Category Archives: Copyright

Sounds like fair use to me (and it should be, if it's not)

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Ethan Zuckerman blogged Erin McKean’s talk at PopTech, reporting of the fear of some lexicographers that they will be sued for scanning some books to analyze language patterns. “This scanning shouldn’t be threatening to publishers. ‘I don’t care about your plot, or your ideas – I just want to analyze your use of the language.’ It should be considered fair use… ‘but this is America – anyone can sue anyone for anything.’ And just the threat of a lawsuit is enough to prevent lexicographers from analysing some texts.”

EZ goes on: “She begs us to make changes to the copyright pages of our books so that lexicographers have the explicit right to analyze them. (I’ll be putting the idea in front of Larry Lessig, to see if this can be yet another selling point for Creative Commons.)”

Special Copyright Podcast

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The Berkman Center’s increasingly terrific new media production team has rolled together this special-edition podcast on copyright in the context of teaching and learning. It’s an extension of the work done on the Digital Learning Challenge, led by Prof. Terry Fisher (the first voice you hear on the podcast) and former Berkman fellow, now Prof. William McGeveran, and funded by the Mellon Foundation. The theme of uncertainty in the digital copyright realm is particularly real in the context of using works in teaching and research, despite all manner of reasons why we wouldn’t want that to be so.

Making a Market Emerge out of Digital Copyright Uncertainty

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The digital copyright issue is one of the sidebars related to the Google/YouTube transaction that has merited a fair amount of digital ink.

(For a few examples: don’t miss Fred von Lohmann as interviewed by John Battelle. Declan McCullagh and Anne Broache have an extensive piece highlighting the continuing uncertainty in the digital copyright space and quoting experts like Jessica Litman. Steve Ballmer brings it up in his BusinessWeek interview on the deal, asking, “And what about the rights holders?” And the enormously clever Daniel Hausermann has an amusing take on his new blog.)

My view (in large measure reflected in the WSJ here, in a discussion with Prof. Stan Liebowitz) is that Google is taking on some, but not all that much, copyright risk in its acquisition of YouTube. Google has already proven its mettle in terms of offering services that bring with them a reasonably high appetite for copyright risk: witness the lawsuits filed by the likes of the publishing industry at large; the pornographer Perfect 10; and Agence France Presse. There’s no doubt that Google will have to respond to challenges on both secondary copyright liability and direct copyright liability as a result of this acquisition. If they are diligent and follow the advice of their (truly) brilliant legal team, I think Google should be able to withstand these challenges as a matter of law.

The issue that pops back out the other side of this flurry of interest in the broader question of the continued uncertainty with respect to digital copyright. Despite what I happen to consider a reasonably good case in Google’s favor on these particular facts (so far as I know them), there is an extraordinary amount of uncertainty as a general matter on digital copyright issues in general. Mark Cuban’s couple of posts on this topic are particularly worth reading; there are dozens of others.

Many business models in the Web 2.0 industry in particular hinge on the outcome of this uncertainty. A VC has long written about “the rights issues” at the core of many businesses that are built, or will be built, on what may be the sand — or what may turn out to be a sound foundation — of “micro-chunked” content. Lawrence Lessig has written the most definitive work on this topic, especially in the form of his book, Free Culture. The RSS-and-copyright debate is one additional angle on this topic. Creative Commons licenses can help to clarify the rights associated with micro-chunked works embedded in, or syndicated via, RSS feeds.

Part of the answer could come from the courts and the legislatures of the world. But I’m not holding my breath. A large number of lawsuits in the music and movies context has left us clearer in terms of our understanding of the rules around file-sharing, but not enough clarity such that the next generation of issues (including those to which YouTube and other web 2.0 applications give rise) is well-sorted.

Another part of the answer to this digital copyright issue might be provided by the market. One might imagine a process by which citizens who create user-generated content (think of a single YouTube video file or a syndicated vlog series, a podcast audio file or series of podcasts, a single online essay or a syndicated blog, a photo covering the perfectly captures a breaking news story or a series of evocative images, and so forth) might consistently adopt a default license (one of the CC licenses, or an “interoperable” license that enables another form of commercial distribution; I am persuaded that as much interoperability of licenses as possible is essential here) for all content that they create, with the ability also to adopt a separate license for an individual work that they may create in the future.

In addition to choosing this license (or these licenses) for their work, these users registered this work or these works, with licenses attached, in a central repository. Those who wished to reproduce these works would be on notice to check this repository, ideally through a very simple interface (possibly “machine-readable” as well as “human-readable” and “lawyer-readable,” to use the CC language), to determine the terms on which the creator is willing to enable the work to be reproduced (though not affecting in any way the fair use, implied license, or other grounds via which the works might otherwise be reproduced).

