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August 25, 2006

The Audio Public Domain Grows

The New York Times has a very nice story today on LibriVox, a project working to create volunteer-read, public domain MP3 audio books. The project uses texts from Project Gutenberg, and the recordings’ complexity ranges from a solo recording of nonsense verse “The Purple Cow” to a full-cast recording of Hamlet.

I came across the project this past spring and recorded one letter’s worth of definitions from The Devil’s Dictionary by Ambrose Bierce — an old favorite. The recording is being checked and combined with others’ contributions, and should be released soon. Among its other volunteer constituencies, LibriVox makes a great hobby for pedantic old hams like me.

It’s wonderful to see how people are squeezing as much utility as possible out of the frozen pool of public domain works we’re left with after the last 30 years of legislation. Imagine what could be done if the public domain were larger!

August 15, 2006

Upcoming Liveblogging: the Bandwidth Conference

This Friday and Saturday, I’ll be liveblogging from the Bandwidth Conference here in San Francisco. The conference’s slogan is a thing of unimpeachable beauty: “Music. Technology. Cocktails.” The speaker schedule is here. There are two speaking tracks, and I won’t be able to make it to everything, but expect in-depth coverage of the sessions on this blog’s core subject matter — technology and law in service of art.

I’ll also be moderating a panel at the Bandwidth Shindig on Sunday. While the Bandwidth Conference is an industry event requiring registration, the Bandwidth Shindig’s educational panels are free and open to the public, covering more mainstream subjects. My panel is called “Download on Download: Getting Your Music Online and Getting It Heard”. The panel will include Windy Chien of the iTunes Music Store, Tim Mitchell of IODA, and Ali Partovi of Garageband. It will take place at 2:00 PM on Sunday, August 20 at the downtown San Francisco Apple Store. I hope to see you there!

July 9, 2006

D. Colo.: CleanFlicks Infringes Movie Copyrights

Judge Richard P. Matsch of the United States District Court for the District of Colorado on Wednesday filed this opinion granting partial summary judgment in favor of the movie studios, finding that CleanFlicks infringes copyright. This is not a terribly surprising result; CleanFlicks’ business involves selling edited DVD-Rs of Hollywood movies, buying and warehousing one authorized DVD of the movie for each edited copy it sells.

Trouble is — according to Judge Matsch — that’s infringement. While the First Sale Doctrine protects resellers from copyright liability, CleanFlicks is doing more than reselling. They’re making unauthorized copies. Maybe otherwise-infringing copies should be legal if one authorized copy is warehoused or destroyed for each unauthorized copy made, but that’s not the current state of the law. (If it were, there would be pretty nasty proof problems involved in keeping copiers from playing with their numbers.)

Judge Matsch also marched through the fair use factors, properly recognizing that they represent only a part of the Fair Use Doctrine. His transformativity analysis was rather unsatisfying; it seems that, in Judge Matsch’s view, only additions of content, not deletions, can be transformative. I agree that these particular deletions were not transformative, but the opinion’s language is overly broad.

The EFF filed submitted an amicus brief seeking to rebut the studios’ argument that “the intermediate hard drive copies allegedly [used] to create [CleanFlicks'] final products violate a copyright holder’s exclusive right of reproduction[.]” The brief was successful; the court focused on the DVD-R copies CleanFlicks made, ignoring the intermediate copying in its infringement analysis. [Derek points out in the comments that the MPAA conceded the intermediate copying issue when the EFF moved to file its amicus brief, so the motion was denied as moot. Same outcome, different back-story.]
It’s notable that the injunction is based entirely on the infringement of the studios’ section 106(1) right of reproduction and the section 106(3) right of distribution; the court denied the studios’ summary judgment motion on their section 106(2) claim that CleanFlicks had created infringing derivative works. Sadly, this holding isn’t discussed much.

CleanFlicks has argued that an injunction like the one granted here will put it out of business. It remains to be seen whether they will be around to appeal.

