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.
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.
A new independent film documentary is starting to make the rounds of small theaters and informal showings. Who Does She Think She Is? explores the particular conjunction of female artistry and motherhood, particularly in modern American society.
As a group, women are under-represented in American galleries, shows, and in teaching about American art. Even moreso, women artists who are also mothers are all but invisible.
I have not yet seen the film, but it's been getting good responses from friends who have. Check it out, leave a comment with your impression.
The blog "The Consumerist" apparently has its readership vote for the worst company in America. The blog writers then suggest ways to improve the customer service at the nominated company. Why do I know about this? Because this year, the readers picked as worst the pointy end of the Cartel's jihadist sword: the RIAA.
Of course, the RIAA isn't really a company, it's a trade organization. And customer service really isn't on their agenda. What is on their agenda is passing favorable legislation, like laws creating the crime of attempted piracy. In order to pass laws, you need sock puppets... excuse me, members of Congress. Who, in turn, need money. Lots of money, something the RIAA has and gives out.
Consumerist has therefore published a list of "50 Politicians Who Take Campaign Money from the RIAA", along with their contact info. Because we can't influence the RIAA directly but in theory we can influence these fifty people.
The amounts listed are really surprisingly low - Orrin Hatch got a mere USD 6000, a pittance for this once-powerful sock puppet's dutiful service. There are also some disturbing names on the list, such as Ed Markey, whom I'd expect to have better sense than to accept money from extortionists.
Now comes NBC, host of the popular and occasionally risque skit show "Saturday Night Live." Recently the show ran a parody of sappy holiday songs called "Dick in a Box." As you might expect from the title, the song had some bits that weren't exactly censor-friendly and it was edited a bit when originally broadcast. The skit was popular with fans so copies ended up on YouTube. Now the story gets better...
NBC, of course, told YouTube to take down the fan-recorded copies. But instead of just bringing down the hammer (a la CNN) they gave the site a full UNEDITED version to post. Material that couldn't be shown on broadcast TV is included (personally I didn't think it was that big of a deal, but that's not the point of this story).
The point that interests me is that here we have an instance of something I've been arguing for since early Napster days. Big content houses can make use of peer sharing sites to promote brands, build loyalty, expand audiences - all on the cheap and at low risk. NBC has made a very smart move and the contrast with CNN's retrogressive actions only makes that clearer.
Quick followup on Banky's "artistic engagement" with Paris Hilton's new CD. A friend pointed me to Flickr, where a search on the keywords "Banksy" and "Hilton" turns up 58 images of the doctored CD's cover and interior images. At least one aspiring photographer linked to his eBay auction of a copy of the CD, which was removed before I could even bid, let alone win. So I'm still in search of.
The video is mostly Moby reading a prepared statement, but the message is clear: artists and musicians have come down on the side of "net neutrality." They've put their weight behind the fight that savetheinternet.com has been pushing - a neutral 'Net, free to carry all messages, equally - is the only way to continue the benefits we've enjoyed from the past fifteen years of Net expansion.
The Web page linked above has a simple form that you can use to get phone numbers for your Congresscritters. I suggest you use it. Some other links on this event:
How many trademark infringements can you spot in the The Million Dollar Homepage? Among all the ads for free porn, free domain names, and free gambling (only the first click is free), I spot least eBay and Yahoo! logos that don't go to those companies' websites. I can't tell whether they're associated listing services, click-through affiliate links, or phishing expeditions, but I imagine the companies would have a decent trademark claim against someone who used the logos for unrelated commercial gain. Even those offering companion services, such as eBay listing facilitators, might not win with a TM fair use defense.
(We're back, with thanks to Corante for giving us bigger and better hardware.)
Gavin Baker of FreeCulture.org sent me a note asking for people to sign up for their Pledge to boycott DRM campaign. This is really a "no brainer" for me. I cancelled my Sony-BMG membership years ago when they put out their first copy-locked audio disk and I haven't bought a new CD from a store in almost five years. (I do still buy direct from artists/DJs and haunt used-music stores.)
FreeCulture's modest 500 signature goal has been doubled so far and I wouldn't be surprised to see them get 5000 signatures.
Funds will be transferred en bloc to the Red Cross. As with any new organization there are questions as to its legitimacy. Possibly the best part of this are the (apparently) raw and unfiltered commentary flying off the bottom of the page in which this legitimacy is questioned and defended.
This, in my opinion, is what blogs do best - connect people directly and in a living fashion to issues and information of direct personal concern. Good journalism should do that, too, but the blog technology adds a participatory layer.
