copyrights. Fine. But when will the cartel respect our rights, and the public good, as well?"
Annalee Newitz brags about infringing on copyright. The article is something of a rant, but it got the attention of Politech, which has earned it various responses. Her response is somewhat more sane than her original article.
The Motley Fool is pessimistic about legal online music. The article uses Apple's success as a launching point to talk about the underperformance of online music in general.
[updated 8/15 9:27 PM] Robert Cringely has a fascinating approach to online music distribution. Snapster is his proposed company that would put most of its money into purchasing CDs. Owners of the company would be permitted to access the CDs by downloading them. Ownership is public, so anyone can buy stock in the company and then gain the right to download music from the company.
This proposal is either crazy or brilliant. I'm not sure what I think of it. I'm planning to do a comparative analysis of different proposals on music distribution on the Internet, and I fear I have to add this one to the list. Slashdot has its own analysis.
Update 5:14: Cringely has come up with a revised version to overcome the weaknesses of the first version. I'm not sure if this is really any better, but I hesitate to comment without thinking it through more fully than I have so far.
Update 8/12 6:56 PM: A Copyfighter's Musings is wondering about the applicability of American Geophysical Union v. Texaco to Cringely's proposal. Texaco was photocopying and internally distributing copies of a magazine. The appeals court ruled that this was copyright infringement and ordered Texaco to license the copies of the magazine from the publishers. Weird that this strikes me as obvious infringement in a way that online file sharing does not. (I've also corrected the spelling of "Cringely".)
Update 8/15 9:27 PM: A Copyfighter's Musings things the revised version isn't any better, since it still runs afoul of the Record Rental Amendment of 1984, which makes it illegal to rent sound recordings. Stupid law anyways.
[Updated 8/15 9:13 PM] Another story from the limits of blurring of information and property: Games * Design * Art * Culture has details on a mock trial that centers on whether items in an online game qualify as property. If your online character is damaged by a hacker, is the hacker committing a property crime?
Update 8/14 3:21 PM: GrepLaw has an article on the results of the mock trial. While no verdict was reached because of uncertainty over the hacking, there was a real economic loss as a result of the hacking. On a later post on Ed Castronova's site, he points out that in Korea, this sort of thing has moved from theory to practice.
Update 8/15 9:13 PM: GrepLaw has an interview with Edward Castronova. Fascinating thoughts about economics and online worlds.
Copyright exists because of movable type. The Gutenberg Bible, the first book published using movable type, is now online. The Harry Ranson Humanities Research Center at the University of Texas at Austin has scanned its copy of the Gutenberg Bible and placed the images online. I think this is a fascinating historical artifact, a reminder of where we've come from to be kept in mind during all discussions of the reproduction of information.
I'm also fascinated by the statement at the bottom of the pages that the Ransom Center has placed online. "Further reproduction of any of the Gutenberg Bible images without the written consent of the Ransom Center is prohibited." In other words, there is no copyright in the text of the Gutenberg Bible, but copyright in these images of the Gutenberg Bible belongs to the Ransom Center.
I have mixed feelings about this. On the one hand, claiming copyright in anything associated with a work that predates copyright itself seems absurd. On the other hand, if the Ransom Center would not have placed these images online without copyright protection to justify the expense of creating the images, then copyright is doing what it was intended to do. Maybe this is the sort of compromise that copyright law is designed to produce. (from saxikath)
The New York Times has another example of creative reuse of existing works (cache). Free Speech For Sale reuses existing advertising in a critique of consumer culture. Like other reuses, the impact of Free Speech For Sale is directly dependent on recognition of the original sources and could not exist without the reuse of existing materials.
Sunday, August 10, 2003
Friday night I saw the play Breath of Kings. This is yet another artistic work which owes its existence to the public domain. Breath of Kings is a condensed version of seven of Shakespeare's plays. The play relies on the texts of Richard II, Henry IV Parts 1 and 2, Henry V, and Henry VI Parts 1, 2, and 3 to create a character study of the four kings. Without the use of Shakespeare's plays, this play would not exist. While it is true that someone could have written a play about these four kings without using Shakespeare's texts, that telling would not have the power of his writing and the resonances that these quoted scenes draw from the original plays. Conversely, if the theater company had chosen to perform only one of the original plays, that performance could not demonstrate the interplay between the themes and characters of the plays. Breath of Kings is something new that depends on things which already exist. Modern copyright law prevents this sort of creativity and it isn't clear that anyone benefits from that loss.