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.
First, a bit of background - bear with me here. It's an ongoing frustration for Web designers to try and get the things that show up on peoples' screens to look like what the designer wants. I vividly remember going to visit a customer who complained that my product looked terrible on her screen and discovering that she had somehow jiggered her Web browser settings to map the colors I had chosen into some hideous chemical green and pink.
For most of the history of the Web, designers have fought to take back control of the appearance of their product through techniques such as embedding text in images or using other technologies such as Flash that permit much more rigid and detailed settings than most browsers' HTML. Unfortunately these technologies tend to produce bad user experiences by being inaccessible to blind users, taking a long time to load, requiring constant updating of plug-ins, and so on. Over the past few years, the evolution of CSS (Cascading Style Sheets) has allowed designers to do more of what they want without locking up their content. Most critically, freeing text makes page indexing more accurate, which helps findability.
One of the more recent additions to the CSS arsenal has been the ability to link to a specific display font. Without such links the designer is at the mercy of whatever fonts are loaded into the user's browser. Depending on the browser is at best an imperfect solution as fonts may be missing or have bugs in them. If you want your HTML-encoded text to be properly read everywhere by everyone, the best bet is to say "render it in THAT font" and then test the heck out of it to make sure it works.
(Full disclosure: Jeffrey Veen and I overlapped in time at the MIT Media Lab. I did not speak to him for this article.)
At least that's what the DoJ thinks is fair, according to papers it has filed in the Jammie Thomas punitive damages debacle. Yes, certainly Congress intended low-income students and single moms to be ordered to pay USD 2 million because... um, because something. Well, the DOJ seems to think that huge damages are deterrent. Which we can clearly see from the massive drop in file-sharing that has taken place since Congress passed this law in 1999. File-sharing has gone down in the last decade, right? That's what deterrence means, right?
It has been said many times, but it bears repeating once more: the biggest threat to most new artists is not copying, but obscurity.
I've been watching the struggle as one of my favorite new acts - the steampunk band Abney Park - works through the difficulties of getting themselves, and their unusual musical approach - noticed. They don't fit any radio or categorization format I'm aware of. They do mix in elements of industrial, but they also do old-style sea shanties, which doesn't make them consumable by the usual radio stations that play industrial.
Unlike writers, who can organize things like an Interstitial Arts book publication and join in the effort to publicize themselves, the band seem to be going it mostly on their own. They've played a number of conventions - steampunk cons mostly - and related festivals.
And in addition, they're giving it away. Almost every song they do is up on YouTube and other sites. If you prefer a direct feed you can subscribe to a blog (LiveJournal) at: http://community.livejournal.com/abneypark - and get fresh live vids of songs that aren't even released yet. According to numbers I've seen there, at least one of their vids has over 100k hits on YouTube.
Still, I'd venture to guess that most folk don' t know about Abney Park and I'm certain there are thousands upon thousands of other great bands out there all needing exposure and ways to connect to people who will love what they do. We so desperately need ways to help these creative types, and not more ways to lock up content.
What we have here is not just an argument about how our laws are interpreted. Nor does this appear to be a typical case of an organization attempting to clutch unto itself every right it can grab. This is a clash of cultures, both of which think of themselves as promoting a particular set of social good things, and tangling over the expectations and legal frameworks available to them.
On the one hand, we have BMO and a set of attendees, who seem to feel that what happens at Burning Man should stay at Burning Man. The potential impacts of publishing shots of people running around naked in the desert, and the personal violations of what many consider sacred space, are getting tangled up with talk of commercial exploitation (or use, depending on which side of the fence you sit) and the norm that I own my own photographs or other recordings and can use them. In addition, you have potential conflicts between BMO, which feels it has a "brand" to protect and does aggressively police use of its trademarks - and artists/performers who sink thousand of their own dollars into creation of performances and spaces and artifacts, the publicizing of which can vastly enhance the artists' reputations and careers.