March 12, 2006

Cultural Environmentalism at Ten: Rebecca Tushnet

I’m at day 2 of the Cultural Environmentalism at Ten conference. The first speaker this morning is Rebecca Tushnet. My not-for-attribution notes follow.

I found fandom in 1987. I also invented it in 1980 in my room. Every fan invents fandom, just like everyone falls in love for the first time. How do we reconcile this with an IP system that cares whether you’re the first or the second person to recite a poem? Let’s look at patterns and processes of creativity as they’re actually experienced (by wealthy, white internet users). Let’s look at their practices to see how people understand the nature of authorship.

Example to structure the discussion: Razzle Dazzle (from Chicago), but a music video made of old Star Trek clips.

What did they do? The thing that made you laugh was the selection and arrangement of elements the videomakers didn’t create. Within the fandom community, people like this shed new light on preexisting texts. It’s a non-transformative use of the song, though. This is a slightly different way of looking at authorship (the credits at the beginning credited Richard Gere and the videomakers). The romantic author conquers virgin territory, makes something from nothing — male. The romance author is elaborating, embroidering — female. It’s a binary, and that’s troublesome. Romance authorship is about the execution, like any genre work. “Originality” means executing in a new way.

Media fandom has aesthetics — several competing aesthetics — that accept an author function that doesn’t require any concept of conventional ownership of the resulting product. Fans attribute, fans don’t reuse each other’s products, distinguishing between “within” and “without”. What about reusing somebody else’s Mary Sue? The norm is seeking permission. For video (“vidding”), it’s even stronger — don’t reuse someone else’s editing at all.

Why treat inward differently from outward? First, simple selfishness.

Why is this OK? Experiences reach out and grab us. We connect to media and they become part of us, and they’re designed to do so. Thus, it’s fair to engage with a public text in this way. Second, “it’s noncommercial”. This is problematic, since it cements a lower status. But this status helps form community, with a common enemy. Also, it establishes norms.

What are the obligations? Not permission from outside. No reuse inside. The other one is attribution. It can be necessarily implied, as with a Star Trek vid. There are attribution norms in lots of places where control doesn’t happen — here, but also academia. They can be quite context-sensitive, too, and there are formal guidelines for certain fields (e.g. AHA guidelines for history). Also, french chefs.

And importantly, the Copyright Office orphan works proposal. It requires reasonable search and attribution. How did this get in there, with almost no comments? The CO proposed it at the roundtables and met with general agreement. But it cuts both ways, especially with orphan works. But what if you don’t know, or don’t know for sure? “This might be a Picasso sketch.” Attribution is not just credit, but responsibility. It differs in this way from moral rights. This came up in the Gone With The Wind case. Also, the Cat Not in the Hat. The process is one of literary criticism — can we connect this up with the original text? If you can, it’s fair use; if you can’t, you don’t. In some way, the original author is responsible, partly, for the interpretation that the second comer placed on the original.

There are authors who are offended by this. “I didn’t mean that” is hard to argue with. There’s a second fear — the author may fear that the audience can’t distinguish betwene the original and the derivative. This is the problem with Gilliam — heavy editing of Monty Python that makes it less funny. In fandom, we can tell because of production values and general cultural knowledge.

Although it’s a different form of control, attirbution is an exercise of authority over the original Author as well as disclaiming one’s own Romantic authorship. Not that attribution’s bad — it’s a workable norm.

We can learn from fandom that there are ways to have authorship without having total control. They are complicated and messy and hard for the law to recognize, but they exist and they work.

Comments by Jessica Litman:

Boyle has written that there’s a balance between controlled and uncontrolled uses. None of the policies of copyright would be undermined if fan creations were uncontrolled and legally uncontrollable. Fans made Star Trek survive as a franchise. Same with Star Wars. Without the fans, and without the fic, these wouldn’t have survived.

