When I posted the previous entry, noting EFF's critique of the Burning Man Organization (BMO) restrictive IP policy, I was uncertain what category to use. I chose "Culture" sort of on a hunch. Reading Andie Grace's extensive response in the "Burning Blog", I see this hunch was right.
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.
(P.S. The comments on the Boing-Boing blog entry on the topic are also worth reading.)