A couple weeks ago Fred von Lohmann commented in response to my Tori Amos blogging that "Bootleg" will soon be synonymous with "live recording."
Today's proof that Fred was right comes from Pearl Jam (Reuters story here on CNET) who are adding download capability to their purchasable live show recordings. For whatever reason, these live recordings, mixed on the fly, are now known as bootlegs.
Props to Pearl Jam also for offering the downloads in DRM-free formats, as well as putting some of the material into the iTunes store for people who want the best bits without the full concert download lump.
It's Friday, so it must be stupid ideas time again. AP story (here on SiliconValley.com) to the effect that some libraries are "lending" audiobooks via download. The period of lending is controlled via DRM, which locks you out of the file if you run over your time.
This strikes me as a pinnacle of absurdity - lending libraries impose time limits on physical volumes because my possession of the book prevents another patron from reading it. Downloads... um, DON'T. All the patrons could download the same book and no one's having a copy on their hard disk would impede another's listening pleasure.
DRM might be justified if it attempted to prevent a patron making or distributing copies, but if I'm borrowing a book rather than buying it, what difference does it make how long I hold that borrow? Libraries permit patrons to renew or extend the lending period on a physical book, so long as there's no one waiting for it. There is no one sitting around waiting for me to finish listening to my download. Really. I promise.
(I'm not even going to get into the stupidity of having a download system that's incompatible with the majority player used by the community the library is supposed to serve - iPod. It's rather like a US library stocking volumes written solely in French.)
The Christian Science Monitor reports that the UTAustin library has removed 90,000 books from its undergraduate collection. In place of books, undergrads can now find couches, 250 desktop computers, and laptop bays. In an effort to be more in tune with the times (or something) the library is trying to be more Internet cafe (yes, there's going to be a cafe as well) and less dusty stacks.
The physical change, of course, is only the surface manifestation. As Donna recently commented in this blog, a battle is ongoing to preserve the essence of libraries. Part of that battle is introducing the resources and capabilities of libraries and librarians to a generation that has come of age with the 'net, sometimes with the Internet/Web as their only or primary information sources. Colleges and universities are attempting to help undergrads connect the new online sources with the traditional written sources.
Interestingly, the article notes that our current version of libraries for undergrad study is not that old. Kris Axtman's story reports that "Harvard University created the first undergraduate library in the 1950s" - this is potentially incorrect. I called Widener (Harvard's Library) and spoke with someone who was a student there in the 1970s. He indicated that he needed a letter from a professor to access the stacks as an undergrad at that time. To some degree it depends on what Axtman meant by "created" I suppose.
The nice fellow at Widener promised to research the question and email me an answer. I'll update this blog entry when he gets back to me. Hooray for librarians!
UPDATE: based on research from Widener and anonymous comment on this entry, it seems that the appropriate date is January 1949 and it was Lamont library. See Lamont Library's history page.
...(and with permission). Neil Gaiman posts about a very cool effort to raise money for the First Amendment Project. A number of "names" in the writing business are auctioning off the opportunity to have your name (and/or physical description) applied to characters or things in literary works, including Stephen King's new novel Cell, a Lemony Snicket book, a Jonathan Lethem Marvel comic, a gravestone in Gaiman's next childrens' book or a LOT more. I counted 16 offers up on the eBay page linked below, and there may be additions coming.
Gaiman's blog entry explains the history and reasoning behind the project. Or if you're impatient to bid you can just jump directly to the eBay auction.
A friend/Tori fan pointed me at the Tori Amos "bootlegs" site. OK, let's see. If it's approved by the artist, created by her record company, officially released, marketed with the full power of the Cartel, that makes it a bootleg precisely how?
Normally I try to get fun stuff to post on Fridays; this one is just a bit late.
Savefile.com is offering free anonymous file uploading (and downloading). Their FAQ explicitly states no copyright-violating material but I'm not sure how they're enforcing it. Still, it beats holy heck out of email attachments.
Rense.com posts on "virtual" street art by English artist Julian Beever. The artist specializes in anamorphic images - that is, images that appear 3D when viewed from the proper angle. Impressive trick, to say the least. For fun, count the number of potential trademark & copyright violations just in this set of sample images.
I find the contrast between the permanence of body art and the transience of street art fascinating. When I look at new legislation, new court rulings, or the other things that fill this blog most days I try to keep in mind the huge variation in forms of expression and the people making those expressions.
This week the BBC will announce there have been more than a million downloads of the symphonies during the month-long scheme. But the initiative has infuriated the bosses of leading classical record companies who argue the offer undermines the value of music and that any further offers would be unfair competition.
