There will be no winners if we do not sort out copyright, argues columnist Bill Thompson. But let us not forget moral rights.
He brings up certain fairly obscure provisions of copyright law, called "moral rights". Now, these have absolutely nothing to do with how the words might look to someone unfamiliar with the issues. They relate to very minor aspects of copyright, not concerned with economics, mostly having to do with identifying the author, or in a few special cases, a right to prevent certain uses even apart from fair use. They're practically non-existent in the US, but slightly stronger in a few European countries, notably France. However, the words "moral rights" sound like "morality of property right" to many people's ears, so those set off the automatic reactions generated by such a topic. I believe what's going on here is a problem with people's conceptions of copyright. "Moral rights" as a colloquial phrase describes how people naively think about copyright, rather than the overwhelming economic bargain system. So the issue can be a kind of proxy for the mismatch between people's naive abstract concept of copyright law, and its reality.
Bill Thompson then criticized Creative Commons licenses, for supposedly not taking the "moral rights" copyright provisions into account. Though the underlying complaint was apparently more about the entirely different topic of why he felt compulsory licenses were against his conception of the morality of copyright property rights.
Anyway, with a certain amount of trepidation, I wrote up a message noting possible misunderstanding of the "moral rights" aspect copyright, and sent it to an old United Kingdom mailing list about cyber rights to which I happen to still be subscribed, where I wondered if a few UK lawyers might weigh in on the topic. Lo and behold, Bill Thompson was a member of the list, and sent this clarification of his views (reposted here with his permission):
From: Bill Thompson
Subject: RE: Creative Commons, "Moral Rights", UK law
Date: Sat, 26 Feb 2005 19:12:21 -0000
Following what Seth and then Nicholas have said, I'd try hard to argue that the BNP using anything of mine to support any of their positions was inherently derogatory - but I think Nicholas is right, that I'd have a hard time.
My problem is with blanket/compulsory licensing of content rather than fair dealing - which would require some criticism/comment attached to the use. After all, I've been quoted approvingly by a Tory MP in Parliament (over the problems with e-voting) and I didn't object to that. I recommend Larry Lessig's recent post, at
for anyone who wants to know more - it's a useful clarification, and makes his (and, I would reckon, the Creative Commons) argument a lot clearer. It also makes me a lot happier with what they are doing.
Still asserting my moral rights where I can, though.
Maybe some misunderstandings will now be fixed, and I will have done some good in the world.
[Discloser/disclaimer: This post deliberately outright avoids engaging certain aspects of the various articles, since I am an ant among elephants.]
It is obvious that the Blog People read what they want to read rather than what is in front of them and judge me to be wrong on the basis of what they think rather than what I actually wrote. Given the quality of the writing in the blogs I have seen, I doubt that many of the Blog People are in the habit of sustained reading of complex texts. It is entirely possible that their intellectual needs are met by an accumulation of random facts and paragraphs. In that case, their rejection of my view is quite understandable.
[Note Michael Gorman is the President-elect of the American Library Association]
If a fraction of the latter were devoted to buying books and providing librarians for the library-starved children of California, the effort would be of far more use to humanity and society. Perhaps that latter thought will reinforce the opinion of the Blog Person who included "Michael Gorman is an idiot" in his reasoned critique, because no opinion that comes from someone who is "antidigital" (in the words of another Blog Person) could possibly be correct. For the record, though I may have associated with Antidigitalists, I am not and have never been a member of the Antidigitalist party and would be willing to testify to that under oath. I doubt even that would save me from being burned at the virtual stake, or, at best, being placed in a virtual pillory to be pelted with blogs. Ugh!
I did some research tracking down these two items. The "idiot" quote is almost certainly:
"Where do they find these people?"
"Michael Gorman, president of the American Library Association, is an idiot too."
You wouldn't find it simply searching Google for the phrase "Michael Gorman is an idiot", since the above quote is slightly longer. I also thought to check Feedster, since it's a bit better at indexing blogs.
"Antidigital" is probably
"All I have to add is a couple cents' worth about Michael Gorman. He has always been anti-digital (just read what I've written about him for details)"
Again, slight variation means a phrase search wouldn't find it.
