Copyright

Notes from a lecture: Copyright – One size fits all?

The setting for my lecture yesterday was the venerable SERI and the event was the annual “birthday” lecture: It was 41 years ago that the first seminar on law and computers was held in Oslo and this event launched what is today SERI.

The title of my lecture was Copyright – One size fits all? Unpacking Sophocles. The goal was to demonstrate that by bending and twisting copyright to fit new technologies and expressions we will eventually “break” copyright.

 

Copyright: One Size Fits All?

The lecture began with a brief introduction to cultural relativism and presented a quote from Franz Boas

“…civilization is not something absolute, but … is relative, and … our ideas and conceptions are true only so far as our civilization goes.”

Franz Boas 1887 “Museums of Ethnology and their classification” Science 9: 589

To visualize this I showed a clip of Siberian/Thuvan throat singing and explained that while we lack the tools for judging the quality of this singing this was an example of Siberian/Thuvan singing and it is a genre quite different from other forms of throat singing.

The same applies to the concepts of right and wrong but we are so embedded in our values that we are, at times, unable to see what is right or wrong.

In addition to this we must, especially in the world of copyright, pay attention to technology. And in particular to the fact that technology is not neutral and comes with particular affordances (i.e. limitations and/or possibilities).

I showed the audience the image of the tube bench and asked if they saw the ethical problem.

image from Yumiko Hayakawa essay Public Benches Turn ‘Anti-Homeless’ (also recommend Design with Intent)

This is an excellent example of regulation without rules. There are no signs explaining how to use the bench, there is no need to patrol the park to ensure misuse. In fact you could argue that this bench is equally inviting to all. But this bench is unfair in its equality. If you do not fit in you are not welcome. A homeless person cannot sleep on the bench. Without specific – and unpleasant – rules we regulate “correct” behavior in this park.

Now if you mix technology and cultural production we get a heady mix. But skipping head we touched down just briefly in 1631 with an example of the dangers of technology (printing). The example was the Wicked Bible.

This bible was a reprint of the King James bible but contained a serious typo in Exodus 20:14, where the Seventh Commandment reads, “Thou shalt commit adultery.” The printers were fined 300 pounds and their printers’ license was revoked. Today there are only 11 copies of the original 1,000.

It was not the event with the bible that created a need for copyright but there was a concern with the power of the printers and a recognition that society needed more cultural works. So in 1710 the Statute of Anne was enacted with the purpose of:

Wheras printers, booksellers, and other persons, have of late frequently taken the liberty of printing… books, and other writings, without the consent of the authors… to their very great detriment, and too often to the ruin of them and their families: For preventing therefore such practices for the future, and for the encouragement of learned men to compose and write useful books…

The first copyright act was not about culture it was about science. It was for the production of useful books.

But this was too good to last. The gift of monopoly was going to be used in more and more places and ways. Copyright expanded from useful books to other forms of cultural writing. The length of time the monopoly lasted was increased. Copyright was made international via conventions. And most problematic it was tweaked to suit new forms of technological expression.

For the latter I told story of Napoleon Sarony and Oscar Wilde and the case of Burrow-Giles Lithographic Co. v. Sarony where the US supreme court explained that photographs were equal to text and deserved protection under copyright.

Copyright became a natural part of our thinking. It became hegemonic and natural – we could not image a world without it.

At about the same time we began to embark on the social century. Everywhere common folks were demanding to be part of – and have a say in – life. In politics, in the workplace, in economics, in the schools… the people demanded their “right” to be part of the decision making process.

Aided by technology ordinary people entered the realm of professionals. Kodak nr 1 was released in 1888. It was the first mass-produced cheap easy to use camera. It was portable and had a short exposure. What this all meant was that Kodakers (amateur photographers, see “’Kodakers Lying in Wait’: Amateur Photography and the Right to Privacy in New York, 1885-1915”, American Quarterly, Vol 43, No 1 March 1991)

The problem was that even with the development of cheap recording devices for sound and vision – transmitting these to others was remained in the hands of larger organizations.