But “No Harry-Draco slash” sounds pretty reasonable, coming from JK Rowling. But these works are not completely original — they are influenced by the fans, and moreover the fans’ experiences of the works influence other fans’ experiences of the works.

We’ve all been undervaluing the reader, and their place as a creator in the copyright skein. To read anything at all, someone needs to experience the work. We haven’t been paying enough attention to readers and listeners, at a theoretical level. Author incentive theories relegate readers to the ghetto of fair use. And fair use just isn’t capacious enough.

there are other tools to properly treat fannish creativity — implicitly authorized derivatives, for example. If they want to vary the terms, let them do so by contract. As a normative matter, it’s an ominous sign that we’d need an implied license theory to make this work.

We’ve allowed two large non-statutory expansions. We’ve promoted an expansive literal reading of copyright, in which everything’s licensed, privileged, or infringing. the reading is broader than the language of the statute requires. Second, we’ve failed to prevent the expansion of each of the rights in the copyright bundle, and they’ve coalesced into a general use right. Copyright owners have persuaded courts that “looking at” is an exclusive right, and that “distribution” includes making available. This is a huge expansion, and implied license won’t make much of a dent.

To resist this, we need to push back with something. Recalling that readers, listeners, and viewers have a central place in the copyright system is one way to push back. Rebecca’s fan communities may seem utterly exceptional, but they’re not. They interact with the works. This is something that copyright should encorage, and traditionally did. Only expansion shows the problem, and we need to reexamine it.

Comments by Mark Lemley:

Yesterday, we talked about the need for ethnographies. This is one. Since it’s about fanfic, it seems appropriate that I repurpose her idea in an unintended way. Here goes.

Let’s use this as a way of thinking about fair use. One important lesson is that there’s a relationship between fair use and scale. Fanfic works primarily because it’s small-scale. You can only have Harry-Draco slash in a small community — if it took over from the real thing, the original would be changed, and the normative baseline would move. If we fork the genre, we can’t comment on it anymore.

There are a number of cases like this, where scale matters. An identical large-scale use is problematic where a small-scale use isn’t. Photocopying is one example. P2P file sharing is another example. When it’s friends, it’s less of a problem than when it’s with the whole internet. The fair use doctrine deals with this by implying that the scale will always be large — “If this use becomes widespread, will it interfere with incentives?” This might be the wrong question. It creates problems where they don’t exist. Marginalization is probably a cost of not seeking permission.

Second, flying below the radar — not producing fanfic that’s illegal under fair use but which never gets caught — may still be an important freedom. Does the practice onthe ground, even if nominally illegal, give us the freedoom to tinker? Feinstein was bemused, at the “post-Grokster” hearing, that P2P still existed. The answer is that the world is not dictated by law, and that interaction may be a freedom we enjoy without being legal.

Third, should we protect copyright owners from themselves? Things copyright owners fail to prevent turn out to inure to their benefit over and over and over. But I think it’s important to separate compensation from control. One of the problems with fair use is that it denies both compensation and control, where one or the other may very well be appropriate. Its lack of granularity limits the scope of the doctrine.

We ought to get rid of the injunctive right where the use is unfair ONLY because there’s a market for licensing those uses. These are rightly derided as circular. your right ought to extend only to payment in such a case, not to an injunction. Copyright law would have to change to make this work. We’d need a non-punitive damages regime (no statutory damages, for example).

In the last two pages, the attirbution norm come up. Which instinct’s at work? How do we work this out?

Comments by Paul Goldstein:

I liked this paper’s window on a culture I’m not familiar with. Having opened the window, it sheds light on the interplay of two copyright themes — fair use and moral right. I’d like to nudge open the window a bit wider with regard to the “fair dealing” attribution requirement in other countries. That captures both fair use and moral rights in a single strain.

The norms implicit in the practices of other countries underpin Berne. We’re contrained by Berne, so let’s keep in tin mind.

