Alice In Public Domainland; Just Because Something Is Free And Open Doesn't Mean You Can't Make Money Off Of It

from the thank-you-public-domain dept

Back in December, we wrote about a submission from someone talking about the new Sherlock Holmes movie, and how it was possible because of the public domain. The truth turned out to be more complicated, but perhaps a better (and more accurate) example of the same point is the new Alice in Wonderland film. There have been a bunch of different movies based on the famous Lewis Carroll book, which has been in the public domain for quite some time.

Michael Weinberg does an excellent job highlighting how the various Alices demonstrate that those of us who support a stronger public domain aren't doing so because we think everything "must be free" or, to quote RIAA boss Mitch Bainwol's insulting falsehood, that we're "against those who actually create the intellectual property." Instead, as the various Alices show, the public domain has freed up tremendous creativity, while still allowing content creators to make plenty of money:

Each of these versions are inspired by the original Alice's Adventures in Wonderland. Each was made with commercial motives in mind, not some urge to set information free (and generally made a lot of money for their creators to boot). Each, at least according to the descriptions in the Times, is bizarre. However what is most striking is that each is bizarre in a way that was probably unanticipated by Alice's original author.

Even though they are strikingly different in almost every imaginable way, we can understand them to be related through that original story. Beyond that, they are stronger works because we understand them in the context of a shared cultural touchstone. They aren't all just freaky movies about some girl and a rabbit. They are Alice in Wonderland stories. That changes how we watch them, think about them, and talk about them.

One of the reasons that the creators of these many versions (who, again, didn't do it for free -- they made the movies to make money) felt free to be as strange as they wanted was because they did not need permission to create their version of Alice. They could take the original story, freak it up however they wanted, and create something new. Creators are better off because they had a way to link a new story to something that people understood (and probably made more money in the process). The public is better off because they can choose between a number of freaky Alice in Wonderlands, or even make their own. Even Alice is better off because she lives on as a cartoon, a little girl, a warrior princess, and whatever else people can dream up for her.

And, of course, this is the original story behind so many classic Disney films as well -- but, Disney has too often focused on then locking up the content that it copied from the public domain.

But the point raised here is an important one. No one is saying that everything must be free and open, and that content creators shouldn't make money. Obviously (to most, but not all, apparently) we've been talking about ways to better make money while also encouraging more widespread access and creativity. Getting away from strict copyright protections is not anti-content creator at all. It's very much pro-creativity. And, as we can see from all the new versions of movies about Alice in Wonderland, even Hollywood knows that the public domain doesn't mean no one makes money.

Filed Under: alice in wonderland, free, movies, profit, public domain

Copyright Is An Exception To The Public Domain

from the a-manifesto dept

A bunch of folks have been sending in this wonderful Public Domain Manifesto, put together by Communia. It's a wonderful read, highlighting the importance and value of the public domain, and putting forth a series of general principles which appear to make a lot of sense. It also discusses other aspects of related issues, such as the importance of individuals choosing to not use copyright, as well as the value of fair use and fair dealing. The point is both to highlight how important the public domain is to a vital thriving culture, and also to point out how the public domain has been steadily eroded over the last few decades. A key point is found in the first principle, and it's to remind everyone that copyright is an exception to the public domain, not the other way around:

The Public Domain is the rule, copyright protection is the exception. Since copyright protection is granted only with respect to original forms of expression, the vast majority of data, information and ideas produced worldwide at any given time belongs to the Public Domain. In addition to information that is not eligible for protection, the Public Domain is enlarged every year by works whose term of protection expires. The combined application of the requirements for protection and the limited duration of the copyright protection contribute to the wealth of the Public Domain so as to ensure access to our shared culture and knowledge.

Unfortunately, it's rarely thought about like this. Instead, most people consider copyright to be the rule, and things like the public domain and fair use to be exceptions. This is a problem, and it impacts how people view, understand and respond to things like copyright and the public domain itself.

To be honest, I have no idea how useful something like this manifesto really will be. Very few politicians seem to understand or care about the public domain and its importance. The manifesto might not have much of an impact on its own, but as a general set of principles for people to understand and gather behind it does seem like a good thing.