But technology was changing this too. With digitalization the expense of copying all but vanished, with connectivity the possibility of communicating to a wider audience became possible for “everyone”. With new digital devices we began to change our behavioral patterns. Here I exemplified with MP3 players that can contain so much music that choice is not an issue. It is interesting that we praise the selling of devices that almost cannot be used legally. What message does an iPod that has 160gb of storage (that’s 40 000 songs according to apple) send? (1) please go buy some music or, (2) download the internet here.

The final major change was storage. Storage is both similar to the iPod example and different to it. Storage means no longer having to decide what to remove. Storage today means that the only problems we have are how to organize our information so that it can be retrieved later. And what about letting people forget? Forgetting is a social necessity and is quickly becoming a scarce commodity (Mayer-Schönberger has written a fascinating book on the subject “Delete: The Virtue of Forgetting in the Digital Age”).

These changes pushed the social century into the next phase: the social decade. All the points made earlier come together. The theoretically possible becomes the inevitable.

At this point it is a clash of norms mainly in the form of an end of passive consumption. But what does it all mean? To ease into this stage I took the help of Douglas Adams and his amazing quote from The Salmon of Doubt (2002)

Anything that is in the world when you’re born is normal and ordinary and is just a natural part of the way the world works. Anything that’s invented between when you’re fifteen and thirty-five is new and exciting and revolutionary and you can probably get a career in it. Anything invented after you’re thirty-five is against the natural order of things.

With this quote I wanted to point out that the Swedish Copyright Act was enacted in 1960. The group of people who thought long and hard about its content, form and scope were probably around 50 years old. The technological acceptance level (i.e. what is a normal use of technology) was developed before they were 35 so this means around 1945. Think about it – what level of technology was dominant in 1945?

It is not unfair to say that this group had no chance to enact legislation capable of suiting our technological reality today.

At this point in the lecture I wanted to bring in law and morality in relation to copyright so I drew a simple taxonomy

As an example of Homage I showed clips from the Odessa Steps scene in The Battleship Potemkin (Sergei M. Eisenstein, 1925) and the station steps scene in The Untouchables (Brian De Palma, 1987). This is acceptable and praiseworthy. The artist building on the past, Eisenstein’s opinion does not matter.

In Cross Culture I showed a clip from the Kill Bill (Tarantino, 2003 & 2004) trailer and argued that we take offence when someone in Asia copies a dvd but profiteering from another’s culture is art. (Laikwan Pang: “Copying Kill Bill”, Social Text 83, Vol. 23, No. 2, Summer 2005.)

In the remix corner I showed an Anime Music Video (AMV) combining ABBA and Anime cartoons called FMA AMV Gimme a Man After Midnight – Abba

Here is a form of cultural creation building on the past re-using and copying. It is unfortunate that this is not supported by law. The AMV practice is huge with groups and subgenres in the same way as Siberian Throat singing. It is culture, it is an entry point for artists and it is a legitimate form of artistic expression. (Check out The rewards of non–commercial production: Distinctions and status in the anime music video scene by Mizuko Ito. First Monday, Volume 15, Number 5 – 3 May 2010)

For pure downloading I did not show any clip. What I meant was of course illegally downloading copyrighted material. While I understand the desire… it is simply a parasitic behavior.

Now the problem is that when our technology makes it easier and easier to break the law there are cries from those who are invested in the current system and who profit well from it who cry that something must be done. Unfortunately you cannot put the technological genie back in the bottle. And this is not what they want. They want all the advantages of technology – but they don’t want it to change everyone’s behavior and negatively impact their business models. They want to have their (and our) cake and eat it. So they call upon the law to create artificial barriers.

In doing so they further twist and stretch copyright to the boundary of imagination.

The copyright industry/lobby (incredibly bad term so I ask you to understand me) also attempt to explain their actions to us – the consumers. This is done to lobby themselves into a better political position. Unfortunately this group seems to have forgotten themselves and the world in which they live.

The message they send is very top down. It comes, as if we were still living in the radio age, like mass media from one to many. To explain what I mean I showed the anti-piracy advertisement Piracy – it’s a crime

The problem with this advert is that is filled with the most bizarre and bad arguments. In attempting to portray illegal downloads as wrong they say things like: you wouldn’t steal a car.