All of this is yet another iteration of the confusion of the word "blog" meaning all of diary/chat/punditry. But that's another blogging topic.
Apparently I'm an influencer, influencing influencers (JJarvis' phrase).
Cites & Insights 5:4, March 2005, is now available for downloading. 22 pages, PDF as usual.
Taking Seth Finkelstein's suggestion on tabloid-style marketing to heart, here's what's included:
- Did NIH back down to Big STM--or was this a reasonable compromise?
Library Access to Scholarship
- Who gets first-name treatment in C&I?
Bibs & Blather
- You call this a community?
Perspective: The Dangling Conversation
- Does anyone care about multichannel sound or ethics?
- Chills, thrills, public-domain flicks
Offtopic Perspective: Family Classics 50 Movie Pack, Part 1
- Is a short story a book--and would you read Moby Dick on a cell phone?
Ebooks, Etext and PoD
Beginning with this issue, Cites & Insights uses Adobe Acrobat 7 to support text-to-speech and bookmarks. You'll need at least Acrobat Reader 5, and 6 or 7 for the accessibility and organization bookmarks (7 is faster than 6).
This issue also has a few more test HTML files--the selective form that may or may not continue. These particular files should be stable indefinitely. Go to the home page to check them out.
And now that it's clear that I really, truly suck at creating tabloid-style headlines, don't expect to see them again.
Let's see if the tabloid-style headlines increase the download stats :-). Too bad there was no use of the word 'RSS' in the tabloid headlines. These days, RSS controversy is like the old publishing joke about how one should write a book about "Lincoln's Doctor's Dog", a surefire hit.
The underlying serious point, though, is that there's thousands of words that people don't get an indication to read. A few gems:
(One weblogger commenting on the 6,000-word WIKIPEDIA AND WORTH [REVISITED] perspective managed to boil it down to "we should all just get a grip." Now that's concise writing. I'm jealous.)
You've guessed by now that I regard slashdot with a mixture of horror and fascination: If that's a community conversation, call me a hermit.
But there's more--although it's all variations on the rest of this essay: Every weblog gives a considerably larger voice to the owner(s) of the weblog than to anyone else wishing to "join in the conversation." It's not a conversation. It's a statement that may be followed by responses (and responses to those responses), but one person (or a small group) always gets to make the initial statement--and usually the final one as well.
EFF's "HDTV-PVR Cookbook", regarding how to build your own personal video recorder, deserves notice. This is important because it's a technical way to oppose the Broadcast Flag mandate. (see my much earlier "Broadcast Flag - fighting it with Open Source").
As EFF describes on our Digital Television Liberation page, recent regulations in the United States will ban the manufacture of DTV-receiving hardware described here after July 1, 2005. While we challenge these regulations in court, the clock is ticking, and it's safest to assume that it will be difficult to get unrestricted DTV receiving equipment in the future the way you can today. [...]
Now, more than ever, hobbyists have a chance to build useful, enjoyable "convergence boxes" that show the contrast between the restrictive technological world entertainment companies have in mind and the freedom and creativity that the programmable PC can unleash.
There's a political saying, "You can't beat somebody with nobody.". I've long felt the net equivalent is something like "You can't beat the copyright business with policy argument". There has to be something on the other side, something besides a position paper or a theoretical article. And it helps immensely if it's something practical, that people might actually want to use.
Now, this isn't a panacea. The instructions are still very hobbyist oriented, they aren't" for grandma". There's much refinement which could be done. But it's so refreshing to see something physical, instead of Yet Another Pontification That The Broadcast Flag Is Bad And Contrary To Innovation (not that those are wrong - but they very rapidly reach a point of diminishing returns in utility).
They're called End User License Agreements, or EULAs. Sometimes referred to as "shrinkwrap" or "click-through" agreements, they are efforts to bind consumers legally to a number of strict terms ? and yet you never sign your name. Frequently, you aren't even able to see a EULA until after you've purchased the item it covers.
