joegratz.net

July 26, 2005

Unheard Beethoven

Ann Bartow at Sivacracy.net points to the Unheard Beethoven project, an extremely cool, two-man quest to make available MIDI files of all of the hundreds of Beethoven’s works that have never been recorded.

I’ve been familiar with the project for a while, since it’s run in part by Mark Zimmer, who coached the quiz bowl team I was on while studying at UW-Madison. (Among UW quizbowlers, Zimmer is known affectionately as “Death”, for somewhat obscure reasons. He is awesome.) I hadn’t recalled that Death placed a rather cool copyright license on the Beethoven files:

While the Unheard Beethoven website is dedicated to the dissemination of Beethoven’s work as widely as possible, the content of this site and all MIDI files contained on this site are copyrighted by Mark S. Zimmer and/or Willem (aka xickx). Fair use of these MIDI files is encouraged; we ask, however, that in connection with any such use that the arranger of that particular MIDI file be credited and the URL of the Unheard Beethoven website be listed. Bulk download and copying and/or distribution of the MIDI files on this site is strictly prohibited. No more than 25 MIDI files may be downloaded or copied in any one day by one entity without the permission(s) of the copyright holder(s).

Seems reasonable. Whether a note-for-note MIDI copy of a Beethoven work is copyrightable is a debatable question (though I understand that much of what Zimmer and his coterie have done has required substantial interpretive originality).

Hey Death — thought about a Creative Commons Attribution 2.5 license for those files?

July 19, 2005

Dvorak on Creative Commons: “Humbug!”

John C. Dvorak recently published this column criticizing Creative Commons. Some of his criticisms are valid; others, based on a misunderstanding of the Creative Commons licenses or the role of Creative Commons as an organization; others still, based on dangerous misconceptions about the law.

Dubbed Creative Commons, this system is some sort of secondary copyright license that, as far as I can tell, does absolutely nothing but threaten the already tenuous “fair use” provisos of existing copyright law. This is one of the dumbest initiatives ever put forth by the tech community. I mean seriously dumb. Eye-rolling dumb on the same scale as believing the Emperor is wearing fabulous new clothes.

If we cut through the prose here, we find that Dvorak worries that Creative Commons licensing might limit users’ fair use rights. This is a misunderstanding of the license. The very first substantive paragraph of every Creative Commons license says, “Nothing in this license is intended to reduce, limit, or restrict any rights arising from fair use, first sale or other limitations on the exclusive rights of the copyright owner under copyright law or other applicable laws.” How any license that so prominently and so explicitly preserves users’ fair use rights could pose a threat to those rights is difficult to imagine.

I have sent notes to this operation and never received a reply, in case you’re wondering.

A valid criticism. Five minutes on the phone with a Creative Commons staffer, and this column would have looked very different.

There are several things that bother me about this initiative. First, Creative Commons is similar to a license. You sign up with the group and post a message saying that your material is protected or covered by Creative Commons.

Here, we have another misunderstanding of the license. Creative Commons is not “similar to a license”; Creative Commons is a provider of licenses that copyright holders may apply to their works. You do not “sign up with the group”; Creative Commons doesn’t need to know or track who is using their licenses, since the license is solely between the creator and the user. You do “post a message”; this message indicates under what terms you have chosen to license your work. While Creative Commons provides some facilities for authors to announce their works and the associated license terms, Creative Commons, as an organization, does not “protect” anyone’s copyrights. More on this in a moment.

This means that others have certain rights to reuse the material under a variety of provisos, mostly as long as the reuse is not for commercial purposes. Why not commercial purposes? What difference does it make, if everyone is free and easy about this? In other words, a noncommercial site could distribute a million copies of something and that’s okay, but a small commercial site cannot deliver two copies if it’s for commercial purposes. What is this telling me?

This is telling you that you misunderstand the license. Authors who make works available under Creative Commons licenses may choose from a number of restrictions on use. They may allow all use attributing the work to the author; they may or may not prohibit commercial use; they may or may not prohibit incorporation into another work, and so on. The license terms are chosen by each individual author. Dvorak is really asking why any author would choose to limit use to noncommercial purposes. As an author who licenses works (like the one you’re reading) under such a restriction, I can tell him: it’s because, if someone wants to have the potential to make money from my work outside the bounds of fair use, I want them to ask me first.

This is nonsense. Before Creative Commons I could always ask to reuse or mirror something. And that has not changed. And I could always use excerpts for commercial or noncommercial purposes. It’s called fair use. I can still do that, but Creative Commons seems to hint that with its license means that I cannot. At least not if I’m a commercial site and the noncommercial proviso is in effect.