Naturally today we no longer live in the top-down world. We the people no longer respect… We respond. One such response makes a joke out of the Piracy – it’s a crime advert. I showed a clip from The IT Crowd – Series 2 – Episode 3: Piracy warning parody

OK so what should we do?

Now the pirates (how’s that for another hugely vague and silly term) or anti-copyrighters may say “The first thing we do, let’s kill all the lawyers” Shakespeare Henry VI (Part 2) Act 4, scene 2 but that may be going a bit too far.

Lawyers need to adapt in two main ways. (1) We need to be better a arguing and legitimizing and (2) we need to change the law.

First off we need to accept polycentric regulation. In Antigone the playwright Sophocles argued that if the law went against morals (natural law) then you could act in accordance with natural law. This gave a nice choice between following one or the other depending on the way you feel about a particular thing. In other words you could do what you like and find a way of legitimizing it later.

But Sophocles had it easy. Today it is not an either or situation. We are regulated and controlled by masses of factors from the law to culture to technology etc. Learning to navigate and understand this is incredibly important for any law that attempts to balance interests of several groups. But if the law fails to be relevant it is quickly going to become useless.

In the case of copyright this means abandoning the heavy-handed “one size fits all approach” in two ways. First copyright should not be used for everything and second it should not be applied in the same way on the things it is used for.

What we see today is a failure in these two areas and it is killing the usefulness of copyright.

I closed the lecture by presented a list of changes I would like to see in relation to copyright law.

Free Digitalization of cultural artifacts: There should be no additional copyright protection for simply digitalizing anything in the public domain. Also material bought and paid for by Public Service radio and tv should be released freely much earlier than today.
Limit terms of protection: Some copyrightable stuff is pointless and irrelevant as it is produced. Most is pointless and irrelevant and forgotten within five years. So 70 years after death is simply ridiculous. Sure some will suffer but today the few are supported at the cost of the many. The well known are pushing the obscure into the vacuum of the eternally forgotten.
Allow refusal of copyright: If you do not want to copyright something you should not have to! Freedom should be a default.
Allow creative use: Increased rights of fair use. Nordic law does not allow the quotation of images and video clips. This is a simple oversight which the legislators could not imagine that we would need when they enacted the law 50 years ago.
Public domain protections: There is no term for the concept public domain in Nordic languages. This means that the public domain – which is under attack everywhere – is handicapped in all discussions since there is no accepted term of reference. The default is copyright, this is not a level playing field upon which to have a discussion.
Resolve Orphan works problem: Seriously! Do it. Do it now!
Promote Multiple Creators: Copyright is built on the myth of the single author. The content creation of today is much wider. Recognize the fact that multiple creators exist and need to be supported.
Folklore & traditional knowledge: end cultural imperialism…

It was a great lecture with an interesting discussion that lasted well into the night. Thank you SERI.

Posted on by mklang

What happens to works when they fall into the public domain?

This is a “wishing I was there post. So if you are anywhere near to London on 23 of March then I recommend the seminar/lecture “What happens to works when they fall into the public domain?”

This is from The 1709 Blog

…the seminar on this question, which it trailed here, now has a venue.  To refresh memories, the speaker is blog team member Jeremy’s friend, Professor Paul J. Heald, of the University of Georgia Law School, who presents some of his thoughts and — more importantly — the fruits of some of his own research.

The date of the seminar is Wednesday 23 March and it will be hosted in the lovely, airy room up on the sixth seventh floor of Olswang LLP’s offices at 90 High Holborn, London.  Registration begins at 5pm; the seminar starts at 5.30pm and, following questions and discussion, will end by 7pm.  Refreshments will be provided.

Admission to this seminar is free. To register, email Jeremy here and let him know (using the subject line ‘Heald Reg’).

Posted on by mklang

WIPO speaks of activism

Francis Gurry the Director General of the World Intellectual Property Organization gave a presentation on The Future of Copyright (Sydney, February 25, 2011) in which he says:

Adaptation in this instance requires, in my view, activism. I am firmly of the view that a passive and reactive approach to copyright and the digital revolution entails the major risk that policy outcomes will be determined by a Darwinian process of the survival of the fittest business model. The fittest business model may turn out to be the one that achieves or respects the right social balances in cultural policy. It may also, however, turn out not to respect those balances. The balances should not, in other words, be left to the chances of technological possibility and business evolution. They should, rather, be established through a conscious policy response.