Filed Under: copyright, fair use, manifesto, public domain

NY Times Takes Up The Case Of Sherlock Holmes And The Lost Public Domain... But Gets It Wrong

from the we're-missing-some-clues-here dept

You may recall that last month we had an interesting discussion here over whether or not Sherlock Holmes was in the public domain. The answer was not entirely clear, because you get different answers from different people. However, it looks like the NY Times is on the case, and has a an article looking into the ownership of Sir Arthur Conan Doyle's creation. Unfortunately, I believe the NY Times gets it wrong.

While the article does detail the amazingly convoluted history over who owned the copyrights (and the various disputes associated with those rights), it gets a bunch of things wrong and (oddly) never seems to talk to any copyright lawyers. While the article does note that Holmes is public domain in the UK, it makes a blanket statement that Holmes is still covered by copyright in the US:

Mr. Lellenberg said that Sherlock Holmes remains under copyright protection in the United States through 2023, and that any new properties involving the detective "definitely should" be licensed by the Conan Doyle estate.

Lellenberg would say that, because Lellenberg is the literary agent for the Arthur Conan Doyle estate, and wants you to believe that. But, as we discussed last time, it's not true. All of the Sherlock Holmes books except one have now entered the public domain. And, yes, this creates quite a mess. But, in theory, anyone who created a work based solely on the public domain works, and which is not based on or derived from that last work, should, in fact, be legit without a license. That doesn't mean that Lellenberg (or some of the others who claim rights over Holmes) wouldn't sue, but it's not correct to claim that Holmes is still completely covered by copyright. The fact that the vast majority of his books are very much in the public domain is a rather important fact -- and totally ignored by the NY Times article.

Filed Under: copyright, ny times, public domain, sherlock holmes

CBS Would Rather Kill Off Classic Jack Benny Video Footage Than Let Fans Rescue And Digitize It

from the killing-culture dept

In the past, we've seen time and time again how copyright has been used to lock up culture and make it inaccessible. At times this is literally destroying culture, as content is left on degrading media, and those who can preserve it are blocked from doing so. The latest example of this, as sent in by an anonymous reader, involves the famous comedian Jack Benny. Apparently, a bunch of Jack Benny fans have been seeking the right to digitize old audio/video footage of Benny from CBS in order to preserve it. But, in a short-sighted decision, CBS has instead decided to lock up the content and let it disintegrate away (literally):

Late last week the International Jack Benny Fan Club got some very bad news: rather than allow the club with the Benny family's enthusiastic blessing to digitally preserve some unreleased public domain Benny show masters that CBS has in its possession, the network is giving a thumbs down to the idea -- thus sealing these shows' fate so they will never be seen again. In effect, it's a bullet through the head of this body of Benny work. And here is the most frustrating tidbit for comedy fans and those who study comedy: the Fan Club offered to do the preservation at no cost to CBS.

Yes, some of this content is public domain. Of course, that doesn't mean anyone has a right to access it, but it is rather ridiculous that CBS won't even bother to release the public domain material.

Update: In the comments, Ben pointed to this response which claims that there is more to this story, and that CBS just didn't want to give the content out to this particular fan group. I still don't quite understand what the problem is with that fan group, and why CBS won't allow it, but it gives a bit more perspective on the story.

Filed Under: archiving, copyright, jack benny, public domain, video
Companies: cbs

Tomorrow Is National Book Burning Day; Thank Your Friendly Entertainment Industry Lobbyists

from the burn-baby-burn dept

January 1st of each year should be National Public Domain Day, when many different creative works enter the public domain, where they can be made useful. In years past, it was a regular occurrence as tons of creative works went into the public domain each year. Often this was by choice on the part of the copyright holder. That's because copyright used to have a renewal requirement, and the vast majority of copyright holders found little reason to renew their copyright. In 1958-59, only 7% of book copyright holders chose to renew their copyrights, meaning that 93% of books that could have been covered by copyright were allowed to enter the public domain. The small number that did have their copyrights renewed were (not surprisingly) the books that were still huge commercial successes, whose authors and publishers wished to retain their monopoly rights.