The BBC made all nine of the Beethoven symphonies available for free download, with commentary, as part of their Beethoven Experience.
You'd think that arts leaders struggling to expand their market to younger generations would welcome evidence that downloaders want to give classical a try. Any classical afficionado knows that one performance of Beethoven's Ninth isn't a direct substitute for another, just as baseball fans don't stop watching just because they've now seen the Red Sox win the Series. Instead, hearing and appreciating an intial performance is the first step toward wanting to hear the other greats, in concert or on CD. Those pop fans who realize Gianandrea Noseda's Pastorale fits on their iPods may well be moved to try more.
But instead of welcoming this new audience with offerings of their own, the labels complain that downloads are "devaluing the perceived value of music." They make the same error intellectual property maximalists do -- thinking that "exclusion" equals "value." If few people want to pay for your product, it doesn't have much market value, no matter how much you want to charge. The RIAA's 2003 Consumer Profile indicates just 3% of U.S. music purchases were classical, while BPI reports that in the U.K., classical CD sales totaled under 14 million for that year. Against that small market, a million downloads in two weeks is huge. Labels should focus not on the hypothetical hordes who might buy high-priced CDs, but on the real likelihood that free downloads introduce a wider audience of potential purchasers of a wide range of classical music.
I for one, hope the BBC extends this experiment. Listening to the BBC Symphony's Beethoven First now.
CPTech's Michelle Childs brings news of a BBC documentary called "Time Shift: Missing, Believed Wiped" that reveals how copyright-infringing home-tapers helped save a part of British cultural history. Explains Childs on the A2k list:
[The documentary] told the story of the beginning of TV in the UK. As tapes were expensive but content was then thought to be cheap, large numbers of now historically relevant programming was erased so they could reuse the tape. The BFI and the BBC then woke up to their loss and set up a public appeal called Treasure Hunt where they asked collectors (i.e., people who either copied thmeselves or purchased from others) to hand over copies. This has been a great success, with the BBC finding many missing programmes. However, the BBC does not pay the collectors, as what they orginally did was a breach of copyright, but do let them hang out at the BBC archive and choose a copy of something they want. Some collectors are annoyed about this, as the BBC then puts some of these clips onto DVDs and sells them.
It's interesting to note that even a national public service broadcaster could not be the sole documenter of even its own history, and it was the choice of the people who watched to record for personal use certain programming that ensured its survival.
One of the unexpected side-benefits of copyright's (traditionally) "leaky boat" -- you've got a bit of help when you need a bail-out.
PostSecret is either a great hoax or a fantastic exercise in appropriated media and human sociology. People mail in secrets anonymously on postcards. Nominally the cards are homemade, but many of the posted images are commercial and reused. Many of the texts are also cut-and-pasted, ransom-note style. The taking and use of others' images and typography to convey what are supposed to be intensely personal messages is fascinating postmodern commentary. I do think it's slightly disappointing that it's run out of a single centralized blog; imagine PostSecret as done over a P2P network!
Bravo to the students at Free Culture, who have just reached an important milestone: incorporation. As part of the process, they're asking the Internet community for advice on a number of key organizational decisions, while explaining the important role the student movement plays in the battle for a culture in which we can all be active participants:
Only a handful of students want to be activists, but millions of young people want to know more about why Napster got shut down, why their friends are getting sued, why they can share and remix some things and not others, why the TV news talks about celebrity trials rather than the issues in their own communities, how new technologies offer people new ways to participate in their culture and society (and why some people want to stop it), how this process has played out historically, why people can't afford medicines even though they’re cheaply produced, and so on.
These issues are in the news, and in our conversations, every day. We, as a generation, want to know about them. And inevitably, once we learn a bit, we want to stand up for what we see as right, and stand up against what we see as wrong. To bring young people into these discussions, I'm convinced, is at the heart of our mission.
We're incredibly lucky to have these smart, energetic, inspired young people talking face-to-face with other students about these issues. Check out Gavin Baker's post and lend a hand.
Traditional law still permits photojournalists the same rights as the general public - stand in a public place and you can take a picture of anything the naked eye can see. However, newer laws such as the Patriot Act, and agency regulations such as the TSA's regs, may give conflicting or confusing interpretations. With the proliferation of cameras in cellphones and PDAs, it seems likely that we're far from resolving the conflicting interests of artists, journalists, the general public, those who want privacy, and those who want more security.