As noted above, no Creative Commons license ever purports to limit fair use rights, and each license explicitly preserves all such rights.

This is a bogus suggestion, because Creative Commons does not supersede the copyright laws. In fact, the suggestion is dangerous, because if someone were sued by the Creative Commons folks over normal fair use and Creative Commons won the suit, then we’d all pay the price, as fair use would be eroded further.

A major misunderstanding of the role of Creative Commons as an organization. When you distribute a work under a Creative Commons license, you don’t give Creative Commons, as an organization, any special rights. If someone started distributing your CC-licensed song without attributing it to you, Creative Commons wouldn’t and couldn’t sue on your behalf. As it says in the text of every Creative Commons license, “Creative Commons is not a party to this License.”

There’s another thing that bugs me about Creative Commons. When you see its licenses the wording will say something like “Creative Commons License: Public domain.” This means that the item is not covered by copyright but is in the public domain. So what’s Creative Commons got to do with it? Public domain is public domain. It’s not something granted by Creative Commons. Yet you see this over and over as if it were!

A valid criticism, in my opinion. While Creative Commons does make available a Public Domain Dedication process, public domain status isn’t really a Creative Commons license, and nobody should refer to it as such.

Creative Commons trying to insert itself as another layer into a system that already protects content developers like me to an extreme. I mean my grandkids will own all my writing exclusively until 75 years after I’m dead, unless I sell all the rights to someone else. What more do I want from copyright?

As noted above, Creative Commons allows authors to grant more rights to the public, not to themselves.

And, yes, I think this term of protection is ridiculously long, but why would I as a content creator want Creative Commons? What does it bring to the party? It might make it easier for people to access my material and reprint some of it. But they do that already.

When it comes to text, like Dvorak’s column, fair use works pretty well to protect the user’s legitimate interests — for example, by allowing me to quote extensively from the piece to the extent necessary to criticize it. But fair use doesn’t let me record a new version of your song, or add a soundtrack to your video, or use your photo in a digital collage. Some creators want people to be able to do that, without asking first. That’s what it brings to the party.

If I have a complaint about copyright, it’s this: I think copyright laws need to get things such as Picasso art from 1924 back into the public domain, thus allowing reprints of books from 1930 without worrying about who owns the copyright. A lot of things are lost to the public domain because of the new laws. But Creative Commons has nothing to do with Picasso or anything else except new works.

Yes! Yes, that’s exactly right! That’s why, separately from Creative Commons, the Stanford Center for Internet and Society — also founded by Lessig — is working to get those Picasso works back into the public domain.

There was always something about Creative Commons and its name that bugged me, too. The name sounds like a variation of the once-powerful Common Cause political-action committee. A ring of days gone by—nostalgia. All I see here is making the very easy and simple U.S. copyright laws more complex for no apparent reason, except maybe as a protest.

That’s just silly.

Years ago, to gain a copyright, you had to fill out a form and send in the material to the Library of Congress. Now you just use the word “copyright,” add your name and a date, and publish it. What could be easier?

Here, we have a material misstatement of the law. A copyright attaches to any fixed creative work whether or not there is any notice of copyright (e.g., “Copyright Joe Gratz 2005. All rights reserved.”). Copyright holders can sometimes get more in a lawsuit if there was notice, but since 1989, notice has not been required. Copyright attaches automatically. That’s part of the reason we need Creative Commons licenses — because silence means “nobody may use this, except under fair use, until 70 years after I die.”.

Apparently simplicity was more than some people could handle, so they invented Creative Commons to add some artificial paperwork and complexity to the mechanism. And it seems to actually weaken the copyrights you have coming to you without Creative Commons. Oh, brother!

Yes, if the author so chooses, Creative Commons licenses weaken the copyright protection that’s applied by default. That’s the whole point. But they don’t increase complexity — they reduce it. If you want to make a use of the work that’s allowed by copyright laws, such as fair use, you may ignore the Creative Commons license terms and go ahead. If you want to make a use of the work that would otherwise be a copyright infringement, you’ll have to read the terms under which the author has chosen to license the work. If your use is allowed, you go ahead; if not, you have to ask permission.

A Creative Commons license is just a way of granting permission for certain otherwise-infringing uses ahead of time, so you don’t have to take the time and trouble to ask.

How I Decided To Fight For Technological Freedom

This post is part of the EFF’s 15th Anniversary Blog-a-thon.

