Copyright Week: Our Lost Culture: What We Lose From Having Killed The Public Domain

from the we-need-more-public-domain dept

Yesterday, for Copyright Week, we wrote about transparency (and the lack of it in making copyright law). Today's issue is the public domain. While we just wrote about the lack of new works going into the public domain this year (as happens every year in the US), I've seen some copyright maximalists asking why this is a big deal, since all the works listed are readily available to purchase. This is uninformed in the extreme. In the past I've suggested that everyone interested in these issues owes it to themselves to read James Boyle's excellent book, The Public Domain, and I'll reiterate that recommendation now. Not surprisingly, the book is available online for free, though you can also purchase a copy, which is a worthwhile investment.

However, the damage that our missing public domain does to culture, society, learning and knowledge is quite incredible. Two years ago, we had mentioned some research done by Professor Paul Heald, in which he noticed an incredible thing about new books available from Amazon, showing that plenty of recent new books were available, but they fade quickly... until you hit 1922 (the basic limit, before which nearly all works are in the public domain). And then there's a sudden jump in the works available. See that big gap? All of that is lost culture thanks to our restrictive copyright laws, and the 1976 Act's ability to effectively kill off the public domain in the US. It should be seen as highly problematic that there are more books from the 1880s available for sale on Amazon than books from the 1980s.

Since then, Prof. Heald has continued to do even more research into the public domain and how it's distorted our cultural output and made much of it disappear, going beyond just books, but also exploring the impact on music. In an even more recent paper, a draft of a book chapter, Prof. Heald again dives into the issue of the way copyright law has distorted the availability of culture. He takes that earlier chart, and then decides to compare the "new books" available on Amazon with "used books" available on ABE books (the most popular marketplace for used books), and shows the market distortions clearly: In the paper, Heald also makes the case that the arguments against the public domain don't make much sense. The idea that works would be "under exploited" because they convey no ownership is simply not supported by the data -- as seen above. Similarly, the idea of works being "over exploited" because "anyone can do anything with them" seems just silly. It's a misunderstanding of the "tragedy of the commons," and there appears to be little empirical research to support the idea that there's any real problem here.

As a related matter, we've pointed in the past to research concerning copyright renewal rates, as found in William Patry's excellent book, Moral Panics and the Copyright Wars. Prior to the 1976 Act, copyright holders not only had to register, but they also had to "renew" their copyright after 28 years if they wanted a second 28 years of protection. And yet, in 1958 and 1959, very few works were actually renewed. In fact, as you can see, with the exception of movies, the vast majority of copyright holders in every other area were actually fine with letting their works fall into the public domain after 28 years. And yet, for reasons that are still unexplained, we now automatically give them life plus 70 additional years, even though all of the evidence suggests they neither need nor want that level of protection, and that such levels of protection appear to make their works significantly less available.

And none of that even touches on the nature of creativity, and the way in which amazing new works often borrow and build upon the works of those who came before them. The greatest works of Shakespeare were more or less copied from others -- but he was able to make them into something special. Why is that such a problem? If someone can make use of the work of someone else who failed to make it spectacular, and turn it into something amazing, why are we precluding that possibility? The entire purpose of copyright law in the US was supposed to be about enabling greater dissemination of learning and knowledge, and that's by increasing the public domain. Yet, instead, because of regulatory capture, and the ability of gatekeepers to hijack the process, we've created a copyright law that does exactly the opposite. It restricts the dissemination of knowledge, decreases cultural sharing and availability, and generally harms creators and their ability to build on culturally relevant works.

What defenders of restrictive copyrights often fail to recognize is that the public domain is what made culture culture. Culture is a shared concept, in which lots of people are all experiencing the same or similar things -- and making it their own as a part of that. We used to share stories, retell jokes, build on and change the works of others, and it was that shared effort that built culture and helped it spread. But copyright law has changed all that. Rather than a true cultural phenomenon, where culture is built up by the public in terms of what they create, share and build upon, we now have a situation where the gatekeepers decide what culture is, push it on everyone via broadcast means, and then tell us not to do anything about it... unless we pay exorbitant sums. That's a perverse understanding of how culture happens, and one that does not benefit creators or the public (often one and the same), but is hugely beneficial for a few gatekeepers.