First, fair use is a vessel capturing a variety of impulses. There are four versions of fair use in US practice — Betamax private copying (he thinks acceptable under Berne), parody (even more robust elsewhere — even in France), transformative use other than parody (problematic under Art. 12 of Berne, since it’s an adaptation), and abuse of right. Using copyright for non-copyright purposes, like the Howard Hughes case where it was used to protect privacy. Another case is Sega v. Accolade, where copyright was leveraging control over uncopyrightable operating system elements. I’d love to see more of this in American copyright doctrine.

Next, moral right. She rightly underscored the attribution right. The right of integrity, in the US, is viewed as central. In fact it’s not. The central right is that of attribution. There’s a powerful norm at work here. Moral right gets a bad rap here. Motion picture studios don’t want it. In the Dietz report, he shows that moral right can be as utilitiarian and as flexible as American fair use. Let’s pay attention to developments abroad.

Tushnet’s response:

We must be wary of the sense of authorial genius in fandom.

Authorship owny showed up at the end of Lemley’s comments, with attribution as a substitute for compensation. But it actually shows up at the beginning, before the corporate form takes over. I’m hesitant about the “small-potatoes” argument. Let’s point to Batman. Batman is corporately owned, and has been for quite a while. There are many different canonical Batmans. To say that copyright is a way of guaranteeing control seems odd when there’s no individual owner. Corporate ownership may change the works substantially. People can tolerate forking of stories in ways they can’t tolerate forking of code. You can maintain an image of the canonical Harry alongside the Harry-Draco slash Harry.

With respect to the international points. Japanese practices are particularly interesting. There are fan populations all over the world, and a lot of Western European vidding.

Questions:

Larry Lessig: What’s the pushback given the clear logic of describing the problems in the copyright system? Fandom has always been around, independent of copyright. The expansion of the mechanics of copyright is sweeping in things that never implicated copyright before. How do we draw the line between the domain of copyright and the rest of the world, keeping it from sweeping too much with its reach?

Litman: In 1994, fighting off the DMCA, we were busy saying that copyright was so big that it was big enough. Maybe we shouldn’t have said it was so big. We focused on RAM copies, not paying attention to the expansion of copyright into a general use right. In 1976, nobody would have said there was this general use right. Ray Patterson was right — we need to see copyright as a narrow set of exceptions to the general rule of freedom, rather than a “damage to bottom line therefore prima facie infringement” view.

Tushnet: Larry’s move — this has always happened — can always be countered with Mark’s move — scale matters. But people didn’t always make vids. To say that this has always been going on is in some respects wrong. Things like this have been going on, filling the same social purpose. But vids are new. This makes Mark’s move more attractive.

Neil Netanel: You say one reason copyright should not extend to prohibit fanfic is that fans as consumers give value to the work. I wonder about that — generally in property law, the value of consumers for a product is not a reason to limit rights in property. Value does not imply a weaker right, does it?

Tushnet: I think that’s implicit in the piece, but I’m worried about embracing it in those terms.l The value is emergent in the interaction. Belinging to one side or the other doesn’t fully describe the situation. Think back to Econ 101 — consumer surplus. Who should get it? (Not “who created it?”) We face a policy choice about who gets the most benefit from this undefined, emergent value. That’s why we should allocate it to lots of different people.

December 4, 2005

More from George Dyson on Universal Libraries

At Edge, a new and erudite essay on universal libraries and Google Print from George Dyson.

There is, I believe a small and inconsequential error in one of his colorful examples. His early edition of Leviathan was “printed for Andrew Crooke, at the Green Dragon in St. Pauls Churchyard, 1651.” He takes this to mean that it was printed by a firm called Green Dragon for a bookseller named Andrew Cooke, which is probably wrong. It was, instead, printed by an anonymous stationer for Andrew Cooke, whose shop, located in St. Paul’s Churchyard, is identified by a sign featuring a green dragon.

