Category Archives: free culture

The 9th Circuit heard arguments today in our case Kahle v. Gonzales.

This case was filed after Eldred v. Ashcroft was decided. It is built upon the rule Eldred articulated.

If you remember, in Eldred, we raised a First Amendment challenge to Congress’ extension of existing copyright terms. Our argument was: “this is a regulation of speech; apply ordinary First Amendment review to the statute.”

The government argued the other extreme — no First Amendment review of a copyright statute. It argued the Court should affirm the DC Circuit’s rule that copyrights were “categorically immune from challenges under the First Amendment.”

The Court adopted neither position. It refused to apply ordinary First Amendment review to a copyright statute. But it also refused to exempt copyright statutes from First Amendment review. Instead, as the Court wrote:

To the extent such assertions [assertions where someone claims a right to “make other peoples’ speeches”] raise First Amendment concerns, copyright’s built-in free speech safeguards are generally adequate to address them. We recognize that the D.C. Circuit spoke too broadly when it declared copyrights “categorically immune from challenges under the First Amendment.” 239 F.3d, at 375. But when, as in this case, Congress has not altered the traditional contours of copyright protection, further First Amendment scrutiny is unnecessary.

This is a kind of tradition-triggered standard: So long as Congress stays within the “traditional contours of copyright protection,” then further First Amendment review is unnecessary. But if Congress changes a “traditional contour of copyright protection,” then the “built-in free speech safeguards” may not be sufficient.

We alleged a change in perhaps the most fundamental “traditional contour” of copyright protection — the shift from the opt-in system that copyright was from 1790=1976 to the opt-out system that copyright has become in the period since. Continue reading →

I hadn’t seen this piece when it came out in July. The Value of the Public Domain by Rufus Pollock is an excellent analysis of how one might quantify the value of the public domain. It nicely introduces what otherwise strikes many as counter intuitive. Highly recommended.

After reading Pollock’s piece, for example, it is much easier to see the fallacy in any public policy argument that tries to suggest there is an economic harm from failing to extend the term of an existing copyright. The key is the distinction between social value and individual value.

E.g., imagine a society that every year randomly selected 100 people, and sent them a check for $1m. The $100m needed to fund this program is raised each year by a tax on everyone within the society. Then some enterprising politician says: Hey, this is a waste of resources. Let’s stop this program. While it’s simple to see why such a change would be “Armageddon” for those in the $1m club, it would take lots of hand-waiving to argue (convincingly at least) that the change would be harmful to society.

Or remember how Macaulay (1841) put it (nicely reproduced in full by Eric Flint):

The principle of copyright is this. It is a tax on readers for the purpose of giving a bounty to writers. The tax is an exceedingly bad one; it is a tax on one of the most innocent and most salutary of human pleasures; and never let us forget, that a tax on innocent pleasures is a premium on vicious pleasures. I admit, however, the necessity of giving a bounty to genius and learning. In order to give such a bounty, I willingly submit even to this severe and burdensome tax. Nay, I am ready to increase the tax, if it can be shown that by so doing I should proportionally increase the bounty.

Me too. Absolutely. Taxes are awful, but necessary. Let’s have them where necessary, but only when necessary. And so why not have them to extend the term of an existing copyright? BECAUSE THIS IS A TAX THAT CANNOT “INCREASE THE BOUNTY.” The work is already produced. No matter what we do today, Elvis is not going to produce any more recordings in 1957. So it is a tax that benefits some plainly (those who get almost twice the term they originally bargained for), but benefits society not at all. I.e., a very bad tax. Continue reading →

Josh Silver has a very disturbing post on The Huffington Post about this memo. If you click through, you’ll see a memo from ABC listing companies that want their ads pulled from any station that carries Air America content. Continue reading →

So Nick Carr charges me with launching the Cultural Revolution, in a post dripping with references to the evils of communism, and with a triumphant close: “The Cultural Revolution is over. It ended before it even began, The victors are the counterrevolutionaries. And they have $1.65 billion to prove it.”

Wow.

The point of my Web 2.0 post is probably clearer to anyone who read my earlier post about the three economies of the Internet — commercial, sharing, and hybrid. As that post suggested, in my view, the really critical question for the Internet economy is how well companies negotiate the hybrid economy. In my view, those who follow Web 2.0 values are likely to profit most; those who don’t, won’t. Thus, when David Bowie tries to jump into the mashup/remix world by offering prizes for the best remix of his content, but demanding the rights to all the creativity produced by the remixers, he’s violating a Web 2.0 principle, and by doing so, weakening the extraordinary potential his effort could have. Put differently, sharecropping is no better a strategy for the virtual world than it was in the physical world.

Yet if you don’t see that there are different economies, then of course if follows that any effort to argue in favor of less control sounds just like communism. (Not technically, of course, because the control under all the communism we’ve seen was shifted to the state, it wasn’t eliminated. But this is a detail red-baiters often overlook). If there is just the commercial economy, then an argument in favor of exercising less control over content sounds just stupid — like arguing to GM that it should give every 5th car away for free.

