[image by Inju]

While detractors are convinced the issue is black and white (and noting that I am Not a Lawyer) the business model adopted by choicetweets raises some interesting intellectual property issues. And, like most interesting issues around IP, the controversy also points to the ridiculous nature of our intellectual property laws.

Regardless of how you want to interpret the Twitter Terms of Service, they can’t change the law. Copyright is automatic upon creation, but I find the prospect of Tweets being generally covered as protected creations a bit dubious… particularly when they are harvesting Tweets from streams that have not been protected and attributing the source.

In any case, that’s not really my argument. My argument is that a system that protects Twitter posts is a ridiculous proposition in the first place. If we are to have protection at all, there either needs to be a reasonable minimum threshold to make a claim on originality and value (copyright law doesn’t protect titles, for instance) or, if you are like me and find the prospect of edge-cases in making that determination inherently problematic, the whole idea of protection should be scrapped in favor of required attribution. Which TweeShirts (yeah, the title is a bit twee) do.

The problem isn’t protecting Tweets per se, but what they represent. Do we really need a system that protects, by law, quotations of less than 140 characters? Why not 100? Or 50? I’m astounded that someone would, even in jest, recommend making a shirt with a song lyric in hopes of getting the RIAA involved. Not merely because any invocation of that flesh-eating zombie of an organization turns my stomach, but because of the ridiculousness of a world in which people expect that [insert a 140 character or less quote from your favorite lyrics here] should be protected! I’m not denying the originality and creativity displayed by some Twitter-Meisters, just maintaining that in a networked world dealing with networked utterances, there is a relatively high intellectual value in the attribution and linking process itself. There’s nothing to prevent anyone from figuring out clever ways to use public domain material which, if attribution is required, feeds back into the larger system. Until then, I’m with Keith on this one.

In some great news on an otherwise trying day, Harvard Law School has become the first institution to commit to open access to all of their publications. This is a great step in the right direction and I hope soon see other influential institutions following their lead!

[linktribution: @phaedral]

[photo by Éole]

[Part 2. See: Part 1]

What I would not like to see emerge from the BNN imbroglio is a movement supporting the addition of even more restrictions to an overly-confining copyright system that is already heavily slanted towards one class/kind of creator and their sometime corporate backers/users. Copyright law has already gutted what should have been the richest information commons we have ever seen by imposing restrictions that are ridiculously extreme in both form and length. Adding objections to systems which provide added value by making use of (the already too limiting) Fair Use provisions to the vast repertoire mass media interest use to enrich themselves at the expense of the entire creative culture seems precisely the wrong way to go.

It’s perfectly OK with me that Fair Use provisions allow people to make a profit by building on the work of others. Without such a system we would have to do without many useful publications and artifacts: from scholarly criticism and review that must cite from sources to be useful, to indexes and concordances which owe their existence solely to the original work(s), to news and content summary and analysis services and publications used by a variety of people and businesses.

Further, figuring out ways to quantify and share the value of attention and respect paid to words and work by readers is a fundamental need that comes as part of the explosion of the new social, participatory web. Sites which provide added value to and through existing works based on reputation, attention, suggestion, and various social acts of consumption and sharing are a key to the humanized network we are all living in.

That profit on these activities can be accrued by people I don’t like and/or in service of philosophies I don’t subscribe to– or even used in a profit-free way by and for the same– is immaterial in the same way that the content, philosophy and speaker is immaterial to their right to be protected by the tenets of free speech. Which means there are limits, but they aren’t based on profitability or philosophical disagreement. Despite feeling this way rationally, I’ve had my own “AHA!” moments of frustration and resentment when my own words have been re-used in ways that were personally vexing.

To my shame I have also, in a moment of extreme frustration, used the protections of Fair Use as a cudgel to attack someone I felt was being unfair to me, threatening to continue using fair excerpts of their words and posts despite their expressed desire that I stop doing so. Taking advantage of Fair Use provisions to hurt or annoy someone (which is different from doing so in service of another end that might also have the same effect) is a passive-aggressive act of the highest order, like prominently linking to someone who has repeatedly asked that you not do so. Legal? Yes. Ethical? No. Unprofitable? Almost completely.

Instead of trying to find ways to add more warp to an already twisted body of legislation, people who are perturbed with the way a site like BNN is operation should be doing just what they are doing now: target people who run ethically questionable if probably legal sites using the same system of social information sharing and reputation that make such an operation potentially profitable in the first place. Rally the site-owners to protest and ask for removal, have all of them note their grievance(s) clearly on their pages so people following from the aggregating site are apprised, foment the discussion in the blogosphere, and counter with– and promote– more ethical reputation sites.

As a general rule and for reasons both sociological and economic, we have more power as individuals to bring about change in this area through our social action than we do through legal action. And if we find that we don’t have the support from the others we feel have been wronged then our first action should probably be to look at ourselves and our cause to figure out why.

  
[photo by lovelypetal]

[Part 1. See: Part 2]

My friend Victoria’s recent entanglement with a bloggregator site (BNN) that was aggregating her site without permission has me thinking again about the dissonance between provisions for fair use and the way the current information environment operates.

The basic outline of the problem is this: BNN apparently used to, without asking for any permission, re-purpose the full-content feeds of the sites it aggregated without providing any links back to the source (not to mention any easy way to opt-out). The illegality of that enterprise is obvious at the first order of operation– all else aside, you can’t simply publish, in full, someone else’s content regardless of what else you are doing. Rightly, many people protested this, including some of Victoria’s peers for whom the matter still resonates. [redacted as I can find no evidence that this was ever true of BNN]

However, the situation is this: BNN uses 50-word excerpts of the original feed, with the title and the “more” link both pointing back to the original source. The site provides a place for comments and a rating system, making it a form of reputation site. The new configuration is arousing similar ire even though the changes to it make the legal situation considerably different.