October 18, 2005

DJ Spooky Speaks on Rhythm Science

Last night, I went to CCA to hear a talk by Paul D. Miller, a/k/a DJ Spooky, That Subliminal Kid. It was part of a lecture series intended for MFA students, so the art-historical and art-theoretical references were running at a pretty high level, to my delight. Miller spoke about “Rhythm Science,” riffing on the ways technologcal tools have allowed the “unpacking” of music and movement over the past hundred or so years. (I hadn’t realized that “deconstruction” had become a passe term, but it must be; several times, Spooky was obviously talking about deconstruction in the Derridean sense, but talked around the term.)

One notable aspect of the talk was the near-total absence of discussion of copyright law. Miller’s artistic practice, while implicating copyright law at every turn, is particularly unlikely to draw lawsuits because his copying is so transformative that the elements of the original are not recognizable. He’s certainly savvy about the law, and his answer to a question about Creative Commons was thorough and smart, but it seems the law just doesn’t enter into the artistic decisions he makes.

That’s the way it should be.

August 14, 2005

Richard Foreman: Commoner

Richard Foreman, noted experimental playwright and progenitor of the Ontological-Hysteric Theatre, has made his notebooks freely availbale on the web for anyhone who wishes to create a performance from them. The notebooks are here; coverage in this morning’s New York Times is here.

Though he does not explicitly use a Creative Commons license, Foreman’s terms are similar to those of the CC Attribution license:

I here make available my notebooks for the last fifteen years or so in the hopes directors/writers will make use of the material as I do. Choosing, arrangning, re-arranging, inventing situations into which the dialogue can be dropped, and ending up with a theatrical poerformance.

This material if offered freely. I ask no royalty. Because of the unique way I generate plays– this may mean I myself will still be using from this pool of material in the future. I invite you to do so also.

The only thing I ask is that if you make use of this material in performance
a) you simply notify me, so I can know if this material is stimulating anyone.
b) any material used for production or publication displays in program or title page– relatively prominantly– the statement that the text involved is re-arranged material taken from the notebooks of Richard Foreman.

In the Times article, Foreman explains the thinking behind his choice:

“I like to think of the notebooks as a pool of raw material,” Mr. Foreman said. “I make plays of out it, so why can’t other people? I just identify with this idea that I’m a funnel for this material that doesn’t particularly belong to me.”

April 27, 2005

The Foibles of Interactive Art

Sarah Boxer has this very funny “Critic’s Notebook” piece in this morning’s New York Times. It describes the writer’s annoyance with four tropes of interactive art — “prurience, ritual, ungraciousness and moral superiority” — and with artwork that doesn’t function as intended.

I hope this piece becomes a standard in course packs. While there’s virtually no art better than fully-theorized, fully-realized interactive work, there’s virtually none worse than pretentious, tired, broken gizmos filling a gallery.

April 7, 2005

Text of Grokster Transcript

I’ve converted the PDF of the Supreme Court Grokster transcript into text form. It appears below.
(more…)

March 21, 2005

L.A. Times on the Yoga Case

The L.A. Times today published this very good article on Open Source Yoga Unity v. Choudhury. A group of yoga studios is suing for a delcaratory judgment that Choudhury (who popularized “Bikram Yoga”) cannot use copyright to control who can do a specific yoga routine. Choudhury claims he owns valid copyrights covering the routine; OSYU claims that the routine is not copyrightable and, if parts are copyrightable, that OSYU’s members aren’t infringing the copyrightable portions.

The case raises interesting, unresolved questions about the copyrightability of movement — for example, yoga routines are both beautiful and healthy. Doctrinally, the portions that are functional are not copyrightable, and the portions that are expressive are copyrightable. Can we separate the expressive from the functional elements of Bikram’s routine? If so, the question is whether the copyrightable portions were infringed. If we can’t separate the two parts, the work as a whole isn’t copyrightable.

OSYU’s lead lawyer is my friend Elizabeth Rader, currently of Shaw Pittman and recently of the Stanford Center for Internet and Society, who’s doing a great job pro bono.

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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