Today at 1pm PT (4pm ET), we'll be doing a live streaming interview with Cole Stryker, the author of Hacking the Future: Privacy, Identity, and Anonymity on the Web. We've run a couple of excerpts from the book -- one about why anonymity matters, that many of you agreed with, and another about the dark web, which many of you did not agree with. Given that, it should be a fun discussion. If all goes according to plan (never a sure thing when you deal with technology), right around 1pm, we should have a video pop up beneath this text, so check back... If you happen to be reading this after, the full video will be immediately available for viewing.
As mentioned last month, the Techdirt Book Club book of the month was No Safe Harbor. On Wednesday, we're going to interview the editor of the book, Andrew Norton. Like last time, we're going to try to do it via Google Hangouts, so it'll be done over video and audio. Last time, however, we realized it was a bit awkward to try to take questions in real time, so this time we'd prefer that you submit questions ahead of time. We'll broadcast it live, have the recording up, and try to put the recording up as a podcast for those who want to download it that way. Also, tomorrow we'll be announcing the next book in our book club, so stay tuned...
As mentioned earlier this week, at 12:30pm PT/3:30pm ET today, we're hosting a live video chat with Rob Reid, the author of Year Zero, our Techdirt Book Club book of the month for July. Rob will be joining me at our offices, and we'll be broadcasting the conversation via Google Hangouts on Air. We'll be posting the embed beneath this text, so it should stream live if you're reading this while the conversation is ongoing. If you're here afterwards, the video should be replayable below.
If you have any questions that you'd like to ask Rob during this conversation, please tweet with the hashtag #yearzero. We will be monitoring that tweetstream and will try to take some questions from the audience.
This is the first time that we're doing something like this via a video stream, rather than a text chat. Please bear with us in case there are technical difficulties. It is very much an experiment, but hopefully provides a worthwhile experience.
As we announced a few weeks ago, the July Techdirt Book Club book is Year Zero written by Rob Reid and which comes out today, published by Random House. Rob will be joining us in a few weeks to talk about writing a comic sci-fi novel about the mess that is copyright law... but in the meantime, he's provided the following excerpt, which is Chapter 1. There is a "prologue" before this, which you can read here, or you can just watch this video, which more or less covers the prologue info:
As part of this, Rob and Random House have agreed to do another give away, this time just for Techdirt readers, which will go to five commenters on this post, based on your voting scores on the comments. We'll give one copy of the book each to the highest ranked "funny" and "insightful" comments, and then the three highest total scores other than the top ranked (so either funny or insightful). There are a few conditions: you have to be in the US or Canada. I know this sucks for those of you not in those places, but there's nothing we can do about it. Also, to win, we obviously have to be able to contact you, which means (a) you need to be logged in when you comment, so we can email you and (b) you have to respond to our email informing you of your win within 24 hours of our email. Also, you can't win twice -- if you score the highest in multiple categories, you get a prize in one and the others will go to the runners-up. We'll keep the voting open until Wednesday night and then tally the votes. So, get to work with your funny/insightful comments...
CHAPTER ONE: ASTLEY
Even if she'd realized that my visitors were aliens who had come to our office to initiate contact
with humanity, Barbara Ann would have resented their timing. Assistants at our law firm clearout at five-thirty, regardless -- and that was almost a minute ago.
"I don't have anyone scheduled," I said, when she called to grouse about the late arrival. "Who is it?"
"I don't know, Nick. They weren't announced."
"You mean they just sort of . . . turned up at your desk?" I stifled a sneeze as I said this. I'd been fighting a beast of a cold all week.
"Pretty much."
This was odd. Reception is two key-card-protected floors above us, and no one gets through
unaccompanied, much less unannounced. "What do they look like?" I asked.
"Strange."
"Lady Gaga strange?" Carter, Geller & Marks has some weird-looking clients, and Gaga flirts with the outer fringe, when she's really gussied up.