For a robust creative community and culture, it is important to bring back a healthy respect for the public domain.

Filed Under: copyright, copyright week, culture, james boyle, paul heald, public domain, william patry

DailyDirt: Old Video Games Live On...

from the urls-we-dig-up dept

The first video games you could play at home were introduced in the late 1970s, and these games got really popular until the early-80s when the game market slumped. Fortunately, video game consoles took off again with the introduction of the Nintendo Entertainment System in 1985, and we've all seen how popular video games are nowadays. Here are just a few links on remembering those old 8-bit/16-bit games that kids today might not even recognize.

• Video games have been part of museum collections before, but the "Applied Design" exhibit allows visitors to play some of its collected games (9 out of 14) -- including titles like Pac Man, the Sims, and Katamari Damacy. This MoMA exhibition ends soon (Jan 20th), but you might be able to find some of these games in your basement, anyway. [url]
• How much do you think an Atari 2600 console would cost in today's dollars? If you guessed about $800, you've got a pretty good handle on the rate of inflation (and a good memory for what a gaming console cost in 1977). [url]
• Maybe you've played Super Mario Bros all the way to the end and solved it, so you can better appreciate how an algorithm attempts the same task. The LearnFun/PlayFun program doesn't actually solve the game, but it does play pretty well for a player that can't actually "see" the game sprites. [url]

If you'd like to read more awesome and interesting stuff, check out this unrelated (but not entirely random!) Techdirt post via StumbleUpon.

Filed Under: ai, algorithm, art, culture, game console, inflation, katamari damacy, moma, pac man, super mario bros, video games
Companies: atari, nintendo

Copyright As Censorship: Lawyers Tell Show Inspired By 'The Princess Bride' To Prepare To Die

from the copyright-is-many-things-none-of-them-logical dept

The Princess Bride remains quite the iconic book and movie for tons of people who grew up in the 1970s and 1980s (and, hopefully, other ages as well... but I can only speak from experience). A huge number of lines have lived on from that movie and become mainstays in popular culture. And like all sorts of great culture, it has inspired plenty of additional creativity around the original as well. A guy named Joe Brack created a one-man show called My Princess Bride, in which he intersperses events and stories from his own life with elements of the book and movie:

While Brack does snippets of re-enactments, he intersperses such scenes with commentary. For example, during a solo parody of the iconic swordfight between Inigo Montoya and the man in black, Brack explains some of the history behind the obscure names of fencers that are thrown around in the dialogue.

But there is also plenty of personal material in the show: At one point Brack talks about the death of his grandmother in 2012.

And, guess what? Just as the one man show was about to come back, someone stepped in with a cease and desist letter, saying that the show infringed. While Brack won't say who sent the cease and desist, there's a pretty short list of whom it might be.

Brack's partner in putting on the show, Matty Griffiths, says they had explored the copyright issues before putting on the show and were reasonably confident that it was fair use -- and it would appear that they have a very strong fair use argument here. But... because of the stupid way our fair use laws work, the only way to definitively know if it's fair use is to spend megabucks on a lawsuit. So, instead, this bit of creativity that people seemed to enjoy... has been shut down. While the two guys seem willing to test it, the theater where they were going to put on the show has bailed out, citing the potential liability.

Yet another bit of creativity completely stomped out thanks to copyright.

Not only that, but it's turning fans of the original into... not fans:

“I’m gutted,” Brack says. “The past two days have been so hard. And whenever I’ve been bummed out and sad, I watch ‘The Princess Bride,’ and I can’t even do that now.”

He owns three copies of the book, and he’s reversed them in his bookcase to hide the titles.

“It feels like I’ve lost a friend,” he says.