With consumer activism, as well as actions that push our legislatures and courts to change consumer protection laws, we can prevent corporations from taking away our rights one mouse click at a time.
If you have been harmed by a EULA, or threatened with legal action because of one, EFF wants to hear your story. E-mail us at EULAharm@eff.org.
Harmed ... Well, where do I start ...
Might as well just repost something I wrote a while back, about reverse-engineering vs. fair-use, and censorware examples
Findlaw [had] an interesting article "Should Software Companies Be Able, Through Contracts, To Prevent Competitors From "Reverse Engineering" Their Products", by Chris Sprigman. It's a very good discussion of the subject. But there's a few places which could use some commentary:
Now, however, some companies whose software has been reverse engineered have started to fight back. They have added anti-reverse engineering provisions to the "shrinkwrap" licenses that accompany their products.
"Now"? This isn't new. I can't recall ever seeing a commercial shrinkwrap license without prohibitions against reverse-engineering. I found a censorware example from 1997, with a reply indicating this issue goes back decades (n.b., this is in part why I did my pioneer work against censorware , in virtual anonymity for so long).
Reverse engineering itself, then, has been held to be fair use.
There's a difference between the idea that "Reverse engineering itself, then, has been held to be fair use", per se, intrinsically, and that certain instances of reverse engineering have been held to be fair-use, but others have been denied as fair-use. That is, between is fair-use, versus could be, but also might not be, fair-use. A reader of that article can easily get the impression that the courts have said reverse-engineering itself is always permitted as fair-use, whereas they've also said in other cases that it's not fair-use.
In particular, of special interest to me, the Cyberpatrol lawsuit, regarding programmers who reverse-engineered that censorware, has the following nasty things to say about that reverse-engineering of censorware:
43. Jansson and Skala admitted that they reverse engineered and decompiled Cyber Patrol Cyber Patrol, which violates the Cyber Patrol license agreement and creates an intermediate copy of Cyber patrol. ... In either case, by creating an intermediate copy of the Cyber Patrol software the defendants committed a prima facie copyright violation. ...
No Fair Use Defense
44. Fair use is a statutory affirmative defense to conduct otherwise actionable under the copyright law. ...
45. In general, any claimed "fair use" must be "consistent with the ultimate aim [of the Copyright Act] to stimulate artistic creativity for the general public good" ...
46. It is the defendants' burden to demonstrate such "fair use." ...
47. The individual defendants have no "fair use" defense here because they have neither asserted it nor submitted evidence supporting any fair use defense. ...
48. In addition, the purpose of the copying here is inconsistent with the general public good. The individual defendants' avowed purpose for decompiling CyberPatrol was to allow "youth access" to inappropriate content on the World-Wide-Web. That purpose contradicts the public interest as specifically found by Congress ...
49. Finally, to negate fair use one need only show that if the challenged use should become widespread, it would adversely affect the potential market for the copyrighted work ...
50. By their own admission, Jansson and Skala created the Bypass Code to "break" CyberPatrol ... Software explicitly designed to make CyberPatrol ineffective for its intended use can do nothing other than "adversely affect the potential market for the copyrighted work" ...
So whether reverse-engineering is fair-use also has to do with whether the court finds the specifics to be in "the general public good".
Disclaimer: I'm not a lawyer. But as the saying goes, the hound was only running for his dinner, but the hare was running for his life.
"The evil that men do lives after them"
When I started writing a blog, I took a deliberate, considered, approach that I would try to combine the local - "personal voice" aspect being touted - with the global, accounts of my successes and failures in fighting for net freedom. I thought that was a workable blend of having something reasonably interesting to say, yet about more general subject matter. This arose from a mistaken belief in the practices of BlogGods (one mistake was that, for local celebrities, many people care about the celebrity's online diary - but as a general rule, people do not care about your online diary, there's only so much celebrity to go around, and it's exponentially distributed).
I can feel it in my bones, part of the aftermath is going to be in essence that I'll hear, about free-speech activism:
"Oh, you're always complaining" - nothing satisfies you (as the saying goes, all I ask is the chance to prove that money can't make me happy), what more do you want (gushing publicity, a team of lawyers, $110/hour expert fees - or at least two out of three), IT'S ALL YOUR FAULT (how convenient a belief).