"No--kind of stranger than that. In a way. I mean, they look like they're from . . . maybe a couple of cults."
From what? "Which ones?"
"One definitely looks Catholic," Barbara Ann said. "Like a . . . priestess? And the other one
looks . . . kind of Talibanny. You know -- robes and stuff?"
"And they won't say where they're from?"
"They can't. They're deaf."
I was about to ask her to maybe try miming some information out of them, but thought better of it. The day was technically over. And like most of her peers, Barbara Ann has a French postal worker's sense of divine entitlement when it comes to her hours. This results from there being just one junior assistant for every four junior lawyers, which makes them monopoly providers of answered phones, FedEx runs, and other secretarial essentials to some truly desperate customers. So as usual, I caved. "Okay, send 'em in."
The first one through the door had dark eyes and a bushy beard. He wore a white robe, a black turban, and a diver's watch the size of a small bagel. Apart from the watch, he looked like the Hollywood ideal of a fatwa-shrieking cleric -- until I noticed a shock of bright red hair protruding from under his turban. This made him look faintly Irish, so I silently christened him O'Sama. His partner was dressed like a nun -- although in a tight habit that betrayed the curves of a lap dancer. She had a gorgeous tan and bright blue eyes and was young enough to get carded anywhere.
O'Sama gazed at me with a sort of childlike amazement, while the sister kept it cool. She tried to catch his eye -- but he kept right on staring. So she tapped him on the shoulder, pointing at her head. At this, they both stuck their fingers under their headdresses to adjust something. "Now we can hear," the nun announced, straightening out a big, medieval-looking crucifix that hung around her neck.
This odd statement aside, I thought I knew what was happening. My birthday had passed a few days back without a call from any of my older brothers. It would be typical of them to forget -- but even more typical of them to pretend to forget, and then ambush me with a wildly inappropriate birthday greeting at my stodgy New York law office. So I figured I had about two seconds before O'Sama started beatboxing and the nun began to strip. Since you never know when some partner's going to barge through your door, I almost begged them to leave. But then I remembered that I was probably getting canned soon anyway. So why not gun for YouTube glory, and capture the fun on my cellphone?
As I considered this, the nun fixed me with a solemn gaze. "Mr. Carter. We are visitors from a distant star."
That settled it. "Then I better record this for NASA." I reached across the desk for my iPhone.
"Not a chance." She extended a finger and the phone leapt from the desk and darted toward her. Then it stopped abruptly, emitted a bright green flash, and collapsed into a glittering pile of dust on the floor.
"What the . . . ?" I basically talk for a living, but this was all I could manage.
"We're camera shy." The nun retracted her finger as if sheathing a weapon. "And as I mentioned, we‘re also visitors from a distant star."
I nodded mutely. That iPhone trick had made a believer out of me.
"And we want you to represent us," O'Sama added. "The reputation of Carter, Geller & Marks extends to the farthest reaches of the universe."
The absurdity of this flipped me right back to thinking "prank" -- albeit one featuring some awesome sleight of hand. "Then you know I'll sue your asses if I don't get my iPhone back within the next two parsecs," I growled, trying to suppress the wimpy, nasal edge
that my cold had injected into my voice. I had no idea what a parsec was, but remembered the term from Star Wars.
"Oh, up your nose with a rubber hose," the nun hissed. As I was puzzling over this odd phrase, she pointed at the dust pile on the floor. It glowed green again, then erupted into a tornado-like form, complete with thunderbolts and lightning. This rose a few feet off the ground before reconstituting itself into my phone, which then resettled gently onto my desk. That refuted the prank theory nicely -- putting me right back into the alien-believer camp.
"Thank you very kindly," I said, determined not to annoy Xena Warrior Fingers ever, ever again.
"Don't mention it. Anyway, as my colleague was saying, the reputation of Carter, Geller &
Marks extends to the farthest corner of the universe, and we'd like to retain your services."