It must have been September or October of 1993. I had recently turned 13, and had been BBSing for five years. Just that summer, I’d been introduced to the wonders of the nascent World Wide Web (who’d want to use that when all the good stuff was on Gopher?) and to 2600 Magazine. Like most 13-year-olds interested in computers at that time, I had more than a passing interest in computer security.

I, dear reader, was a lame wannabee hacker kiddie.

The library at my school had just been equipped with a cluster of networked computers, for searching the card catalog. Before class each morning, I’d stop in and tinker. I quickly figured out that the administrative and library networks were separated by network security, but that they were not physically separate. How cool it would be, I thought, if I could make a message pop up on all of the administrative computer screens in the school. Maybe just to say hello, maybe to play a prank, maybe to mock a classmate.

So I figured out how to do it, exploiting a small hole in the network security — the user “backup”, with password “backup”, seemed to have access to both the library and administrative networks. And, just before classes started one day, I sent a test message.

“Good morning!”

The computer froze, but maybe it was just a local problem. I headed for class.

I popped back in to the library at recess, and the librarian motioned me over.

“I saw you at that computer this morning. I have somebody you need to talk to.”

The librarian marched me down to the office of Trudi Marino, the network administrator. She told me that (for reasons that still elude me) sending that message from a library computer had brought the Novell server to a halt. All of the administrative assistants had lost their work since the last save, and the server had to be rebooted.

I hadn’t meant to do any harm, I explained — I was just poking around the network out of curiosity. I was sure I was going to be suspended. Maybe expelled.

And so it shocked me when Trudi told me to come back after school, so she could show me the server room. We became friends. She let me play with fast hardware; I helped her debug some hairy Compuserve login scripts and showed her around the local BBSes. She turned what could have been a black mark on my record into a great learning experience. This also, unsurprisingly, ended my hacker-kiddie days.

What does this all have to do with technological freedom and free expression online?

Well, for one, Trudi had just finished the second issue of this new bimonthly magazine, Wired, and she gave me her copy. That was the “crypto rebels” issue, and it was filled with exciting ways that brilliant people were hacking law and society as well as code. I was hooked — not just on the magazine, but also on the ideas.

But more importantly, the way Trudi dealt with me showed me that when those in power really understand technology, its possibilities, and the passionate fascination it inspires, they make different, better rules.

From that point on, I knew I wanted to make them understand.

Blog-a-thon tag:

July 13, 2005

Wendy

Well, there’s this. In totally unrelated news, Wendy Seltzer has suddenly become a staunch supporter of the Broadcast Flag, to prevent consumers from capturing video stills and posting them on the internet. :-)

July 12, 2005

Dire Warnings

As some of you know, I just moved into a wonderful apartment in the Hayes Valley neighborhood of San Francisco. Predictably, I’m getting some mail addressed to previous tenants. Today, I got a security envelope addressed to a previous tenant which was obviously a credit card solicitation (U.S. postage paid by Bank of America, the visible line through the envelope’s window speaks of pre-qualification).

On the front, it read:

IMPORTANT DATED MATERIAL ENCLOSED

Pretty standard for credit card solicitations. But on the back it said:

SECURITY NOTICE: Any person who interferes with or obstructs delivery of this letter or otherwise violates Title 18, United States Code 1702 may be fined up to $2,000 and/or be imprisoned for up to 5 years.

Whoo. Sounds serious. I’d better make sure this gets to its intended recipient, even if the same penalties apply if I were to interfere with delivery of the former tenant’s issues of Martha Stewart Living.

Not quite as irritating as this, but close. At least here, they’re referring to laws that actually apply.

July 8, 2005

Bob Dylan on the Commons: A Dialogue

Bob Dylan on the Commons. But see Bob Dylan on the Commons.

(Not to mention Bob Dylan in the Commons.)

SF Chronicle’s Jon Carroll on The Disappearing Transamerica Pyramid

San Francisco Chronicle columnist Jon Carroll writes today about the removal of the Transamerica Pyramid from San Francisco skyline shots in Bewitched. Why? It’s Transamerica’s trademark.

Silliness.

Read Carroll’s column; he deals very well and very concisely with a range of copyright and trademark issues facing filmmakers.

July 7, 2005

Extremely Weird European Patent License Conditions for BRCA2 Test

According to this story (via Jason Schultz), doctors administering a certain BRCA2 test in Europe will have to ask patients whether they are of Ashkenazi Jewish descent. A license fee is due under a patent held by Myriad Genetics only for tests performed on Ashkenazim.