Interesting perspective for the copyright organization.

Posted on by mklang

Koons ends dog dispute

Not long ago I wrote about the rather strange case of Jeff Koons balloon dogs. Koons has built much of his artistic reputation around the creative reuse of other peoples copyrighted work. So it was rather surprising to find him initiated a copyright violation case. The case is obviously strange because Koons’ work is basically a hard copy of the traditional balloon dog made by any clown with a long balloon.

Koons’ lawyers have now backed off and decided not to go forward under the condition that the objects were not sold as “Koons’ dog” – which they were not doing even prior to receiving the legal letter. Park Life writes:

Bloggers largely scoffed at the threat, but Park Life decided not to just sit around and see if Mr. Koons would sue. On January 20, its lawyer, Jedediah Wakefield of Fenwick and West, working pro bono, sued Jeff Koons LLC in San Francisco federal court, asking the court to declare that Park Life wasn’t infringing on Mr. Koons’s i rights. “They very quickly indicated they weren’t interested in putting up a fight,” Mr. Wakefield said of Mr. Koons’s lawyers. Ultimately, Jeff Koons LLC agreed not to pursue the gallery for the sale of the bookends, and the gallery agreed not to indicate that the bookends were by Mr. Koons, which, Mr. Wakefield added, “they hadn’t done and weren’t going to do anyway.” As a result of the deal, he said, he was planning to file on Thursday for a dismissal of the declaratory judgment suit.

Posted on by mklang

Koons stikes back

A couple of days ago I mentioned the Jeff Koons lawsuits in a post on the problem of copyright in appropriation art. Usually people are angry with Jeff Koons for using and abusing their work in his creative process. Interestingly now it’s Koons who is attempting to use copyright to stop other people using his art.

Art and Artifice write

just before Christmas Koons decided to take the initiative… His lawyers sent a cease and desist letter to Park Life a San Francisco shop for selling balloon dog book ends.

Besides the confusing fact that Koons is now the infringed the case is stranger by the fact that the shop is not the manufacturer or sole reseller of the product. Artinfo writes

The bookends, in fact, are manufactured by Toronto-based imm Living. They retail for $30, and are supposedly available in some 700 stores in the United States, according to an article on the dust-up in the Bay Citizen. The Park Life representative said that the original cease-and-desist letter demanded that the store hand over all remaining balloon dog merchandise to representatives of the artist.

Finally lets not forget what we are talking about: copies of balloon dogs…

New York Trip: Jeff Koons on the roof show by luccawithcheese

image: New York Trip: Jeff Koons on the roof show by luccawithcheese (CC BY NC SA)

is this then also copyright infringement?

Posted on by mklang

Lawyers vs Artists: Who defines copyright?

In texts there is a right to quote. In music there is not. In art – its complicated. One of the reasons is that text has always been easy to quote, music sampling has been discussed commercially for a long time but art has been slower. But what about now? With our digital toys the ability to create mashups and remixes is not in the realm of a limited number. How should copyright react to image quotes?

Artists have traditionally quoted themes and compositions. This copying has filled many roles: it has been part of the process of learning the craft, a homage to inspirational artists and a way to further a discussion by referring to, and re-interpreting, the past.

A recent exhibition at Tate Britain aimed to show that Turner quoted widely from the past. Michelangelo’s quoting of Laocoön in parts of the Sistine Chapel have even led to a theory that he in fact sculpted the work.

Pop artists like Roy Lichtenstein and Andy Warhol regularly quoted from popular culture. But this time copyright law had begun to react and the process of quoting in art was being brought before the courts. Warhol settled out of court after appropriating an image from the photographer Patricia Caulfield in his work Four Foot Flowers but his famous soup is generally seen as non-infringing.

When Jeff Koons took a photo and created the sculpture String of Puppies the photographer successfully sued for copyright infringement (Rogers v. Koons). But in 2006 Koons won a case were he quoted from the photographer Andrea Blanch in his work Niagara. The court found that he had sufficiently transformed the original so as to be considered fair use. For an interesting discussion on an important subsection of quoting: the appropriation of traditional/indigenous art read Rimmers Four Stories About Copyright Law and Appropriation Art.