Now that I was buying the space alien bit, this hit me in a very different way. The farthest corner of the universe is a long way for fame to travel, even for assholes like us. I mean, global fame, sure -- to the extent that law firms specializing in copyright and patents actually get famous. We're the ones who almost got a country booted from the UN over its lax enforcement of DVD copyrights. We're even more renowned for our many jihads against the Internet. And we're downright notorious for virtually shutting down American automobile production over a patent claim that was simply preposterous. So yes, Earthly fame I was aware of. But I couldn't imagine why they'd be hearing about us way out on Zørkan 5, or wherever these two were from.
"So, what area of the law do you need help in?" I asked in a relaxed, almost bored tone. Feigning calm believably is a survival tactic that I perfected as the youngest of four boys (or of seven, if you count our cousins, who lived three doors down. I sure did). It made me boring to pick on -- and useless as a prank victim, because I'd treat the damnedest events and circumstances as being
mundane, and entirely expected. It had also helped me immensely as a lawyer (although by itself, it had not been enough to make me a successful one).
Sister Venus gave me a cagey look. "It's sort of . . . an intellectual property thing."
Today at 11am PT/2pm ET (and 8pm for Rick & Christian) we'll be hosting a live Q&A session with Rick Falkvinge, founder of the first Pirate Party and Christian Engstrom, the first Pirate Party member elected to the European Parliament. As mentioned this is part of the Techdirt Book Club series, and we are discussing their recently published book called The Case for Copyright Reform. The efforts of Christian and others are already having a big impact in the EU Parliament, with the EU Greens already adopting the Pirate Party's position on copyright. We'll be talking about the book, but I believe both Christian and Rick are open to talking about a wide variety of topics.
We mentioned this earlier in the month, but just wanted to pass on a reminder that the June "Techdirt Book Club" book is The Case for Copyright Reform, by Rick Falkvinge (founder of the first Pirate Party) and Christian Engstrom (Member of European Parliament). Both Christian and Rick will be joining us for an online discussion/Q&A on June 29th at 11am PT, and I'm sure it will be a spirited discussion. The book is, of course, available for free download at the link above if you haven't yet had a chance to read it.
Okay, folks at 1pm PT join us for a Q&A discussion with Patricia Aufderheide, co-author of Reclaiming Fair Use. We published a bunch of excerpts: here's the first excerpt, the second excerpt, the third excerpt and the fourth excerpt, so check them out if you haven't had a chance to read the book. And then join in and ask some questions or provide your own thoughts on the book.
Okay, I know it was just two days ago that we announced the Techdirt Book Club book for June (and, a reminder that tomorrow at 1pm PT/4pm ET, we'll be holding a Q&A with Patricia Aufderheide for the Techdirt Book Club book for May), but today we're "pre-announcing" the Techdirt Book Club book for July. And that's because if you want to get a free hard copy of the book, you can enter a giveaway starting today. You may remember, a few months back, Rob Reid (founder of Listen.com, among other things) got plenty of attention for his rather humorous talk about copyright math. And, earlier this week, we wrote about his op-ed for the WSJ concerning ways to compete with "free."
But none of that compares to Year Zero, Reid's new novel, which is being released on July 10th. It's all about aliens who go bankrupt after they realize they owe the record labels more money than exists in the universe, because they got hooked on our music, and shared that music with other aliens. Rob has released a video trailer as a teaser for the book, which is quite amusing:
I've had a chance to read the book, and I can say that it's awesome. Think Hitchhikers Guide to the Galaxy, but with copyright law driving a major plot line. A mainstream humorous sci-fi novel that uses the Berne Convention as a key plot point and tosses aside casual references to Larry Lessig and Fark? Yes. Count me in. And, unlike most novels that bring up copyright, this one gets the legal issues mostly right (there is one point where trademark and copyright get confused, but it's so minor, you'll let it slip).