But a change happened in 1976 in the US, with the adoption of a new Copyright Act that not only took away the renewal setup, but also made very lengthy copyrights automatic on works. Add to that continued copyright extension at the urging of the entertainment industry lobbyists, and we haven't had an actual Public Domain Day in ages -- and many of us may never see another one in our lifetimes. Considering the incredible value that the public domain has on our culture, this is a huge culture killer.

James Boyle is noting that, assuming he would have renewed his copyright, tomorrow is the day that Ray Bradbury's Farenheit 451 would have gone into the public domain under the law as it was before 1976. But now it won't be. Instead of the "book burning" found in that book, we've created a different kind of book burning. Thanks to lawyers, lobbyists and politicians, we've locked up a massive number of works that should be available for all, and the vast majority of which are available for none.

Unlike Fahrenheit 451, the vast majority of the culture swept into this 20th century black hole, was not commercially available and, in most cases, the authors are unknown. The works are locked up -- with no benefit to anyone -- and no one has the key that would unlock them. We have cut ourselves off from our own culture, left it to molder -- and in the case of nitrate film, literally disintegrate -- with no benefit to anyone. The works may not be physically destroyed -- although many of them are; disappearing, disintegrating, or simply getting lost in the vastly long period of copyright to which we have relegated them. But for the vast majority of works and the vast majority of citizens who do not have access to one of our great libraries, they are gone as thoroughly as if we had piled up the culture of the 20th century and simply set fire to it; and all this right at the moment when we could have used the Internet vastly to expand the scope of cultural access. Bradbury's firemen at least set fire to their own culture out of deep ideological commitment, vile though it may have been. We have set fire to our cultural record for no reason; even if we had wanted retrospectively to enrich the tiny number of beneficiaries whose work keeps commercial value beyond 56 years, we could have done so without these effects. The ironies are almost too painful to contemplate.

And, of course, it's not just Bradbury's book that is still locked up. Among the many things that would have/should have gone into the public domain tomorrow are Marilyn Monroe's Playboy cover, JD Salinger's Nine Stories and Ian Fleming's first James Bond novel, Casino Royale. But, again, it's not these works that we should really be mourning. It's the other works that no one really has access to any more. What a shame.

Filed Under: copyright, public domain, ray bradbury

Elementary My Dear Watson....It's Called The Public Domain... Or Is It?

from the the-case-of-the-missing-public-domain dept

Fletch writes "Here's an interesting little article on why Sherlock Holmes remains so popular. Of course it happens to come right before the new movie opens and I am just sure it is pure journalism even though CNN and Warner are owned by the same company. Though I do find it rather odd that they don't mention a small part of the reason why Holmes is still so popular is that he is in the public domain and new and varied stories are created about him daily. Yes, he has always been a widely loved fictional character but there are a great many characters with fan bases. Holmes has stretched his by being used in almost all genres and having been written by some of the most popular authors even today. People like Stephen King and Neil Gaiman have written Holmes short stories and will continue to because of his public domain status. Even TV shows have gotten into the act with House M.D. which is a thinly veiled Holmes knock off. I find it odd that the same companies who decry the public domain are more then happy to use it when it suits them."

Definitely an interesting point from Fletch, but there is some dispute over the state of Sherlock Holmes' copyright status. While the character is in the public domain in some countries, there's still at least one book in the US covered by copyright, The Case Book, and the legal representative of the estate of Sir Arthur Conan Doyle seems to suggest that this means the character itself is protected by copyright until 2023, though that doesn't seem correct to me. My understanding of other characters that have gone into the public domain is that when their first works enter the public domain, the characters themselves enter the public domain -- but only the aspects of their characters originally covered by copyright that were included in those works.