How should quoting be understood?

From an artistic (or non-Copyright) perspective the issues of plagiarism and exclusivity seem to be more central to the artists. The general perspective seems to be that artists view copyright limitations to quoting as a free speech issue but there are no artistic licenses to use copyrighted images (beyond fair use). Landes makes the argument that – from a transaction cost perspective – the law should take into account the number of copies involved.

In contrast, when the appropriation artist makes many copies, he should be treated no differently from a firm that incorporates licensed images in products such as calendars, coffee mugs and beach towels.

Overexposure of a work can lead to loss of value. Wayne Hemingway writes in Just Above the Mantlepiece that mass-production is the enemy of art and supports his argument by giving the example of Tretchikoff:

Within two years of the paintings being reproduced in print form, Tretchikoff became relegated to lowbrow status. In fact, Tretchikoff’s decision to reproduce his prints . . . transformed the relationship between artist and purchaser to one between artist and a hundred-thousand purchasers.

Unfortunately attempting to discuss this from the point of view of number of copies does not really work in digital environments where 200 000 views of a YouTube clip is not a large number. There is an additional problem as much of the remixed works are free – or at least not sold by the creator.

Are artists the problem?

Another interesting problem is attempting to define “the artist”. Its easy enough to say that Jeff Koons is an artist. But is the creator of an image mashup an artist? And nomatter if you answer yes or no to that question: Will the creator of a mashup be seen as a artist in the future? How important is it really that copyright is there to help promote the production of works? And should limitations really be viewed as threats to culture and free speech?

Posted on by mklang

The importance of not losing

Each time free copyright licenses such as the GPL or the suit of Creative Commons licenses go to court and win we confirm that the legal theory behind the licenses is correct. In a strange way the courts take the position that they agree with the practice of law and licensing being established in practice. Naturally they would not agree if the practices were totally outlandish so in actual fact what we have is the establishment of a school of thought – a consensus. Or what Ludwik Fleck called a thought collective. In the thought collective an idea is proposed and eventually gains momentum until it becomes an established norm.

This is what happens every time a free license is tested by the legal system.

This is because despite their theory and their use the free copyright license remains a different school of thought – a modification of the past thought collective of the established copyright regime. The problem is that often established regimes are seen as laws of nature. Permanent and everlasting. We know that copyright has not always been and does not always have to be – and yet many modifications are viewed with intense suspicion.

There is a snappy quote attributed to Henry Kissinger on the differences between conventional forces and guerrilla forces:  the guerrilla wins if he does not lose. The conventional army loses if it does not win.

So free copyright licenses win in court but in reality they do not lose. We know when we have established them as a conventional norm not only when they keep winning in court but when they fact that they lose a day in court they are still seen as viable, valuable and an ordinary part of the copyright ecosystem.

Posted on by mklang

Happy Public Domain Day

The first of January is Public Domain Day. The purpose of celebrating this day is to remember the wealth of culture that enters into the public domain every year. The list this year includes notables such as  Walter Benjamin his The Work of Art in the Age of Mechanical Reproduction is incredibly thought provoking, Mikhail Bulgakov – yes its time to reread The Master and Margarita, the artist Paul Klee and the Swedish Selma Lagerlof.

The Center for the Study of the Public Domain at Duke University has a webpage dedicated to the day. The Center also points out that while in Europe works are entering the public domain changes in US law are preventing this from happening:

What is entering the public domain in the United States? Sadly, we will have nothing to celebrate this January 1st. Not a single published work is entering the public domain this year. Or next year. Or the year after. Or the year after that. In fact, in the United States, no publication will enter the public domain until 2019. And wherever in the world you live, you now have to wait a very long time for anything to reach the public domain. When the first copyright law was written in the United States, copyright lasted 14 years, renewable for another 14 years if the author wished. Jefferson or Madison could look at the books written by their contemporaries and confidently expect them to be in the public domain within a decade or two. Now? In the United States, as in most of the world, copyright lasts for the author’s lifetime, plus another 70 years. And we’ve changed the law so that every creative work is automatically copyrighted, even if the author does nothing. What do these laws mean to you? As you can read in our analysis here, they impose great (and in many cases entirely unnecessary) costs on creativity, on libraries and archives, on education and on scholarship. More broadly, they impose costs on our entire collective culture.