But if you really don’t see that there are different economies, then I suggest you spend sometime reading the very best scholarship about what’s new about the Internet. Benkler, Weber, and von Hippel are my favorite examples; though not directly on point, much in Chris Anderson’s The Long Tail points in the same direction.

And if you don’t have time to read, then ask yourself a simple question: Is Jimmy Wales a communist? (Anyone who knows him knows how absurd the question is, but even if you don’t know him, you can figure it out.) There is no better, more effective advocate for the sharing economy. The project he’s helped steward — Wikipedia — is perhaps the sharing economy’s prize. But when he advises companies, and others trying to use the net, how best to build upon the value of the Internet, is he just doing Chairman Mao’s work?

I hope YouTube is an extraordinary success — much bigger than it has been so far. (Carr says YouTube is my “villain.” I must really be confused, because in the very same week, YouTube was my hero). It will be so, I believe, if it plays by the rules of the hybrid economy. A hybrid neither gives away everything, nor does it keep everything. And I’d suggest we’ll find that golden mean more quickly if we left the red-baiting to the 20th century. Continue reading →

In Free Culture, chapter 9, I wrote the following:

In addition to the Internet Archive, Kahle has been constructing theTelevision Archive. Television, it turns out, is even more ephemeral than the Internet. While much of twentieth- century culture was constructed through television, only a tiny proportion of that culture is available for anyone to see today. Three hours of news are recorded each evening by Vanderbilt University – thanks to a specific exemption in the copyright law. That content is indexed, and is available to scholars for a very low fee. “But other than that, [television] is almost unavailable,” Kahle told me. “If you were Barbara Walters you could get access to [the archives], but if you are just a graduate student?”

As Kahle put it,”Do you remember when Dan Quayle was interacting with Murphy Brown? Remember that back and forth surreal experience of a politician interacting with a fictional television character? If you were a graduate student wanting to study that, and you wanted to get those original back and forth exchanges between the two, the 60 Minutes episode that came out after it … it would be almost impossible. … Those materials are almost unfindable. …”

Jeff Ubois has just published a paper about his effort to find out whether Brewster was right. His conclusion: Brewster’s right. As he writes:

I searched for footage of the Quayle/Brown interaction with an eye towards making some general assessments of the accessibility of historic broadcasts, and detailed the results in a paper called Finding Murphy Brown: How Accessible are Historic Television Broadcasts? It’s finally out this week in the peer reviewed Journal of Digital Information….

Copyright restrictions ultimately made it impossible to get the original Dan Quayle speech, or the Murphy Brown episodes in question. In an odd coda to this project, one digital library journal (from which I withdrew this paper) insisted that the correspondence detailing refusals by various organizations to allow access to or use of the Quayle/Brown footage was itself copyrighted, and therefore unsuitable for publication. Those excerpts are included in the current piece. It was disturbing how one effect of copyright law is to chill academic discussions of copyright law.

You can read the paper by linking from the blog entry.

(Thanks, Jeff!) Continue reading →

So there’s an important distinction developing among “user generated content” sites — the distinction between sites that permit “true sharing” and those that permit only what I’ll call “fake sharing.”

A “true sharing” site doesn’t try to exercise ultimate control over the content it serves. It permits, in other words, content to move as users choose.

A “fake sharing” site, by contrast, gives you tools to make seem as if there’s sharing, but in fact, all the tools drive traffic and control back to a single site.

In this sense, YouTube is a fake sharing site, while Flickr, (parts of) Google, blip.tv, Revver and EyeSpot are true sharing sites.

Fake Sharing Sites

YouTube gives users very cool code to either “embed” content on other sites, or to effectively send links of content to other sites. But never does the system give users an easy way to actually get the content someone else has uploaded. Of course, many have begun building hacks to suck content off of the YouTube site. (On the Mac, I’ve used TubeSock to do that). But this functionality — critical to true sharing — is not built into the YouTube system.

True Sharing Sites

By contrast, ever other major Web 2.0 company does expressly enable true sharing.

• Flickr, for example, makes it simple to download Flickr images. (See, e.g., here.)
• blip.tv explicitly offers links to download various formats of the videos it shares. (See, e.g., here.)
• EyeSpot (a fantastic new site to enable web based remixing of video and audio) permits the download of the source and product files. (See, e.g., here.)
• Revver (the site that enables an ad-bug to be added to a video so the creator gets paid when each video is played) builds its whole business model on the idea that content can flow freely on the Net. (See, e.g., here.)
• And even Google increasingly enables access to the content it creates and collects. Its fantastic Book Search project enables people to download (funnily formatted) PDFs of public domain books. (I know this link used to work, but now that I’m in Germany, Google is obviously not permitting me access to the work because it is so insanely hard to know whether it is in the public domain anywhere else.) And I am told (though I’ve not yet seen how to do it), Google Videos can be download to a machine.

This difference, I suggest, in business models should be a focus of those keen to push the values of Web 2.0. Though Tim O’Reilly’s canonical statement of those values implies this freedom is necessary, it doesn’t really expressly say so. The freedom to access the content seems, in my view, related to the Web 2.0 principle that “the service automatically gets better the more people use it.” Or at least the right to access it if the author chooses (another Web 2.0 principle: Some Rights Reserved) seems essential for this ethic to make sense. As O’Reilly puts it, “Design for ‘hackability’ and ‘remixability'” — precisely what hoarding content doesn’t do.