Of course, this is made even more complex because it's still something of an open question as to what, exactly, about a character is covered by copyright. It used to be believed that the characters themselves were not covered by copyright, since it was only the expression, not the "idea" that was covered. But, a variety of court rulings in the US have ruled in favor of the claim that characters themselves can be covered by copyright -- leading to highly questionable legal results like the recent banning of a book using an updated version of Holden Caufield, the protagonist of JD Salinger's Catcher in the Rye.

Not surprisingly, the estate who owns the copyrights tries to present the situation as saying that all uses require a license. But, then again, it's not like they're going to tell you what's in the public domain when it's in their best interest to claim that nothing is. Either way, it appears that the initial claim concerning the public domain isn't quite the case -- and I would bet that the studio that made this latest movie paid for a license to avoid a legal fight. Why they should have to -- especially given the fact that when the content was written there was no way for it still to be protected today under copyright law -- is a separate (but rather important) question.

Filed Under: public domain, sherlock holmes, trademark

Canadian Ebook Store Offers 'Free' Public Domain Ebooks -- Claims Copyright Says You Can Only Make 1 Copy

from the not-this-again dept

Brendan writes "Chapters/Indigo, the dominant book retailer in Canada, just recently launched their eBook store, thinly disguised as an independent 3rd party called ShortCovers. Both companies are children of the parent company Indigo Books & Music Inc.

The fact that they have launched an eBook program is not a problem. It's great, in fact. I'd like to see more action in this space, and anything to help people read more is a step in the right direction. The problem I have is with how they've done it.

When announcing the service on Monday, the company trumpeted loudly the offer of "FREE eBook downloads!" in a mass email and on the main Chapters page. Can you guess what all the eBooks offered for free have in common? That's right, they're almost all public domain works. They do list the publisher as "Gutenberg" for all the PD books, but do they explain what that means? Do they inform the user that these are public domain works? Do they include a link to Gutenberg.org, where any user can download these books in plain texts to use however they want? No, of course not.

Instead, they wrap the books up in their tight little DRM package. Each page (according to their idea of a page) loads painfully in a flash frame and within the text of the book is non-selectable. And most are not available as downloads (as they are on Gutenberg).

The worst offense? That dangerous little line at the bottom of each page of each book: "(C) All Rights Reserved All copyright ownership rights relating to this content are specifically and expressly reserved by the owner thereof and are marked © by the owner of this content, 2009." An interesting claim, to be sure. What am I to do with this book, ShortCovers?

"All Rights Reserved. You are free to make one (1) copy of this work for non-commercial purposes only, provided you abide by the following:
* For any reuse or distribution, you must make clear to others the license terms of this work. The best way to do this is with a link to this web page.
* Any of the above conditions can be waived if you get permission from the copyright holder.
* Nothing in this license impairs or restricts the author's moral rights."

I can make one (1) copy? Wow! I better use it carefully."

This isn't the first time we've seen bookstores DRM up and claim copyright over public domain works. The DRM stuff is dumb, but understandable, since they just want to have one system and often seem to choose an anti-consumer one. But telling people that they are only allowed to make one copy of a public domain work and putting a © sign on it is pretty ridiculous.

Filed Under: copyright, ebooks, public domain
Companies: chapters/indigo, shortcovers

Does The White House Have Any Legal Right To Demand No Modifications To Its Photos?

from the doesn't-appear-that-way dept

You may recall earlier this year that there was a fair bit of controversy when the White House started putting photos up on Flickr. Or, rather, there was controversy over the licensing. Everyone thought it was great that the White House would have its own Flickr channel and constantly post photos -- but since Flickr only had certain licensing options that you could put on a photo, there was a problem. Even though the White House chose a Creative Commons Attribution license at the time, that was still too much. Government documents are not covered by copyright, and the photos clearly should be public domain. After a bit of back-and-forth, Flickr created a special public domain license so the White House could properly designate the photos.

And yet... it appears that the White House is now trying to claw back some rights over these photos that it just doesn't have. Tim Lee points out that along with these officials photos is a licensing claim that goes well beyond the public domain, stating:

This official White House photograph is being made available only for publication by news organizations and/or for personal use printing by the subject(s) of the photograph. The photograph may not be manipulated in any way and may not be used in commercial or political materials, advertisements, emails, products, promotions that in any way suggests approval or endorsement of the President, the First Family, or the White House.