Isn't copyright supposed to inspire creativity, rather than stomp it out?

Filed Under: culture, fair use, inspiration, joe brack, my princess bride, one man show, the princess bride

Make Art Not Law

from the Permeance-vs.-Permission dept

Below are the images and text of a Pecha Kucha talk I gave in Champaign, IL. The Pecha Kucha format is 20 slides x 20 seconds per slide. Hopefully the video will be online within a few months.

You are an information portal. Information enters through your senses, like your ears and eyes, and exits through your expressions, like your voice, your drawing, your writing, and your movements.

In order for culture to stay alive, we have to be open, or permeable. According to Wikipedia, Permeance is "the degree to which a material admits a flow of matter or energy." We are the material through which information flows.

It’s through this flow that culture stays alive and we stay connected to each other. Ideas flow in, and they flow out, of each of us. Ideas change a little as they go along; this is known as evolution, progress, or innovation.

But thanks to Copyright, we live in a world where some information goes in, but cannot legally come out. Often I hear people engaged in creative pursuits ask, “Am I allowed to use this? I don’t want to get in trouble.”

In our Copyright regime, "trouble" may include lawsuits, huge fines, and even jail. "Trouble" means violence. "Trouble" has shut down many a creative enterprise. So the threat of “trouble” dictates our choices about what we express.

Copyright activates our internal censors. Internal censorship is the enemy of creativity; it halts expression before it can begin. The question, “am I allowed to use this?” indicates the asker has surrendered internal authority to lawyers, legislators, and corporations.

This phenomenon is called Permission Culture. Whenever we censor our expression, we close a little more and information flows a little less. The less information flows, the more it stagnates. This is known as chilling effects.

I have asked myself: did I ever consent to letting “Permission Culture” into my brain? Why am I complying with censorship? How much choice do I really have about what information goes in and comes out of me?

The answer is: I have some choice regarding what I expose myself to, and what I express, but not total control. I can choose whether to watch mainstream media, for example. And I can choose what information to pass along.

But to be in the world, and to be open, means all kinds of things can and do get in that are beyond my control. I don't get to choose what goes in based on its copyright status. In fact proprietary images and sounds are the most aggressively rammed into our heads. For example:

"Have a holly jolly Christmas, It's the best time of the year
"I don't know if there'll be snow, but have a cup of cheer
"Have a holly jolly Christmas, And when you walk down the street
"Say hello to friends you know and everyone you meet!"

I hate Christmas music. But because I live in the U.S., and need to leave the house even in the months of November and December, I can’t NOT hear it. It goes right through my earholes and into my brain, where it plays over and over ad nauseum.

Here are some of the corporations I could “get in trouble with” for sharing that song and clip in public. I wasn't consulted by them before having their so-called "intellectual property" blasted into my head as a child, so I didn't ask their permission to put it in my slide show.

Copyright is automatic and there’s no way to opt out. But you can add a license granting some of the permissions copyright automatically takes away. Creative Commons, the most widespread brand of license, allows its users to lift various restrictions of copyright one at a time.

The problem with licenses is that they’re based on copyright law. The same threat of violence behind copyright is behind alternative licenses too. Licenses actually reinforce the mechanism of copyright. Everyone still needs to seek permission - it's just that they get it a little more often.
Like copyright itself, licenses are often too complex for most people to understand. So licenses have the unfortunate effect of encouraging people to pay even MORE attention to copyright, which gives even more authority to that inner censor. And who let that censor into our heads in the first place?

Although I use Free licenses and would appreciate meaningful copyright reform, licenses and laws aren’t the solution. The solution is more and more people just ignoring copyright altogether. I want to be one of those people.

A few years ago I declared sovereignty over my own head. Freedom of Speech begins at home. Censorship and "trouble" still exist outside my head, and that's where they'll stay - OUTSIDE my head. I'm not going to assist bad laws and media corporations by setting up an outpost for them in my own mind.