If YouTube is a trend, this is a depressing turn. No doubt, that amazing company has a billion things to think through (including what to do with more than a billion dollars). But one thing it really needs to keep in focus is a very important part of its success: That it was seen to respect the ethics of the web. Why post on YouTube rather Google Video? At least some did so because YouTube was “cooler.” Whether it continues to be as cool depends critically on the values it practices.

UPDATE: Joi has a fantastically thoughtful followup on this. Continue reading →

FreeCulture.org (the student movement pushing free culture issues) ran a “Down With DRM” video contest. Winners are here. These are extremely clever. Continue reading →

One of the most important conclusions that can be drawn from the work of Benkler, von Hippel, Weber (my review of both is here), and many others is that the Internet has reminded us that we live not just in one economy, but at least two. One economy is the traditional “commercial economy,” an economy regulated by the quid pro quo: I’ll do this (work, write, sing, etc.) in exchange for money. Another economy is (the names are many) the (a) amateur economy, (b) sharing economy, (c) social production economy, (d) noncommercial economy, or (e) p2p economy. This second economy (however you name it, I’m just going to call it the “second economy”) is the economy of Wikipedia, most FLOSS development, the work of amateur astronomers, etc. It has a different, more complicated logic too it than the commercial economy. If you tried to translate all interactions in this second economy into the frame of the commercial economy, you’d kill it.

Having now seen the extraordinary value of this second economy, I think most would agree we need to think lots about how best to encourage it — what techniques are needed to call it into life, how is it sustained, what makes it flourish. I don’t think anyone knows exactly how to do it well. Those living in real second economy communities (such as Wikipedia) have a good intuition about it.

But a second and also extremely difficult problem is how, or whether, the economies can be linked. Is there a way to cross over from the commercial to second economy? Is there a way to manage a hybrid economy — one that tries to manage this link.

The challenge of the hybrid economy is what Mozilla, RedHat, Second Life, MySpace are struggling with all the time. How can you continue to inspire the creative work of the second economy, while also expanding the value of the commercial economy? This is, in my view, a different challenge from the challenge of how you call this second economy into being, but obviously, they are related. But this challenge too is one I don’t think anyone yet understands fully.

As I watch Creative Commons develop, I’ve been encouraged by the experiments that try to find a way to preserve this second economy, while enabling links to the first. I wrote before about Yehuda Berlinger who had set IP law to verse. In that post, I nudged him to adopt a CC license. He did, but he did so in a very interesting way. As his site now reads:

This work is licensed under a Creative Commons Attribution-NonCommercial 2.5 License. Attribution should include a live link to this blog post, whenever possible; text link otherwise. License for commercial usage also available from the owner.

This idea is one we’re experimenting with at CC — a NC license that explicitly includes a link to another site to enable commercial licensing. It is one way to preserve the separation of these separate spheres. I’d be eager to hear about other ways you might think better.

But the important point to recognize is that this effort to preserve the separation is fundamentally different from the effort of many in the “free software” or “free content” movement who want all “free” licenses to permit any sort of use, commercial or not. Imho, they are simply ignoring an important reality about the difference between these two economies. Indeed, they’re making the opposite mistake that many in the commercial world make: Just as many commercial rights holders believe every single use of creative work ought to be regulated by copyright (see, e.g., the push to force what are plainly “fair uses” of copyrighted work on YouTube to pay the copyright owners), so too these advocates of “free content” would push everyone to treat everything as if it is free of copyright regulation (effectively, if not technically). Second economy sorts believe differently — that some uses should be free, and others should be with permission.

It is because I have enormous respect for those who make the latter mistake (and believe their motives are more likely pure) that I urge them to consider the radical simplification of social life they insist we push on the world. I like the dynamics of the second economy. Benkler has given it a theory. I think we should be working to support it, not pretending that it is not there.

The obvious reply (and the real puzzle for me) is FLOSS. I said at the start it effectively operated in the second economy. But the “free content” movement that I’m skeptical of is simply trying to push the norms of FLOSS into the content space. How could it then be any different?

In my view, the difference comes from the difference in nature of the stuff. Some cultural production can be collaborative in exactly the way FLOSS is — Wikipedia. But you need an argument to get from some to all. No doubt, I too need an argument that some is different from some. I don’t have that yet. But it is here that I think the really important discussion needs to happen.

Oh, and by the way, Yehuda has added Trademark Law to his verses. Continue reading →

David Goodger has created this SVG. The source is available here. This image is licensed CC BY-NC-SA. Others at his site are in the public domain. Continue reading →

Like just about everybody, I’m a big Wikipedia fan. (Indeed, Code v2 is dedicated to the project.) And so I was extremely happy to read that Aaron Swartz is running for the board. Aaron was one of the early architects of CC. But his talent is much more than technical. He is a brilliantly independent and clear thinker; takes bullshit from no one; and has a deep and reflective view about all things Net. I’m sure this is true of more than one person, but he would make an outstanding addition to the board. Continue reading →