“We are the first generation to deny our own culture to ourselves. Almost no work created during your lifetime will, without conscious action by its creator, become available for you to reproduce or build upon.”

We have little reason to celebrate on Public Domain Day because our public domain has been shrinking, not growing. Samuel Beckett’s English-language version of Waiting for Godot, his existentialist play in which two characters wait for a Godot who never appears, was published in 1954 and would once have been entering the public domain on January 1, 2011. To quote Vladimir from the play: “But that is not the question. What are we doing here, that is the question. And we are blessed in this, that we happen to know the answer. Yes, in this immense confusion one thing alone is clear. We are waiting for Godot to come—” 56 years later, we are still waiting.

Posted on by mklang

ASCAPs charge of the light brigade

The charge of the light brigade was caused when bad leadership sent British cavalry on a disastrous, suicidal charge against superior Russian forces during the Crimean War (1854) (Wikipedia).

The American Society of Composers, Authors and Pubishers (ASCAP) is a typical collecting society. From its about page:

ASCAP is a membership association of more than 380,000 U.S. composers, songwriters, lyricists, and music publishers of every kind of music. Through agreements with affiliated international societies, ASCAP also represents hundreds of thousands of music creators worldwide. ASCAP is the only U.S. performing rights organization created and controlled by composers, songwriters and music publishers, with a Board of Directors elected by and from the membership.

Sounds nice, normal and peaceful. But this peaceful summer scene was shattered in June when ASCAP began mobilizing by asking for additional funds to support ASCAP’s Legislative Fund for the Arts (ALFA). Read part 1 of the letter here, and part 2 here (via BoingBoing 23 June) the letter from ASCAP’s president Paul Williams begins:

At this moment we are facing our biggest challenge ever. Many forces including Creative Commons, Public Knowledge, and the Electronic Frontier Foundation and technology companies with deep pockets are mobilizing to promote “copyleft” in order to undermine our “copyright”. They say they are advocates of consumer rights, but in truth these groups simply do not want to pay for the use of our music. Their mission is to spread the word that our music should be free.

This paragraph is so monumentally misguided its difficult to know where to start.

But lets jump in with: Copyleft is not anti-copyright or against copyright. Copyleft depends on copyright for its existence. Without copyright copyleft cannot work. Copyleft is commonly used in software programs where a programmer who creates software grants others permission to modify that software with the condition that any such modifications – if spread – must be spread under the same conditions. In other words if you take the software I have created and make modifications and then spread that new software you must allow others to make modifications. If you cannot do this you cannot make modifications of my software. That is copyleft. And it is only enforceable because of copyright. In Creative Commons licensing the equivalent to the copyleft term is the share-alike requirement. The story is the same. If I create music and license it under a CC license with a share-alike requirement you can make modifications to that music and spread them but there is a condition that you must allow others to modify the music you and I have created. If you cannot allow this then you cannot use the music I created. So copyleft cannot pose any threat to copyright or to ASCAP’s members.

The organizations that ASCAP wants to fight are also a mystery. Creative Commons is the organization behind Creative Commons licenses which are dependent on copyright. The next two are even more bizarre Public Knowledge, and the Electronic Frontier Foundation are consumer & digital rights groups. They fight for civil rights and technology. What is obvious is that ASCAP either does not understand the first thing about what they think they are “fighting” or maybe they are choosing to be ignorant in the hope that their members will think its sounds good in a classic scare-mongering tactic?

Naturally the replies were not long in coming. Eric Steuer (Creative Director at Creative Commons) wrote a Response to ASCAP’s deceptive claims (30 June)

Last week, the American Society of Composers, Authors and Publishers (ASCAP) sent a fundraising letter to its members calling on them to fight “opponents” such as Creative Commons, falsely claiming that we work to undermine copyright.*

Creative Commons licenses are copyright licenses – plain and simple. Period. CC licenses are legal tools that creators can use to offer certain usage rights to the public, while reserving other rights. Without copyright, these tools don’t work. Artists and record labels that want to make their music available to the public for certain uses, like noncommercial sharing or remixing, should consider using CC licenses. Artists and labels that want to reserve all of their copyright rights should absolutely not use CC licenses.