Now, a particular malicious person can do a great deal of damage. and it doesn't necessarily go away when they do (there are grudges which still remain against me, that simply will never be given up, it just won't happen).
But the key is to realize that those are specific examples of a general problem, of power imbalances, of how the system is set up. Is the flaw with monarchy having any particular "bad apple" as a king, or that overall, absolute monarchy is system which leads to bad governance?
I think of the outcomes of fighting against the DMCA and Internet censorship as a kind of probability-weighted mathematical sum of all the good things than can happen versus all the bad things that can happen. This sum is of course difficult and unclear to determine, but judgments have to be made on best efforts at estimation, despite a lack of Platonic certainty. Today, for me, the expected value of this sum is a bit less negative than it was e.g. a month ago. But "a bit less negative" is a far cry from "positive". And in absolute terms, negative is still negative. As I call it, the "three P's" - pay, press, (legal) protection, all remain solid obstacles.
It's not "Nothing's changed". Rather, it's "Too little has changed".
"Michael Sims fired Slashdot" has been one of the most popular Google searches to my website recently.
While I cannot determine if he was in fact fired from his Slashdot editor position, as distinguished from any other type of departure, it is with great pleasure that I can break the following news:
The name "Michael Sims", which previously was present, has now been removed from the listings.
This information is objective, and can be validated by visiting the page above.
"Editor Upgrade" Confirmed!
Excuse me for a moment.
"E's kicked the bucket, 'e's shuffled off 'is mortal coil, run down the curtain and joined the bleedin' choir invisibile!! THIS IS AN EX-EDITOR!!"
While I hope my reaction is understandable to long-time readers, people visiting this page from a search engine might want to read:
And I didn't write any of that, and it's not from infamous flamers with axes to grind.
Unfortunately, this happens too late for me. But who knows? Maybe I'll eventually get a formal apology from someone at Slashdot. Stranger things have happened. Perhaps their minds are no longer closed.
The OpenNet Initiative recently had a study
"Tests undertaken by the ONI in December 2004 and January 2005 reveal that South Korean blocking extends to far more than the 31 web sites targeted by the orders. An additional 3,167 unrelated domain names hosted on the same servers as the blocked sites are also blocked. These web sites are completely unrelated to North Korea. This collateral blocking remains in place today."
Blocking by IP address generally leads to the blocking of content that was never intended to be blocked since many thousands of domains can be hosted on a single IP. ...
Also, the same problem (or is it a feature?) has been documented in commercial filtering software as well.
Non-echo note: In fact, this is a big issue driving the internal structure in creating the censorware blacklists. The overall blacklists are often divided into bans by-name, and bans by-address. I actually wanted to investigate this issue from the "inside-out" (i.e., from the blacklist entries themselves). Sigh ...
Here we go again. YADL! (Yet Another DMCA Lawsuit).
These all follow a pattern.
The corporation issues a press release about the Threat To Civilization As We Know It, i.e. "Ignoring the situation will ultimately hurt future gaming experiences for both casual and hardcore gamers,".
The programmers and hobbyists get accused of mopery, popery, snookery and mookery, I mean, "copyright infringement, circumventing copyright protection systems in violation of the Digital Millennium Copyright Act (DMCA), and passing off and unfair competition".
The free-speech side fights the good fight, points out it's an outrage, it's an atrocity, that it violates our social concepts of what is fair to use: "This complaint is absurd. ... . It's not competing in any way with Tecmo's product. In fact, you have to own Tecmo's product to use this stuff." (I'm skipping over the whole DMCA / fair use legal hack).
Two semi-original notes:
The coverage-swarm seems to have been triggered by the company press release. It's at the root of the echo chamber, even though the lawsuit seems to have been filed on January 21.
I don't know how many of these DMCA lawsuits there have to be, for certain people to admit my censored censorware research involved very serious legal risks (in some cases, it probably never will happen ...).