I no longer favor or reject works based on their copyright status. Ideas aren’t good or bad because of what licenses people slap on them. I just relate to the ideas themselves now, not the laws surrounding them. And I try to express myself the same way.

Like millions of others who don’t give a rat’s ass about copyright, I hope you join me. Make Art, Not Law.

crossposted from ninapaley.com

Filed Under: copyright, culture, law, permission, permission society

Internet Archive Fire Shows Vulnerability Of The World's Online Memory

from the taking-things-for-granted dept

The Internet Archive is a jewel of the digital world:

The Internet Archive is a 501(c)(3) non-profit that was founded to build an Internet library. Its purposes include offering permanent access for researchers, historians, scholars, people with disabilities, and the general public to historical collections that exist in digital format.

Founded in 1996 and located in San Francisco, the Archive has been receiving data donations from Alexa Internet and others. In late 1999, the organization started to grow to include more well-rounded collections. Now the Internet Archive includes: texts, audio, moving images, and software as well as archived web pages in our collections, and provides specialized services for adaptive reading and information access for the blind and other persons with disabilities.

Here's the amazing scale of the project today:

The Internet Archive Wayback Machine contains almost 2 petabytes of data and is currently growing at a rate of 20 terabytes per month. This eclipses the amount of text contained in the world's largest libraries, including the Library of Congress.

The Internet Archive is the world's online memory, holding the only copies of many historic (and not-so-historic) Web pages that have long disappeared from the Web itself.

Bad news:

This morning at about 3:30 a.m. a fire started at the Internet Archive's San Francisco scanning center.

Good news:

no one was hurt and no data was lost. Our main building was not affected except for damage to one electrical run. This power issue caused us to lose power to some servers for a while.

Bad news:

Some physical materials were in the scanning center because they were being digitized, but most were in a separate locked room or in our physical archive and were not lost. Of those materials we did unfortunately lose, about half had already been digitized. We are working with our library partners now to assess.

That loss is unfortunate, but imagine if the fire had been in the main server room holding the Internet Archive's 2 petabytes of data. Wisely, the project has placed copies at other locations:

We have copies of the data in the Internet Archive in multiple locations, so even if our main building had been involved in the fire we still would not have lost the amazing content we have all worked so hard to collect.

That's good to know, but it seems rather foolish for the world to depend on the Internet Archive always being able to keep all its copies up to date, especially as the quantity of data that it stores continues to rise. This digital library is so important in historical and cultural terms: surely it's time to start mirroring the Internet Archive around the world in many locations, with direct and sustained support from multiple governments. They can also help provide the Internet Archive with a wider, more international range of content, to make an even more representative store of the world's digital activity.

Unfortunately, that's not likely to happen anytime soon, as people seem happy to take for granted the amazing work of Brewster Kahle and his team. The next best thing would be to donate so that they can continue with their indispensable project -- and perhaps create a few more backup copies.

Follow me @glynmoody on Twitter or identi.ca, and +glynmoody on Google+

Filed Under: culture, fire, history, internet archive, preservation
Companies: internet archive

Right2Remix: A Campaign For European Copyright Reform

from the worth-trying dept

Back in February we reported on a welcome move by the Dutch government to modify its copyright law so that creative remixes are permitted. A new initiative called right2remix.org wants to make that a Europe-wide change:

The initiative right2remix.org calls for European lawmakers to adopt remix rights in European copyright legislation. On this portal, the German civil rights organisation Digitale Gesellschaft e. V., who launched the initiative, explains: "We live in an age of remix. Creativity and culture have always drawn from previous works, but with the Internet and digital technologies, the creative re-use of works has been taken to a whole new level. More people are able to edit and share a greater range of works than ever before."