Many musicians, including acts like Nine Inch Nails, Beastie Boys, Youssou N’Dour, Tone, Curt Smith, David Byrne, Radiohead, Yunyu, Kristin Hersh, and Snoop Dogg, have used Creative Commons licenses to share with the public. These musicians aren’t looking to stop making money from their music. In fact, many of the artists who use CC licenses are also members of collecting societies, including ASCAP. That’s how we first heard about this smear campaign – many musicians that support Creative Commons received the email and forwarded it to us. Some of them even included a donation to Creative Commons.

Lawrence Lessig reacted quickly (10 July) to the letter in The Huffington Post :

As a founding board member of two of those three organizations, and former board member of the third, I guess I should be proud that a 96 year old organization would be so terrified of our work. And I would be — if there were anything in this fundraising pitch that was actually true.

But there is not. Creative Commons, Public Knowledge and EFF are not aiming to “undermine” copyright; they are not spreading the word that “music should be free”; and there is certainly not yet any rally within Congress in favor of any of the issues that these groups do push.

Lessig then moves to a concrete suggestion:

This isn’t the first time that ASCAP has misrepresented the objectives of our organization. But could we make it the last? We have no objection to collecting societies: They too were an innovative and voluntary solution (in America at least) to a challenging copyright problem created by new technologies. And I at least am confident that collecting societies will be a part of the copyright landscape forever.

So here’s my challenge, ASCAP President Paul Williams: Let’s address our differences the way decent souls do. In a debate. I’m a big fan of yours, and If you’ll grant me the permission, I’d even be willing to sing one of your songs (or not) if you’ll accept my challenge of a debate. We could ask the New York Public Library to host the event. I am willing to do whatever I can to accommodate your schedule.

Let’s meet and address these perceived differences with honesty and good faith. No doubt we have disagreements (for instance, I love rainy days, and Mondays rarely get me down). But on the issues that your organization and mine care about, there should be no difference worthy of an attack.

Paul Williams posted his reply on the ASCAP website (19 July)

Anti-copyright crusaders are currently engaged in a publicity campaign to discredit ASCAP’s efforts to defend the copyrights of our professional songwriter and composer members…

Because of the respect I have for ASCAP’s members and the trust they have put in me, I am focused on those activities that will further ASCAP’s goals to work for fair compensation to music creators for the use of their music.

I don’t believe a debate with Lawrence Lessig will serve that purpose.

I am well aware of those “copyleft” mouthpieces who take a highly critical view of ASCAP’s efforts to protect our members’ rights. That will not change ASCAP’s commitment to doing so. ASCAP exists for one purpose — fair payment to music creators for the use of their music by businesses and others who seek to attract viewers and customers. ASCAP has long welcomed and licensed new technological means of performing its members works, seeking only reasonable fees for those performances. Our members have every right to give their music away for free if they choose, but they should not be forced to do so.

What I find most fascinating is that those who purport to support a climate of free culture work so hard to silence opposing points of view. They will not silence me.”

Instead of addressing any of the errors – which have been pointed out by several people -they continue to repeat the patently wrong statements. When a public person makes a error of this magnitude it is a given that bloggers who know anything about the area are going to be critical – this is the basis for free speech and open society – this criticism is hardly a “…a publicity campaign to discredit ASCAP’s efforts to defend the copyrights…”

The closing letter is amazingly weird – being invited to participate in a debate is the opposite of being silenced!! Being invited to a debate is obviously a mark of respect of ones opponent and respect for the whole open and free speech process. The lack of interest for this process and the ignorance about the “enemies” of ASCAP should be enough to question Williams suitability as a spokesperson.