Some benefits of such a system:

– It would not affect the existing rights of copyright holders (or the public, for that matter, on the other side of the copyright bargain), but rather ride on top of that system (which might have the ancillary benefit of eventually permitting a global market to emerge, if licenses can be transposed effectively);

– It would allow those who wish to clarify the terms on which they are willing to have their works reproduced to do so in a default manner (i.e., “unless I say otherwise, it’s BY-SA”) but also to carve out some specific works for separate treatment (i.e., “… but for this picture, I am retaining all rights”);

– It might provide a mechanism, supplemental to CC licenses, for handshakes to take place online without lawyers involved;

– It might be coupled with a marketplace for automated licensing — and possibly clearance services — from creators to those who wish to reproduce the works;

– It could be adopted on top of (and in a complementary manner with respect to) other systems, not just the copyright system at large as well as worthy services/aggregators of web 2.0 content, ranging from YouTube, software providers like SixApart, FeedBurner, Federated Media, Brad Feld’s posse of VCs, and so forth; and,

– It would represent a community-oriented creation of a market, which ultimately could support the development of a global market for both sharing and selling of user-generated content.

This system would not have much bearing on the Google/YouTube situation, but it might serve a key role in the development of web 2.0, or of user-generated content in general, and to help avoid a copyright trainwreck.

Sony's new web e-book reader to support (some) RSS feeds

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Sony is unveiling its new online bookstore and e-book reader on October 1. One interesting twist is that they will allow you also to subscribe to certain RSS feeds on the device. But only a small handful of feeds, reports Stuff. The article says:

“The device and service will also let users download from the Really Simple Syndication or RSS Feeds of popular blogs, including Salon, Slate, Huffington Post, engadget and Gizmodo to read on the device. But it will only downloads from approved feeds, restricting users from freely downloading from any RSS feed.

“‘We’ll be expanding and improving it beyond that,’ he added.

“Newspapers and other periodicals will not be offered at first, although Hawkins did not rule out such features down the line.

“‘We’re taking a serious look at it,’ he said. ‘But we’re focusing on books and personal content at launch.'”

No doubt the copyright regime, and the lack of clarity around licensing of RSS feeds, has something to do with this approach by Sony.

Lessig on Interoperability at Wikimania 2006

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Lawrence Lessig is giving a rousing lecture right now to a standing-room-only crowd in Ames Courtroom at Harvard Law School. It’s a plenary session of Wikimania 2006. He is in his element. It’s amazing to feel the energy in this room — unconveyable by blog or any other Internet-borne medium, but very very real.

Interoperability, he’s saying, is the key to the story — the Free Culture story — of which Wikipedia is such an illustrative chapter. The instinct to control a platform that you give (or sell) to other people is understandable, but it is also stupid. There needs to be interoperability and free standards that provide the widest range of freedoms for human beings to build upon the platform (sounds a lot like JZ’s Generativity).

We need to remember this lesson as we build a free culture. But we also need to make it possible for this platform to enable people to participate in a free culture. We need also to support the work of the Free Sofware Foundation and work toward free CODECs to allow content to flow across various platforms.

But we need to move past the technical layer, and enable a platform at the legal layer, too, one that protects free culture. The CC movement is an important piece of the story.

Yochai Benkler’s extraordinary book oozes with praise for Wikimedia. You are the central element, the central example, of Yochai’s wonderful argument. It is out of praise for all Wikimaniacs that Larry got on a plane at midnight, he says.

He’s also got a plea for everyone at Wikimania 2006: enable free culture, generally. There are two ways, he says, to do that:

1) Help others to spread the practice with your extraordinary example. There’s a CC/Wikimedia project — PDWiki — to help do this. It will put works in the hands of Canadians in digital form. Beyond demonstrating what you can do with works, it will help to establish what’s in the public domain and what’s not.

2) Demand a user platform for freedom. It came from a conversation with Jimbo Wales; they were drinking awful coffee in Europe. The problem was a lack of interoperability among islands of free cultures. We need interoperability among licenses that are allowing you to do the same thing with the content. We need to support an ecology of different efforts seeking to achieve the same functional outcomes — just as the original web was architected, only this time for cultural works, for content, not for code.

The way it work work is not that CC would have control, but rather that Eben Moglen’s Software Freedom Law Center would be in charge of running the federation of free licenses. The outcome should be that you can say: Derivatives of works under this license can be used under other equivalent licenses.

If we do not solve this problem now, we will face an ecological problem. These islands of free culture will never become anything but silos. We could do good here; we should do good here. Keep practicing the same kind of Wikimaniacal citizenship, he urges, that you’ve practiced to date, and get others to join you.

[Loads of applause.]

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Elsewhere: CNet picks up the event itself as well as a wiki-photo-stream. Artsy, and nice.  And Martin LaMonica has covered Lessig’s talk.
Dan Bricklin, David Isenberg, David Weinberger, Dave Winer, Doc Searls, Mitch Kapor, Wendy Seltzer, Yochai Benkler, many other great people are in the room. An old-home week for Berkman Center.

And what a happy picture this is, taken by Dave (he also has a movie of it): a group posing on the steps of the Old Berkman Center (we’ve just moved across campus).