Anyway, as we said, this will be the Book Club book for July, and we'll be doing some fun things with Rob to have him engage with everyone here—but, if you're lucky, there's a chance for you to get a physical copy of the book delivered a month before it's actually released. Rob has the details on his blog, but basically you have to let him know (via a comment on his blog, a tweet or a Facebook comment) what song you'd like to beam to the aliens. Thirty winners -- ten from the comments, ten from Twitter and ten from Facebook (though you can enter all three) -- will be chosen at random to get books. So, go ahead and beam some songs to aliens. And just hope the RIAA doesn't claim that you're "inducing" infringement by doing so...
First off, a reminder that this Friday, at 1pm PT (4pm ET), we'll be hosting a live Q&A concerning the Techdirt Book Club book for May, Reclaiming Fair Use by Patricia Aufderheide and Peter Jaszi. If you want to see the first excerpt, the second excerpt, the third excerpt and the fourth excerpt go check them out. Patricia will be joining us for the Q&A on Friday, so get your questions ready.
And, with that I wanted to introduce the June book, which is The Case for Copyright Reform, by Rick Falkvinge and Christian Engstrom. This time, I don't have to include an excerpt, because you can download the whole thing for free in a variety of different formats. Of course, you can also buy a physical copy if you'd like to.
And... then you can do whatever you want with it, as the authors have explicitly declared that they retain no copyright in the works, and you are free to do with it what you will. Just to whet your appetite, I'm still going to include a very brief excerpt of just the first few paragraphs, which highlights the key point of the book. Rick and Christian will be joining us for a (I expect, lively) chat at the end of the month as well. Anyway, here's the excerpt:
Today’s copyright legislation is out of balance, and out of tune with
the times. It has turned an entire generation of young people into
criminals in the eyes of the law, in a futile attempt at stopping technological development. Yet file sharing has continued to grow exponentially. Neither propaganda, fear tactics, nor ever harsher laws
have been able to stop the development.
It is impossible to enforce the ban against non-commercial file
sharing without infringing on fundamental human rights. As long
as there are ways for citizens to communicate in private, they will
be used to share copyrighted materials. The only way to even try to
limit file sharing is to remove the right to private communication.
In the last decade, this is the direction that copyright enforcement
legislation has moved in, under pressure from big business lobbyists who see their monopolies under threat. We need to reverse this
trend to safeguard fundamental rights.
At the same time, we want a society where culture flourishes,
and where artists and creative people have a chance to make a living
as cultural workers. Fortunately, there is no contradiction between
file sharing and culture. This is something we know from a decade’s
experience of massive file sharing on the Internet.
In the economic statistics, we can see that household spending
on culture and entertainment is slowly increasing year by year. If
we spend less money on buying CDs, we spend more on something
else, such as going to live concerts. This is great news for artists. An
artist will typically get 5-7% of the revenues from a CD, but 50%
of the revenues from a concert. The record companies lose out, but
this is only because they are no longer adding any value.
It may well be that it will become more difficult to make money
within some parts of the cultural sector, but if so, it will become
easier in some others – including new ones, that we have not even
imagined so far. But as long as the total household spending on culture continues to be on the same level or rising, nobody can claim
that artists in general will have anything to lose from a reformed
copyright.
Should this also have the side effect of loosening up some of the
grip that the big distributors have over cultural life, then so much
the better for both artists and consumers.
Here's the final excerpt from our Techdirt Book Club selection for May, Reclaiming Fair Use by Patricia Aufderheide and Peter Jaszi. If you want to see the first excerpt, the second excerpt and the third excerpt go check them out.
Also, Patricia will be joining us for a live Q&A discussion session about the book on Friday, June 8th at 1pm PT/4pm ET. If you have some initial questions, you can post them below or on the Step 2 discussion page, and we'll try to incorporate them into the Q&A.
Myths and Realities about Fair Use
MYTH: Fair Use is only valid when it is non-commercial.