Walt Crawford's amazing library 'zine Cites & Insights is already on the February 2005 issue, and I feel guilty because I barely skimmed the January 2005 issue. Maybe it needs better hype. After all, which would you rather read, a webzine blurbed like this:
* Ethical Perspectives: Republishing and Blogging 1-4
* The Library Stuff 7-11 Trends & Quick Takes 7-11
* Perspective: Wikipedias and Worth [Revisited] 11-19
* The Good Stuff 19-21
* Session Reports: ALA Midwinter 2005 21-24
Or like this (deliberate supermarket-style):
Article Recycling - are professional journals giving you your money's worth?
RSS in libraries - a solution looking for a problem?
Blogging and Triumphalism - How many people have NOT heard of blogs?
Wikipedias - Collective nonsense or distributed knowledge?
Ruminations over Aaron Schmidt, Michael Stephens, Karen Schneider, Rachel Holt, Seth Finkelstein, and more ...
The Wikipedia material itself is fascinating. But I can't resist excerpting his take-down of the Pew State Of Blogging Report:
Here's Pew again, once more extrapolating from 1,800 interviews to give us the precise state of the nation on internet-related issues. (Yes, 1,800 interviews chosen with appropriate tools should be enough for reasonably accurate projections, given a whole set of hard-to test assumptions.) This time it's about the blogosphere. I didn't download or read the whole report, but I did look at the summary and some comments about the study and the summary. I'm assuming here that "adults" means "age 18 and over." I'm going to repeat some of the key points in the summary, using precisely the information given, but wording them just a bit differently: 96% of U.S. adults have not created weblogs. 86% of them do not read (and, I would extrapolate, have never read) weblogs. 80% do not know what a blog is. 93% have never posted a comment or other material on blogs. During the political campaign, 95% of adults did not read political weblogs--and 97% did not read them regularly. 97-98% of U.S. adults do not use RSS aggregators or XML readers. 52% of blog creators are more than 29 years old. 58% of blog creators are not particularly well off financially, living in households with no more than $50,000 annual gross income 61% of blog creators do not have college degrees. As some readers have figured out by now, I've just provided the inverse of the claims actually made in the summary--and adjusted for the difference between 120 million adult internet users and around 222 million adults (2000 census).
The Wirenius Report Blog has recently been launched:
John Wirenius is a lawyer and scholar whose practice and writing centers around the balance of power between the individual and the state, and in preserving freedom of speech. John is presently representing pro bono the New York City artist Barbara Nitke and the NCSF in the First Amendment case Nitke v. Ashcroft, which challenges federal statutes allowing prosecutors to apply the most conservative community standards of decency in the Nation to the entire Internet.
In the interest of helping out, I thought I'd do post about it.
I am of course biased, since I worked with John Wirenius on the above-mentioned Nitke v. Ashcroft case. His initial post has a very long status update, and also says nice things about me (I am not too modest to quote that section, but there's important material in it):
We had two generous and brilliant tech-wizards--Ben Laurie and Seth Finkelstein--who purely for principle, agreed to appear in court and explain why speech on the Internet is an all-or-nothing thing--that you can't prevent visitors from the more conservative communities from accessing a website or other online speech.
The quality of his writing shines in other commentary too, e.g. analysis of the obscenity issues in Extreme Associates Dismissal:
Moreover, obscenity law chooses a side in the war of ideas--defending old fashioned propriety against libertinism, or pro-sex viewpoints. That advantaging one side of an ongoing social debate violates the very core of the First Amendment--the requirement that laws be viewpoint neutral. In other areas of so called "low value speech," such as "fighting words," the Court has held that restrictions must be viewpoint neutral. See RAV v. City of St. Paul, 505 U.S. 377, 382-383 (1992). But again, in obscenity, that rule does not apply, with the only reason set forth is that "traditionally" obscenity law is an exception to free speech. (The Court in obscenity cases is a little like Tevye asserting "Tradition!" when all other arguments fail.) But tradition is not enough; as Justice Holmes pungently put it "it is revolting to have no better reason for a rule of law than so it was laid down in the time of Henry IV." (Holmes, "The Path of the Law" in Collected Legal Papers (1921) at p. 187).