Following up on the RSS/Copyright debate

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In the past few weeks, I’ve gotten several fresh calls, four in fact (some out of the blue, some from people I know well) about RSS, aggregation, and copyright issues. I think the matter continues to have traction and importance. Two follow-ups:

– I never managed, somehow, to see a very fine reply from Nathan Yergler to a post of my own a few months ago. I had proposed a series of 5 licenses specific to syndicated online sources. (I understand that Nathan works for CC in a technical job but was not writing as a CC employee.) His sense is that there is a need for more explicit licensing of citizen-generated content, but that CC licenses (and other things, like full copyright and the public domain) already cover the five variants that I had in mind. It’s a nice argument. I have to think about whether I agree in full — there are reasons why CC Attribution 2.5 may not get the job done in full for all users, say — but if he’s right, then we’d need no new licenses, but just a campaign to get people to know about the options and to use them in ways that reflect their desires related to aggregation and re-use of their content. (Apologies, Nathan, that I’m just getting to reply now, but I managed to miss it the first time; it was a strong argument.)

– Ethan Zuckerman had a terrific post, and engendered more discussion, on just this topic. As Ethan writes, “I want to see Creative Commons succeed. I share Larry Lessig’s concern that artists of all sorts need material to enter the public domain so that we can comment, remix, repurpose and create. I release (with very rare exceptions) everything I do under CC in the vague hope that someone else will find it useful. But widespread abuse of content published under CC licenses will make creators – me included – reluctant to release content under them.”

These posts prompted me to reflect on another matter much on my mind, which is the difference between holding intellectual property rights in the first place and in enforcing them. Admittedly: I am not a fan of a strong view of copyright. Nor, for that matter, do I think may forms of patents make much sense at all, at least in anything like the form that they currently take. That is not to say, though, that I think it’s immoral or otherwise bad to hold IP rights. I think that authors or recording artists or those who make movies should be compensated; I’m not a fan of piracy. The fact that things are right now out of whack in the IP realm (see Lessig’s permission culture argument, among many other good articulations of the problem, and any number of people who have pointed out silly patents getting issued) and the fact that pre-digital IP laws are looking a bit long in the tooth in a world packed with digital natives do not change the fact that I want there to be an incentive to create and for fairness to reign in the world (i.e., for artists and inventors to be able to make a living).

What I’m coming to think is that, absent systemic reform, holding IP rights, some of which, like copyright, attach automatically, is not the primary issue. The issue is much more about what rights we choose to enforce against others and how we do it. The issue is also whether we have a system of accountability where, when we do give away some rights that otherwise would attach, we can hold others to the rights we’ve chosen to retain. This is a sticky problem, especially when choices about enforcement could, recursively I suppose, affect those rights themselves. (An issue for another day, but: this is true also of the tiny start-up that holds a software patent for defensive purposes, to create freedom of action against incumbents, and perhaps who licenses it to other firms for similar purposes. The issue is whether those rights are exercised in an appropriate manner.)

I think a key next step in the RSS and copyright discussion may not be new licenses (if Mr. Yergler is right; or perhaps tweaked ones, if that would help; or perhaps repackaged ones, so ordinary people can figure it out), but rather 1) a clearer common understanding of what people mean when they in fact license their works in this fashion and 2) appropriate systems to enforce those rights when they’re being flagrantly violated. Of course, the copyright system works just fine on this second score (perhaps too well, sometimes!), but I suppose that those of us who are wildly supportive of CC as an essential add-on to the copyright regime may have to be willing to step up and file cease-and-desist letters where necessary (polite ones, perhaps!), even as distateful as that may seem. A great deal, it seems to me, hangs in the balance of getting it right, if the trends in creativity online, syndication, search, and aggregation continue on their current trajectory.

Latest badware report

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Our project that names names of code that users should look out for, StopBadware, has released its latest instance of an application that falls outside of the scope of our guidelines. We think computer users should beware of the Jessica Simpson Screensaver (in case the name didn’t give it away to you already).

The idea of this project, in my view — yes, I am biased! — is a good one: we ask computer users to tell us about bad code they come across, or at least code they’re worried about. We put the info into a clearinghouse. Then, our team of researchers tests out the code. Where there’s smoke, we look closely to see if there’s fire. We work with a leading group of advisors and technology working group members to stay on the straight and narrow. And then we publish, periodically, what we come up with. The model comes from Jonathan Zittrain’s paper, The Generative Internet (required reading for those in our space, if you have yet to do so; forthcoming in the Harvard Law Review).

Over time, we hope that computer users will come to check with us before downloading an application, at least to know a bit better what they’re getting into (and downloading anyway, if they are not troubled by our findings). And, as in several cases so far in our first few months of operations, we hope that those of whom we write about will make adjustments, on their own, of their code according to our recommendations. We hope the net effect will be a better, safer, net and computer users who come to trust, with reason, the code that they decide to run on their PCs.

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Today, back briefly in Cambridge, MA, for a working session on our Digital Learning project, funded kindly by the Mellon Foundation. We’ll have a white paper coming out of this project in coming months.