REALITY: Fair use is designed to expand the range of cultural production, not just the range of
non-commercial cultural production. Almost all the occasional litigation on fair use, which has
determined this legal trend of interpretation, has been over commercial uses. (Generally lawsuits
aren't begun if there is no money to be gained.) Fair uses can be made of copyrighted material in
any commercial context, so long as the “four factors” of consideration tilt toward the value of new
contributions to culture against the cost to current owners. Currently the simplest calculation, the
one preferred by the courts, is to find transformation (reuse for a different purpose), and to make
sure that only as much of the original has been used as is necessary for the transformation; this is
best done with a justification for the habits and practices of a particular creative or user community.
MYTH: Any non-commercial use is fair.
REALITY: Who's it hurting, right? That's a common argument, especially among vidders, remixers,
and other creators in the online video environment, but the law doesn't in fact exempt
non-commercial uses. The law does privilege such uses in some cases, but you will unfortunately
today be in a grey zone if you lean exclusively on the fact that you're not selling your work. That's
especially true in online situations, where you may not be making money off your work but
somebody else is—usually an advertiser placing ads on a site, or a data miner. (There is no legal
definition of “non-commercial.”) Besides, giving work away that contains valuable pieces of other
people’s work can indeed hurt someone else’s pocketbook. If you have a legitimate fair use claim,
that pocketbook problem can be overridden (depending on how severe it is). Simply not making
money does not give you a fair use pass.
MYTH: Fair use is always valid if you're using it in an educational context, and especially
within a classroom.
REALITY: Being a good guy is not necessarily enough. Educational uses have their own special
exemptions, but fair use in any educational context will have to abide by the same logic as in other
contexts. But because fair use analysis is always done, implicitly or explicitly, within the context
of a community of practice, you can refer to the mission and needs of your field. Educational
contexts provide some very easy justifications for transformation (such as that students are analyzing
the content). Educators need to pay particular attention to their claims to fair use if they are
using commercial materials explicitly designed for their educational environment. In that case, an
educator's use might not be transformative. Sometimes codes of best practices apply; for instance,
media literacy teachers can consult the Code of Best Practices in Fair Use for Media Literacy Education
(centerforsocialmedia.org/fair-use/best-practices/media-literacy).
MYTH: Fair use is only about criticism and commentary, like parody for example.
REALITY: Criticism, commentary, satire and parody are all great examples of ways in which
copyrighted material is reused for a different purpose than for its original market, in the process
of creating more culture. (How does satire differ from parody? They are closely related. Parody
holds up to usually-funny commentary a particular work. Satire pokes usually ironic fun at anything
including behavior.) But they are not the only kinds of activities that qualify as transformative fair
use. Pastiche without a specific point to make—a collage or mashup--can also be a fair use. So might
quotation for discussion--and much more.
MYTH: Fair use is “the right to hire a lawyer.”
REALITY: In fact, fair use is no vaguer or unclear than other rights of free expression. Like with
questions of libel, indecency or obscenity, there are clear areas of comfort and safety, marginal
or risky areas, and troublesome areas. Most people most of the time know where they are. Your
greatest comfort is in knowing that your peers in a community of practice have already agreed
upon standards of interpretation. Many people have taken the comment of legal scholar Lawrence
Lessig, made at the beginning of the 21st century, that “fair use is only the right to hire a lawyer” at
face value and repeated it many times since. But Lessig made that remark before the beginning of
the current fair use movement, which has greatly clarified safe interpretations of fair use for many
communities. Indeed, he made that before he himself founded the Fair Use Project at Stanford,
which encourages wider interpretation of fair use.
MYTH: Fair use needs a really good “test case” in the courts, to set precedent.