Fascinating article on the BBC regarding the copyright wars between India and Pakistan (How piracy is entrenched in Pakistan). Turns out that Pakistan is cracking down on copyright infringement of Western movies, but not on movies from India:
"I am sure that at some level, allowing piracy of Indian films was considered a smart act of industrial sabotage by the Pakistani policy makers," says Ameed Riaz, the head of EMI Pakistan.
"Basically, anything that hurt India was considered kosher."
It is no coincidence that the first - little noticed - copyright law adopted in Pakistan in 1962 expressly stated that it did not cover Indian intellectual property.
However, the effect, it seems, was to entrench Bollywood even further in Pakistani culture:
Not just that: Pakistan's fashion and modelling industry has come to be deeply dependent on the Indian film culture.
Event management companies in Karachi that organise weddings for the affluent say that many brides want the wedding stage to resemble a set from a particular movie.
The wedding set from Indian diva Aishwarya Rai's film, Hum Dil De Chuke Sanam, was replicated at so many weddings in Karachi that it became a joke.
Street jargon employed by Bollywood crime characters has become every Pakistani parent's nightmare. Even the mullah in the mosque - if he wants to be popular with his audience - will base his religious anthems on popular Indian film music tunes.
Copyright can be enough of a problem when copyright claimants make unreasonable demands, but sometimes, it's even worse when you can't find the copyright holder at all. Documentaries don’t get broadcast; books don't get published; films don't get restored; digital materials don't get archived, all because they use or incorporate works whose owners can’t be traced, so there's no one from whom to seek permission. In many cases, orphan works are lost because no one can authorize their use.
The Copyright Office has opened a Notice of Inquiry on the problem of orphan works, requesting public comment on the scope of the problem and possible solutions. Many people submitted comments, and Kat Hanna and Stanford's Center for Internet & Society are working to get even more evidence into the record on reply. Reply comments are due May 9.
They’ve invited us to highlight comments from round 1 to get your creative juices flowing, so here's one from Daniel Callahan, discussing the problems orphanhood poses for those who want to enjoy or study comic book culture:
The comic book industry is usually perceived as composed of two
publishing entities: Marvel and DC Comics. However, there have been many
smaller companies over the last six decades who have entered the market
and later gone out of business.
As such, surviving copies of the titles they published are rare, and
their preservation as works of commercial art is dubious because of
existing copyright laws. Marvel and DC may easily publish a 'reprint'
volume, but a fan or entrepreneur who would like to scan in or republish
comics whose copyright holders cannot be located remains stymied.
A comprehensive preservation project of these works cannot be done
unless and until the status of orphan works is determined by your
office. Since many of these comics books were not printed on paper
designed to survive for decades, there a window of time in which this
preservation can be done. If the status quo remains, we will most likely
lose many books to decay or neglect.
If this sets you to thinking about ways you or others you know have been affected by the "orphan works" problem, head over to OrphanWorks.org, where we've made it easy to submit a reply comment.
In his first trip to California as the nation's attorney general, Alberto R. Gonzales told a group of high school students to just say no to online piracy.
But, for many of the students, the response was to just say "why not?"
During a daylong UCLA seminar featuring Gonzales, students peppered speakers with tough questions about the real effect of piracy. Some even suggested that government should focus more on tackling poverty and improving education than on jailing kids who download movies, music and software.
And the kicker:
Unfazed by the students' skepticism, Gonzales said this was only the beginning of an intensive educational outreach effort. He wanted to let the students know that intellectual property theft was illegal, carried consequences and could permanently stain their records.
"Sitting through a one-hour, two-hour session may not be enough…. It takes awhile to educate people," he told reporters later.
Yes, I'm sure a few weeks of "reorientation" in GTMO will do the trick quite nicely...
A nice, if lightweight, piece in the Boston Globe from Stacey M. Perlman on the interpenetration of mobile tech and artistic/cultural expression. She highlights a couple of projects that use location markers and cell phone technology to permit people to share information about places. Each project involves leaving a physical marker with a cell number; when an interested person calls in and enters the marker-specific number, she gets information left by another person. Nominally the information is about the place so marked, but it could be as varied as a restaurant review ("Eat here, it's great!") or an intimate story ("This is the spot where my wife and I first kissed"). The degree of control exercised over the content varies from project to project and these two are only samples out of a vast space that has been evolving for at least the last ten years.
Still, it's interesting to me because I believe art can be used to project forward into what uses may emerge for technologies. Proposals like those made by MGM in its attempt to smash Grokster are not only deleterious to consumers, they're anathema to the creative arts. How could any inventor begin to predict the variety of art projects that will employ his new technology?
How many trademark infringements can you spot in the 