Seeing the charge of the light brigade French Marshal Pierre Bosquet said “C’est magnifique, mais ce n’est pas la guerre. C’est de la folie” — ” (It is magnificent, but it is not war it is madness) (Wikipedia)

Tennyson wrote the poem: The Charge of the Light Brigade:

Half a league, half a league,
Half a league onward,
All in the valley of Death
Rode the six hundred.
“Forward, the Light Brigade!
“Charge for the guns!” he said:
Into the valley of Death
Rode the six hundred.

“Forward, the Light Brigade!”
Was there a man dismay’d?
Not tho’ the soldier knew
Someone had blunder’d:
Theirs not to make reply,
Theirs not to reason why,
Theirs but to do and die:
Into the valley of Death
Rode the six hundred.

Cannon to right of them,
Cannon to left of them,
Cannon in front of them
Volley’d and thunder’d;
Storm’d at with shot and shell,
Boldly they rode and well,
Into the jaws of Death,
Into the mouth of Hell
Rode the six hundred.

Flash’d all their sabres bare,
Flash’d as they turn’d in air,
Sabring the gunners there,
Charging an army, while
All the world wonder’d:
Plunged in the battery-smoke
Right thro’ the line they broke;
Cossack and Russian
Reel’d from the sabre stroke
Shatter’d and sunder’d.
Then they rode back, but not
Not the six hundred.

Cannon to right of them,
Cannon to left of them,
Cannon behind them
Volley’d and thunder’d;
Storm’d at with shot and shell,
While horse and hero fell,
They that had fought so well
Came thro’ the jaws of Death
Back from the mouth of Hell,
All that was left of them,
Left of six hundred.

When can their glory fade?
O the wild charge they made!
All the world wondered.
Honor the charge they made,
Honor the Light Brigade,
Noble six hundred.

Posted on by mklang

Privilege and Property

Copyright is a never ending area of fascinating discussion. Just when you think that you have read enough another interesting work sails across the screen. The collection of essays Privilege and Property. Essays on the History of Copyright recently came to my attention. The web blurb begins with:

What can and can’t be copied is a matter of law, but also of aesthetics, culture, and economics. The act of copying, and the creation and transaction of rights relating to it, evokes fundamental notions of communication and censorship, of authorship and ownership – of privilege and property.

The table of contents looks like this:

Introduction. The History of Copyright History: Notes from an Emerging Discipline by Martin Kretschmer, with Lionel Bently and Ronan Deazley
1. From Gunpowder to Print: The Common Origins of Copyright and Patent by Joanna Kostylo
2. ‘A Mongrel of Early Modern Copyright’: Scotland in European Perspective by Alastair J. Mann
3. The Public Sphere and the Emergence of Copyright: Areopagitica, the Stationers’ Company, and the Statute of Anne by Mark Rose
4. Early American Printing Privileges. The Ambivalent Origins of Authors’ Copyright in America by Oren Bracha
5. Author and Work in the French Print Privileges System: Some Milestones by Laurent Pfister
6. A Venetian Experiment on Perpetual Copyright by Maurizio Borghi
7. Copyright Formalities and the Reasons for their Decline in Nineteenth Century Europe by Stef van Gompel
8. The Berlin Publisher Friedrich Nicolai and the Reprinting Sections of the Prussian Statute Book of 1794 by Friedemann Kawohl
9. Nineteenth Century Controversies Relating to the Protection of Artistic Property in France by Frédéric Rideau
10. Maps, Views and Ornament: Visualising Property in Art and Law. The Case of Pre-modern France by Katie Scott
11. Breaking the Mould? The Radical Nature of the Fine Arts Copyright Bill 1862 by Ronan Deazley
12. ‘Neither Bolt nor Chain, Iron Safe nor Private Watchman, Can Prevent the Theft of Words’: The Birth of the Performing Right in Britain by Isabella Alexander
13. The Return of the Commons – Copyright History as a Common Source by  Karl-Nikolaus Peifer
14. The Significance of Copyright History for Publishing History and Historians by John Feather
15. Metaphors of Intellectual Property by William St Clair

The book is edited by Ronan Deazley, Martin Kretschmer & Lionel Bently and published by Open Book Publishers and has a Creative Commons NC-ND license the pdf is here. Even after a quick scroll through the file the book seems to be a must read.

Posted on by mklang