The problem is the White House has no right to say that you can't manipulate the photo, since the photo is public domain. It's really unfortunate that, once again, we're seeing how little people seem to understand (or value) the public domain.

Filed Under: obama, photos, public domain, white house

YouTube Taking Down Public Domain Works?

from the make-it-stop dept

In the past couple of days I've received emails from two separate people who found that public domain material they put on YouTube was taken down to companies claiming ownership of the work. In both cases, the stories seem pretty ridiculous, and for all the complaining that copyright holders do about how awful it is that they need to "police" their own content on YouTube, it seems like those who are getting hurt are people who are putting up public domain material and getting shut down -- often with little recourse.

The first story comes to us from two self-described "hippies," Haint and Littia, who had put up a video showing some of Haint's works, and used as background music a song by a group called the Psalters, who put their entire album into the public domain so that anyone could do what they wanted with it -- such as using it for background music in a video. However, music licensing company Rumblefish, supposedly uploaded its catalog into YouTube's content ID system -- and apparently (and I'm still trying to figure out how, because no one seems to have a good explanation), the Psalters song is somehow in Rumblefish's catalog. Hence, YouTube took down the video. Apparently others have also been finding their perfectly legal and licensed content taken down thanks to Rumblefish as well, and were told that they needed to call and get Rumblefish's permission to get the content back up.

Haint and Littia note that they can't issue a counternotice, because Rumblefish never sent a DMCA notice which they can counter (Update: to clarify, as explained in the next sentence, they can dispute, but that's slightly different than countering the DMCA notice, and comes with its own problems). The "takedown" was triggered by the content ID match, which still makes things a bit tricky, since "disputing" such things could potentially lead to a lawsuit, so there's a bit of a chilling effect in disputing a content ID match. Poking a big company with a stick where they can turn around and file a lawsuit is a bit scary -- even if you know you're in the legal right.

While looking into that story, reader Stephen Pate sent over his own story of having his entire YouTube account suspended. He's not entirely sure why, but believes it has something to do with video he posted of the recent "crash on the moon." The video was taken directly from NASA's live broadcast, which NASA makes clear is not covered by copyright.

But... along came everyone's favorite news organization, the Associated Press, and claimed the video was their copyrighted material. Nice of them. Due to at least one other similar incident, Pate's entire account was shut down, and to make matters worse, this apparently happened at about the same time that YouTube switched emails to gmail logins, leading Google to claim that it can't match his email to the email of the account in question.

I'm sure Google and YouTube are trying their best, within the confines of copyright law and various lawsuits, to handle such situations, but it seems like things are a mess -- and more and more users are finding that even if they have what appears to be perfectly legal content, they may face takedowns and even loss of their entire account, with limited avenues for recourse.

Filed Under: content id, public domain, takedowns
Companies: associated press, google, rumblefish

FBI Investigation Into Programmer For Freeing The Public Domain

from the an-exploit? dept

A bunch of folks have sent over the incredible story of how the FBI investigated well-known programmer Aaron Swartz, after discovering that he had installed a perl script on a computer at the 7th U.S. Circuit Court of Appeals library in Chicago, to cycle through PACER documents and upload them to an Amazon S3 account. Basically (as we've discussed in the past), court documents -- which are in the public domain -- are mostly locked up in the gov't's PACER system, which costs $0.08/page. However, since the documents are public domain, once you get them, you're free to do what you want with them. The Government Printing Office started an experiment last year, offering free access to PACER in certain libraries. Swartz just went to one and then installed his script to cycle through and upload those documents. The library's IT staff eventually noticed the issue (it took a few weeks) and alerted the FBI who began an investigation of Aaron, after Amazon handed over his info. While you can sorta understand why the FBI might look into why someone had installed a program on a court library computer, once it became clear that it was only accessing public domain documents, it seems pretty silly to have continued onward -- including driving by his home and considering a stakeout.

Filed Under: aaron swartz, fbi, investigation, pacer, public domain