As an Ashkenazi Jew myself, I’d find it supremely creepy if my doctor wanted to know about my heritage for purposes of patent licensing.

“Socialist”? Maybe. “Gulag”? Definitely not.

The story so far:

James DeLong of the Progress and Freedom Foundation, in a blog post on alternative compensation systems for copyright holders, said, in pertinent part:

“[C]ollective licensing or a media levy” is a euphemism for turning creativity into a socialist gulag.

Derek Slater and Ernest Miller responded here and here, respectively. Derek said:

I guess I missed the part in Professor Fisher’s book where people are worked to death in prison camps.

Ernie characterized DeLong’s “socialist gulag” metaphor as “grotesque hyperbole”.

Many commentators who make inapt, hyperbolic comparisons to grave human rights abuses have the prudence to retract or clarify their statements. Instead, DeLong defends it:

I would apply the epithet to any system in which creators and doers must beg government functionaries for permission to exercise control of themselves, their creations, or their property, and this permission can be granted or denied whimsically, according to the functionaries’ views of “the public good.”

Whether or not compulsory licensing represents good copyright policy can be debated by reasonable people. Whether any particular system of compulsory or collective licensing is economically efficient or susceptible to corruption is likewise a fair (and enjoyable) subject of debate. And whether government-granted copyright licenses are “socialist” depends entirely on the breadth of one’s definition of socialism.

But comparing government-administered licensing of copyrights to the Soviet Gulag is indefensible, and while he restates it, DeLong makes no attempt to justify his comparison. The followup post makes a weak but cogent case that Fisher’s proposal shares the drawbacks of a socialist economy, but the we’re still lacking a link to imprisonment, forced labor, starvation, and the like.

If DeLong wishes to make the case that some particular copyright licensing system leads inevitably to death by starvation in forced-labor camps, I invite him to do so. Otherwise, I will continue to see DeLong’s comparison for what it is: empty invective.

Florida Man Arrested For Using Open WiFi Network

According to this AP story, a Florida man was arrested and charged with “unauthorized access to a computer network”, a third-degree felony, for sitting in his car and using somebody’s open WiFi access point.

The relevant Florida statute appears to be section 815.06(1)(a), which says that anyone who does the following is guilty of a third-degree felony:

willfully, knowingly, and without authorization … [a]ccesses or causes to be accessed any computer, computer system, or computer network

The AP story doesn’t give all of the facts, so I’ll assume hypothetically that the defendant drove up in front of the house, opened his laptop looking for free WiFi, took affirmative action to connect to the network, and used the network to access the internet.

The defendant in my hypo probably accessed the network “willfully” and “knowingly” because accessing the network was his purpose. The real action seems likely to come when the court has to determine what “authorization” means. The defendant in my hypo could probably claim that he reasonably believed his use to be authorized, since leaving a WiFi network open and unsecured is generally understood to authorize passers-by to access the internet using that network.

Certainly, there could be good facts and bad facts on this issue; if the complaining witness had a big sign in his front window saying “Free WiFi! Enjoy!”, or if the complaining witness set his network name to “PleaseUseSparingly” (as I do), the prosecution would have a tough time. If the SSID was hidden or the network was encrypted and the defendant had cracked the encryption, the prosecution would have a very easy time proving lack of authorization.

But let’s say the complaining witness just took his wireless router out of the box, plugged it in, and let it sit there. Is there authorization now? Should it matter whether the complaining witness knew he was opening his network up to the world? Is access “without authorization” if the complaining witness acted in a way that he did not intend as authorization but that nonetheless was interpreted by the defendant, reasonably and in good faith, as authorization?

Criminal law isn’t my area of expertise, but this case seems to raise some very interesting questions related to the widespread operation of computer networks by people with little expertise in the operation of computer networks and little knowledge of the social and technical norms surrounding those networks.

UPDATE: Computer crime expert Jennifer Granick comments below, arguing that courts should read a statute like Florida’s to require that the defendant knew that his access was unauthorized to avoid this problem. A brief she filed on the subject is available here.

UPDATE 2: The St. Petersburg times has this story on the arrest.

Disclaimer Haiku:
West wind seems to say,
"This is not legal advice;
I'm not your lawyer."

(And if you're a client with whom I have a preexisting attorney-client relationship, this still isn't legal advice.)

In case you're wondering, this blog is also not intended as advertising, as a representation of anything but my personal opinion, or as an offer of representation.

Creative Commons License
This work is licensed under a Creative Commons Attribution-NonCommercial 2.5 License.
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