Here we'll explore the nexus of legal rulings, Capitol Hill
policy-making, technical standards development, and technological
innovation that creates -- and will recreate -- the networked world as we
know it. Among the topics we'll touch on: intellectual property
conflicts, technical architecture and innovation, the evolution of
copyright, private vs. public interests in Net policy-making, lobbying
and the law, and more.
Disclaimer: the opinions expressed in this weblog are those of the authors and not of their respective institutions.
Clay Shirky is one of the better Big Thinkers on the Web today, particularly in the arenas of social media and cooperative interactions. He's published an essay called "Gin, Television, and Social Surplus". In part this is related to his new book Here Comes Everybody but focused around a single idea.
The idea is that, contrary to the naysayers, we are doing something, potentially the start of something huge. That something is participating, whether it's in something as erudite as Wikipedia or as trivial as lolcats and World of Warcraft. We're taking some of the hours we currently waste on passive television viewing (Shirky estimates roughly one trillion hours of television are watched by the Internet-connected population) and putting them into "an architecture of participation."
Now, as a Copyfighter, the thing that interests me is that almost all of that participation involves creation and sharing, to some degree. If you're in a constrained environment like Warcraft or Second Life, then the acts of creation and sharing you can engage in are limited by the virtual world's structure, coding and rules, few of which are accessible to the mass of players. But if you're out on the wider 'net then your creation and sharing are inevitably going to bump up against the intellectual property structures of the physical world.
So maybe the Copyright Wars were inevitable. And maybe, if Shirky is right, they're not only inevitable, but it's inevitable that we - the online, wired, connected, sharing population - will win. Or our children will. Looked at this way the Copyright Wars aren't just the death throes of a few mass media empires with badly outdated business models - they're the collateral damage of a tectonic culture change. That's a cool thought, even if it's probably wrong in some of the details.
Gaiman included a few "final" thoughts on copyright. Given how much he's involved himself in the discussion of these issues over the years I seriously doubt this'll be his final word, but perhaps he feels he has no more to say on the Rowling case.
In this entry he's reflecting on his own copyright battles with Todd McFarlane over authorship of certain material that Gaiman wrote. He also links to the judge's decision in that case. There are no real parallels that I can see, and Gaiman says as much. Still, it does point out that he has first-hand experience of someone trying to steal things he wrote and that there is a framework within law for dealing with such things - where such framework does not include Ms. Rowling's emotional appeals to 'think of the charity'.
He also notes that his own two first books were at best legally shaky in Fair Use terms - an aggressive lawsuit could easily have shut him down from writing anything more. On the one hand that'd be a shame - Gaiman is popular and has gone on to write many well-respected and awarded books. On the other hand, I'm not sure it's a career path we can depend on a lot of people following.
At issue are incidents like a 32-page copy made by a music professor. The prof claims that the copying was within University guidelines ("no more than 20%") and that the cost of the volume ($250) was prohibitive for students to purchase. The publishers claim that the U's practice of digitizing and distributing course packs of excerpts costs them money in lost book sales.
The case is a little different from typical copyright suits such as the Rowling case. The publishers are not seeking monetary damages, nor are they particularly trying to punish the University. Instead what they're hoping to do is create a legal precedent saying that Georgia State's guidelines and practices do not constitute fair use and not only should this university be enjoined, but the multitude of other schools with similar practices should be stopped.
As Conley points out, this case may break new ground. Past cases have been decided on issues around the creation of paper copies (Xeroxing) often by for-profit institutions. In this case, the copying at issue is digital and the organization doing the copying is non-profit. The educational area is one where courts have traditionally afforded a greater degree of leeway in fair use and even the plaintiff's lawyer has to admit that he can't find a law or binding precedent stating how much digital copying would be "not too much." It seems likely that if the case ever makes it as far as a decision that decision would be appealed. My personal opinion is that they'll work out a settlement before it gets that far - neither side wants to see a precedent set that would go against them. Plus there's a core reality that academic publishers and educational institutions exist in a kind of death-grip dependency that would harm both if it was violently broken.
The basic question is whether or not the lexicon itself is a protected fair use creation or whether its printing should be enjoined as copyright infringement. Or, as Rowling called it, "wholesale theft."
Rowling's arguments seemed to be laced with emotional appeal and what strikes me, frankly, as shenanigans. She's so upset about the book that she had to fly personally to New York to testify, even though the judge offered to accept written testimony. The book has also "decimated [her] creative work" even though she gave the Lexicon Web site an award in 2004. And, somehow, the publication of this book is going to stop her project of doing her own lexicon, as if her fans wouldn't buy every single work she published. Did you know she was just about to give away all the proceeds from her lexicon to charity? News to me. Hey, Rowling, how about you take some of that $9 billion in book sales and donate it instead?
Mind you, I'm not convinced she's not right - the Lexicon book may well be infringing. I just dislike cheesy appeals to emotion. Think of the children! Puh-leeze. None of this is really germane to the question of whether or not the Lexicon is a transformative reference work, in which case it ought to be protected. Fortunately there's no jury to be swayed in this trial - let's hope Judge Patterson sticks to reasoning from the facts.
Daily Kos posted a think piece this weekend. The essay argues that big media have, in effect, caused their own devaluation. That is, the "amateurish" state of news on the Web is not really due to the proliferation of bloggers or non-authority sources such as Wikipedia. This is the thesis advanced by Andrew Keen in his book The Cult of the Amateur. Instead, the problem is that there has been a systematic attack on big news sources once considered reliable (CNN, the NY Times, the Washington Post, etc.) by forces such as talk radio and Fox News.
It's no coincidence that these latter are by and large right-wing, and Daily Kos is itself quite left-wing. However, that doesn't make the argument necessarily wrong. Just something more to think about.
Neat-o-rama blog reported that students in UT San Antonio were told to come up with a "code of academic integrity in order to combat plagiarism". Apparently they then copied a chunk of their code from BYU.
Now on the surface this is a ha-ha funny story about kids who copy when they shouldn't. But the people I think don't get it here are the teachers and Neat-o-rama (though in fairness the blogs' commenters seem to get the point better than the blog itself). Why shouldn't the students copy an existing code from a university that is respected and has presumably tested and refined its code over some period of time? What's the value in inventing something new when there are good examples around?
By analogy I suspect you wouldn't find many differences in the criminal codes of the various US states pertaining, say, to burglary. The established terms and definitions are shared; the understanding of the crime is shared. The specific wording may vary here and there, but if I was going to set up a 51st state it would seem logical for me to look at and probably copy criiminal codes that have (you should pardon the term) been debugged by others.
In terms of inventive arts I don't think there are a whole lot of innovations one ought to make in putting together a code of conduct. Clarity, forthrightness, simplicity and other metrics related to the understandability of the result seem to me to count for a whole lot more than how the particular words are arranged.
It's true that one of the important parts of an educational writing exercise - as well as in the real world - is learning to acknowledge one's sources properly. And I'd bet the students didn't do that here, but whose fault is it for not teaching them that?