REALITY: There are several reasons why we shouldn’t wait for litigation to improve our access
to fair use. First, fair use is only occasionally litigated; this is particularly true now, since fair use
is regarded with such favor by judges. Copyright holders with good lawyers understand that any
greater record of the useability of fair use is not good for their side. Second, any particular lawsuit
may be an outlier in any direction to a trend. Third, when you initiate a lawsuit, much can happen
that confuses or changes the story, muddying the judgment you wanted to get. For instance, the
artist Shepard Fairey seemed to have a very clear fair use right to use a photograph of Barack
Obama for a poster. But during preparations for the trial, he admitted lying about the photograph
he used, creating great distrust and prejudicing his case. Far better than waiting for a definitive “test
case” is establishing clear standards of interpretation. Such standards can be highly useful in any
ensuing litigation.
MYTH: Fair use is too dangerous; even if you win a lawsuit, your life and finances could be
ruined.
REALITY This is a conclusion that is drawn from two common but unfortunate practices: looking
only at lawsuits, not at practice; and lumping together all kinds of intellectual property conflicts.
If you only look at lawsuits, you will only see danger. If you look at lawsuits in context, you will
see them as the very occasional and circumscribed circumstance in a wide sea of perfectly legal
and uncontested practice. In reality, people are employing fair use casually and comfortably every
single day across the nation, often without thinking about it, and get no trouble at all. They are in
the safe-harbor areas of fair use. You can understand what those are as well. In the rare event of a
copyright lawsuit, defendants have a solid phalanx of pro-bono lawyers who are eager to litigate on
fair use, including Stanford Fair Use Project, the ACLU, EFF, and some intellectual property clinics.
Courts strongly encourage settlement and discourage trials. Anyone who proceeds with litigation has
rejected plenty of opportunities to settle. If defendants decide they do not want to proceed, they
will get plenty of opportunities to settle for relatively small costs. But the most important thing to
remember is that lawsuits are extremely rare, the exception to the rule.
People frequently confuse one kind of danger with another. For instance, the RIAA has sued a
clutch of average-citizen downloaders. The RIAA originally attempted to create enormous publicity
and public awareness about the illegality of downloading copyrighted material available for sale by
a few strategic lawsuits. These lawsuits proved entirely useless in discouraging downloading, while
racking up enormous legal bills for the RIAA and others. But the RIAA's case against downloaders
bore no relation to any fair uses. Downloaders were simply accessing material they could buy for
free, typically to use in exactly the way it was being marketed. The music industry may be backward-
looking, but its legal case was technically sound. It was not grounded in fair use arguments. Fair
users do not need to be frightened of RIAA lawsuits.
MYTH: Fair use is just a defense, not a right.
REALITY: Fair use is in fact a right that comes into play once someone accuses you of
infringement. At that point, you would respond by saying that you had a right to use that material.
Until then, everyone is simply going along minding their own business, creating culture. The right
of defense occurs in other contexts as well. For instance, if you are physically attacked, you have
the right of self-defense. This right never comes into play until you are both attacked and someone
accuses you of hurting them. Then you will invoke your right of self-defense. The fact that fair use is
a defense does not make it any less of a right.
MYTH: Fair use is just an interpretation, not part of the law.
REALITY: Fair use is neither new nor a mere interpretation. A 150-year-old feature of the law
(and widely exercised before that, without being explicitly invoked), it is a key element of a policy
dedicated to promoting culture. Fair use is an essential tool for us to be able to exercise our First
Amendment rights.
MYTH: I can't use fair use, because the copyright holders would never agree to it.
REALITY: Fair use is a right that you employ simply by accessing material, copying it and
incorporating it into your project within an appropriate context. You do not need to get anyone's
permission to do that, and you do not even need to let them know that you did it. Some legitimate
and uncontested claims of fair use are even made after one or more attempts to license; the attempt
to license may even increase one’s case for fair use, if the material is vital to what you are trying to
say. Some people like to alert the people whose work they took, as a gesture of respect or homage,
and this act of politeness is very often deeply appreciated. Sometimes they may want to alert a
vendor or archives holder of their fair use, because they have an ongoing business relationship that
involves licensing, they may want to eliminate ambiguity about the use, and they may want to stay on
the best terms possible.