These expectations sit within at least two different cultural frameworks, one of which says that the standards for things like model releases and permission grants should apply, and the other of which says that an event like Burning Man is essentially a private affair, within which the organizers are free to create the rules as they see fit - including rules about making recordings - and people who don't like those rules are free to vote with their feet.
Finally, we layer onto this at least two attempts at legal framing - the DMCA and Creative Commons. The first, as an attempt to top-down legislate how rights-holders should retain their copyrights is pretty roundly regarded as a failure. But there isn't anything better, except maybe Creative Commons which has attempted to craft licensing frameworks that are less restrictive. Since BMO feels that CC doesn't do what it needs, it has nothing else to fall back on except the DMCA and other antiquated legal structures.
What's the right answer here? Heck if I know. CC is certainly not the be-all and end-all of possible licensing arrangements. It needs to grow and evolve - one of the things that makes CC so interesting is that it can grow and evolve and be transnational in ways that US laws cannot and do not. I think that the people on both sides of this argument are good-intentioned and reasonable, which suggests compromise is possible.
Still, I think BMO are fighting a rear-guard action in a losing war. We live in a "facebook culture" where people post everything and anything about their lives and privacy is a quaint notion for graying hippies. People find out they've been broken up with via someone's status update. People follow the minute details of events in real time via Twitter feeds. People want to own their creative works and use them as they see fit and if that includes making a buck then so be it. Burning Man needs to find its place within that cultural shift, not attempt to be some Rock of Gibraltar standing against all tides.
I'm not a burner (person who attends the Burning Man festival) but several of my friends have gone in past years and some will go this year. And more than a few are unhappy with the Terms and Conditions that the festival is attempting to impose on recordings (photos and videos at least, probably audio as well) taken out on the playa.
As the EFF's Corynne McSherry puts it, the terms include a legal "sleight of hand" that will allow the organizers to claim ownership of rights in those recordings, if the person uses them in ways that the organizers don't like. McSherry argues that the Burning Man Organization, which runs the festival, appears to be trying to build up a wall of DMCA-backed bricks to cover itself in all sorts of questionably legal and highly restrictive ways.
Yeah, like THAT's going to work with the attendees.
Today a friend pointed me to a blog entry by Phil Coomes, a picture editor (and photographer in his own right) for the BBC. In this posting Coomes relates several stories of photographers in the UK who have been harrassed or worse for taking pictures of public buildings, of police officers, and so on. It appears that the British photographers and photojournalists have had enough and are forming an organization called, explicitly enough, "I'm a Photographer, Not A Terrorist".
The site invites people to upload their own photos, presumably posed with signs like the ones on the home page. In addition, they provide a "bust card" that people can print out and carry with them. The instructions are specific to the UK and relate to its "Section 44" law that had photographers protesting outside Scotland Yard not too long ago. I would be very interested in seeing examples of similar cards customized for other countries, such as the US and Canada.
(Full disclosure: I'm a hobbyist portrait photographer in the US and though I don't make any money from my photos I'd like not to get arrested for pointing my lens at a policeman somewhere.)
First, I want to acknowlege the comment made in this blog by Christopher, an owner of a small radio station. It's pretty clear that small radio stations are struggling, like many small businesses. The question is whether the bill contains the claimed exemptions for small stations and whether mega-conglomerates like Radio One are also struggling or whether they're simply using people like Christopher as shields.
The FCC is reviewing the complaints against the radio stations that refused to run the ads, and promises there will be a public comment period during the review, but no timeline is mentioned. Meanwhile the Post's article gives a hint of some of the confusion surrounding the issue - Radio One is reporting some revenue gains, but also a signficant drop in ad dollars. They're also claiming that the bill would result in job losses - but isn't that always the claim made when people want more money for things?
Finally, in a moment of amusing irony, I note that among Music First's sponsors are the noted Cartel bright boys, the RIAA. Maybe broadcast radio should have come to the aid of Web radio when the Cartel leaned on them, eh?
The amount of text copied that is necessary to trigger this seems to vary by which browser you start in.