All well and good; but will the Court of Appeals (to say nothing of the Supreme Court) approve Judge Lancaster's daring in undermining these decades of settled authority? Stay tuned....
More to sample:
Blogdom is an oligarchy, where the cold equations of exponential distribution of attention dictate that there are many worthy voices which are barely heard. John Wirenius has brought a critical Internet free-speech fight through the courts, possibly going to the Supreme Court. Hear him.
My "hyperlocal journalism" efforts to find out more about the Slashdot "editor upgrade" seemed to have reached a dead-end. The only new information I have is:
Given that the low-level Slashdot employees aren't talking (at least to me), my original idea was to approach the journalistic problem from a different direction. Start from the corporate offices, and then go downwards, hoping to find someone who has knowledge of personnel, but is disinterested in the internal Slashdot politics. This hasn't worked, since even if the necessary person exists, finding him/her requires more skill at hierarchy-navigation and telephone-tag than I possess.
Today I had a variation on the idea - try the middle. I briefly talked to an OSTG'er who at last knew what the website "Slashdot" was. But they didn't have anything to say beyond what sounded like sincerely helpful advice to talk to the person in charge of Slashdot (i.e., they didn't know anything, as opposed to knowing but not telling). Again, no "personal" factors here, it was standard editorial/journalist conversation.
At this point, I'm out of ideas, and am beginning to worry I'm taking too many chances. Investigative journalism takes time and persistence, and it's tough to do it for nothing. Let's see, maybe the great distributed power of the bogosphere can emergently produce the necessary information (not speculation). If I find anything (which sadly seems unlikely), I'll clearly mark the provenance of the information, and will not expect to be taken on face value. Anonymously remailed messages will be treated with the credibility they warrant - although I may privately chuckle at a good troll, I must decline to be a conduit.
I have my own speculations, but given my, well, let's say non-objectivity, I'd rather not add to the rumor-mill without something to back up my thoughts.
[Update 2/5 - a comment points out that the Bio page still lists Simon Carless ("simoniker"), even though "he left months ago".]
[Update #2 2/5 - Interestingly, Simon Carless' linklog has an entry on February 05, 2005:
Michael 'Zonk' Zenke now full-time Slashdot editor (Congrats! Coincides with the departure of Michael, and good luck to him.)
[Update #3 2/5 - In response to an email inquiry, Simon clarifies that he has no first-hand information. ]
There is a rumor that Slashdot has undergone an "editor upgrade". I don't know anything about it beyond what's available to the general public.
In the tradition of, err, "hyperlocal journalism", I called the parent company, OSTG, and tried to find someone who could confirm or deny "a rumor of a personnel change at the website Slashdot" (as I phrased it). I got shunted to a marketing person who wasn't in the office, so that was a dead end (n.b., it can't have been personal, as I was never asked who I was).
I sent some e-mail inquiries to people who might tell me, and haven't gotten any reply. But I wouldn't be surprised there's a staff policy not to talk about personnel matters. On the other hand, I wouldn't draw any inference from my being ignored either.
It would be nice to have it be safe for me to submit stories to Slashdot. . But even if so, it's really too late now. I've quit all censorware decryption research and pretty much now abandoned DMCA-fighting. So the damage has been done, and I don't see myself ever going back to that activism. But there's still e.g. the Nitke v. Ashcroft Federal trial (about the Internet and "community standards" for obscenity), where I'm an expert witness.
But, as I've mentioned many a time, Slashdot's de facto support connected to the domain hijacking of Censorware Project did tremendous harm. So an "editor upgrade" would mean something to me, but much less than might naively be thought.
[Note, yes, the language in this post is deliberately careful]
[Update 2/3 : I did another round of calling OSTG, another dead-end, this time at human resources. To give a sense of perspective, in my bureaucracy meanderings, I have yet to speak to anyone who has even heard of Slashdot! (or at least is willing to admit it ...). And nobody who might know is willing to leak to me.]