The campaign has a short manifesto and a petition, as well as a suggested route to achieving its goals. This would be to add additional exceptions, including the right to remix, to Article 5 of the EU Copyright Directive, which already lists the possible exceptions and limitations to copyright. EU countries could then modify their national laws to legalize many everyday online activities that currently infringe copyrights. Here are couple of right2remix.org' s other suggestions:

Extended quotation rights: Currently, quotation rights are generally very narrowly defined, and do not extend to all types of works, excluding, for example, movies. Furthermore, ancillary copyrights often prevent the quotation of existing works, as is the case with samples of musical works, for instance. A reform of quotation rights is overdue and needs to account for different types of works and quotations.

Redefine the boundaries of free usage: Creators should be permitted to use works as an inspiration, as long as the borrowings are secondary to the individuality of the new work. However, the remix, by definition, preserves at least part of the originality of the quoted work, though this does not mean that the remix is less original. The originality of a work should be assessed independently from the question whether the inspirational works are still recognizable. Particularly in musical works, we call for the legalization of samples, which in case of commercial use could be compensated using compulsory licensing models.

Those might seem overly-bold objectives, but the main driving force behind right2remix.org includes some of the people that led the European revolt against ACTA last year, and look what happened there....

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: copyright, culture, europe, remix

A Tale Of Two Hit Songs Inspired By Past Hits... And The Very Different Way In Which Copyright Holders Reacted

from the one-good,-one-bad dept

There were two very interesting stories last week concerning hit songs allegedly "inspired" by hits from previous decades, but the stories are quite different. First up, was the news that Robin Thicke (along with Pharrell Williams and Clifford Harris Jr.), whose song Blurred Lines appears to be the undisputed hit of the summer this year (with some controversy over the content), had filed for a declaratory judgment against Marvin Gaye's family and Bridgeport Music, after those two claimed that Blurred Lines infringes on Marvin Gaye's Got to Give it Up and Funkadelic's Sexy Ways. You can listen to them below:



Frankly, I can hear the similarities between Blurred Lines and Got to Give it Up (that bass line is pretty damn similar), but, as the filing for declaratory judgment notes, having a similar "feel" or "sound" is not copyright infringement (hello idea/expression dichotomy). As they note, Gaye's heirs appear to be "claiming ownership of an entire genre, as opposed to a specific work."

As for the Funkadelic song, I don't hear it at all. But... this is Bridgeport, we're dealing with here, the company that George Clinton continues to claim forged documents to gain control over his copyrights, and which is without a doubt the single most aggressive of the sample trolls out there, going after anyone who uses even the tiniest snippet of some of the copyrights it controls (even if they were obtained by dubious means). Bridgeport has gone after musicians even when they distorted tiny snippets of music so much that the average listener couldn't recognize the original. So perhaps it claims something similar is happening here.

Either way, the threats came in and Thicke, Williams and Harris decided to strike first with a declaratory judgment. Good for them, but shame on Bridgeport and Marvin Gaye's heirs. Especially with Marvin Gaye, while the songs may have a similar feel, they're different songs. They're both enjoyable in their own ways, and the success of one doesn't take away from the other. In fact, it seems likely that the massive success of Blurred Lines is driving more interest in Got to Give it Up and other Marvin Gaye songs.

However, compare that dispute to another, very similar, dispute. It appears that there was some controversy over the fact that the band One Direction's latest song, entitled Best Song Ever (I'd put a joke here, but it sorta speaks for itself), is conspicuously similar to The Who's classic song Baba O'Riley. Again, to the comparisons:

Again, here, the similarities are pretty obvious and unmistakable. However, unlike Bridgeport or Marvin Gaye, The Who's Pete Townshend has said that he loves the fact that others are inspired by his works and has no issue with it at all. He was specifically asked if he was going to take legal action against One Direction, and pointed out that so much great music involves copying and building on the works of others:

No! I like the single. I like One Direction. The chords I used and the chords they used are the same three chords we've all been using in basic pop music since Buddy Holly, Eddie Cochran and Chuck Berry made it clear that fancy chords don't mean great music – not always. I'm still writing songs that sound like Baba O'Riley – or I'm trying to!. It's a part of my life and a part of pop's lineage. One Direction are in my business, with a million fans, and I'm happy to think they may have been influenced a little bit by The Who. I'm just relieved they're all not wearing boiler suits and Doc Martens, or Union Jack jackets. The funniest thing is that in Canada this year I met with Randy Bachman once the leader of GUESS WHO who told me that he not only copied Baba O Riley for their hit You Ain't Seen Nothing Yet, but he even called his band after us. Why would I not be happy about this kind of tribute?

What a fantastic response in almost every way. And what a stark contrast to the heirs of Marvin Gaye and so many other copyright holders who seem to freak out when others are inspired by their works. Now, if we could just get Townshend to stop blaming Apple for the problems of the recording industry...

Filed Under: best song ever, blurred lines, copyright, culture, inspiration, marvin gaye, music, one dimension, pete townshend, pharell williams, robin thicke, the who
Companies: bridgeport

Extending The Spectrum Of Openness To Include The Moral Right To Share

from the now-there's-a-thought dept

Prefixing concepts with the epithet "open" has become something of a fashion over the last decade. Beginning with open source, we've had open content, open access, open data, open science, and open government to name but a few. Indeed, things have got to the point where "openwashing" -- the abuse of the term in order to jump on the openness bandwagon -- is a real problem. But a great post by David Eaves points out that the spectrum of openness actually extends well beyond the variants typically encountered in the West:

While sharing and copying technologies are disrupting some of the ways we understanding "content," when you visit a non-Western country like India, the spectrum of choices become broader. There is less timidity wrestling with questions like: should poor farmers pay inflated prices for patented genetically-engineered seeds? How long should patents be given for life-saving medicines that cost more than many make in a year? Should Indian universities spend millions on academic journals and articles? In the United States or other rich countries we may weigh both sides of these questions -- the rights of the owner vs. the moral rights of the user -- but there's no question people elsewhere, such as in India, weigh them different given the questions of life and death or of poverty and development.

Consequently, conversations about open knowledge outside the supposedly settled lands of the "rich" often stretch beyond permission-based "fair use" and "creative commons" approaches. There is a desire to explore potential moral rights to use "content" in addition to just property rights that may be granted under statutes.

He then goes on to write about the ideas of Sunil Abraham, founder and executive director of the Centre for Internet & Society (CIS) in India. Abraham has created an interesting representation showing the extended gamut of openness, which reaches from proprietary to counterfeiting and false attribution:

Eaves's post examines some of the details of Abraham's map:

Particularly interesting is Sunil's decision to include non-legal "permissions" such as ignoring the property holders rights in his spectrum of openness. He sees this as the position of the Pirate Party, which he suggests advocates that people should have the right to do what they want with intellectual property even if they don't have permission, with the exception, interestingly, of ignoring attribution.

This is something that several Techdirt posts have touched on before. One of the most telling facts about unauthorized sharing online is that people preserve attribution -- there's no attempt to hide who made the song or film. That's probably why survey after survey shows that sharing materials online increases their sales -- something that would be unlikely if attribution were stripped from files. Eaves notes that this aspect ties into a particularly hot topic at the moment -- surveillance:

To Sunil, the big dividing line is less about legal vs. illegal but around this issue of attribution. "This is the most exciting area because this (the non-attribution area) is where you escape surveillance," he declares.

"All the modern day regulation over IP is trying to pin an individual against their actions and then trying to attach responsibility so as to prosecute them," Sunil says. "All that is circumvented when you play with the attribution layer."

This matters a great deal for individuals and organizations trying to create counter power -- particularly against the state or large corporate interests. In this regard Sunil is actually linking the tools (or permissions) along the open spectrum to civil disobedience.

It's a fascinating piece that brings some fresh ideas to an area that has been steadily gaining in importance for some time. I hope that Abraham builds on these thoughts, and publishes some more extended and worked-out explorations of them -- ultimately, perhaps, as a book.

Follow me @glynmoody on Twitter or identi.ca, and on Google+

Filed Under: attribution, copyright, culture, developing world, openness, sharing, sunil abraham