As I see it, what BNN is doing is legal. Making a legal case against BNN’s current practice is a non-starter and, even if it weren’t, much of the legality or not of an action governed by copyright law is practically determined by whoever has pockets deep enough to wage a successful legal challenge or defense.

But there’s a good case that BNN isn’t being very ethical… or at least that the owner isn’t paying much attention to how it could operate in a way that would be more profitable, ultimately, to both BNN and the bloggers it aggregates. Here are a few ways it could improve:

• Most importantly, ask site owners if they would like to be included (and if they insist on not asking permission, which seems foolish, provide a clear opt-out system other than waiting to receive invective-filled email from unknowing contributors)
• Recognize not just the source of the information by link, but by title– accompany each entry with a simple citation of original blog’s title and address
• Beef up the associative links to the original sources by providing “more stories from” and “related stories” links with each article
• Extend the voting, commenting, and click-through system to create some kind of leaderboard or other reputation-based ranking system to recognize those who are receiving increased attention [updated: this, among other things, is being done]

In other words, work to establish the service as a legitimate and more valuable enterprise rather than the quickest way to approach making a profit regardless of the ethics in doing so.

This won’t necessarily alleviate the discomfort that comes from finding out that someone (or some organization) you don’t like is using your words. Fair Use is essentially a kind of open license focused on limited bits of content, and like open content initiatives, anyone who puts material out into the world may experience the discomfort that comes from the flip-side of openness and rights…namely that the same rights that protect and allow you to participate in the intellectual commons protect and allow for those dissonant uses as well. Which is why I’ve not only given up on the prospect of preventing that kind of use, but I’ve made (and am much happier) the philosophical switch that the value of enriching the commons outweighs the ramifications of limiting my contributions and that the positive uses far outweigh the negative uses. That’s why I not only adopt open content licensing such as Creative Commons licenses for as much of what I write and share as I can, but I even adopt one of the more liberal licenses of that kind, requiring only attribution with all other uses being permissible

[image by jcortell]

My friend Robert has shared his disbelief and disdain regarding  a petition endorsed by Lawrence Lessig that attempts to deal with the serious problem of “orphaned” works. Robert has labelled this as “selling off the public domain for cheap.”  Let’s look at what Lessig and others were proposing… because it was a good idea five years ago and still is.

Under current copyright terms, anything published since 1977 won’t enter the public domain until 2047 at the earliest. Writing, published or or not, is protected for the life of the author plus an additional 70 years. Personally, I believe these terms to be egregious in scope and length, but for now I just want to consider the length of the term that works are kept out of the public domain.

Lessig’s proposal takes a very incremental step towards changing the terms of copyright by proposing that after 50 years, a copyright holder would need to pay $1 (yes, one dollar) to extend their copyright for the rest of the mandated term. If they don’t, then the work goes into the public domain at that point. This isn’t selling anything of cheap because at “worst” the original copyright term is maintained while, at “best” the material goes into the public domain at least 25 years earlier than it would have.

[photo by schmich]

Regardless of one’s belief about intellectual property, I’d hazard that there’s pretty widespread agreement that if there is no party left that has an interest in a work’s copyright– whether because the person or company no longer exists, or because they simply don’t feel there’s any business value in continued ownership– then there is no reason that work shouldn’t move into the public domain. But this simple idea is constantly thwarted by current copyright law, which has no provision for such “orphan” works. Trying to find the copyright holder of works even a decade or two old is an exercise in frustration. Even 20 years out a significant number of copyright holding interests don’t exist at all, and if they do they have no further active interest in the work.

Here’s how Lessig’s proposal would work in practice. Let’s say I published a book of poems 20 years go. In 2038, if I– or whoever owns the copyright at that point, which could be the publisher, could be me– don’t pay the buck, then the work goes into the public domain. If I (or the company) do, the copyright is maintained for the full term (the date of my death + 70 years, or at least 2078 since I am presumably alive right now). The payment of a dollar– which is meant to be a token amount– not only keeps the copyright in effect, but it also has the effect of making visible who owns the copyright, making it much easier for those seeking to secure the use of a work to do so.

I don’t see a prohibitive downside. This isn’t selling the rights to anyone, the extension is only available to the current copyright holder. If the copyright holder has a continued interest in the work, the token payment isn’t going to prevent them from taking it, and they presumably would be keeping track of copyright duration as is their obligation.

[photo by PugnoM]

The only objection I have to the idea is that it isn’t nearly enough. Waiting 50 years might make it more palatable to media interests, but as a strong supporter of Creative Commons and other open licensing– and, in some cases, the Founder’s Copyright terms– I would think 20 years before requiring an act indicating interest would be a good start… in conjunction with working to get the length of copyright reduced to a much more reasonable term in the first place.

I can see where Robert is coming from if his objection is simply that the proposal doesn’t go far enough– or even that there should be no copyright at all– but I don’t see how it’s anything but an improvement over the current situation. Robert’s implicit position that “IP is a fiction” and that, presumably, there should be no copyright will have to be the topic of a different post.

Creative Commons has just released a new comic explaining Creative Commons licenses for a general audience. Looks useful for the inevitable “what do you mean” questions about CC and for sharing with (indoctrinating) youngsters.

Normally I’d just throw something like this in my link log, but one of the things I’ve recently changed my mind about is giving in to the constant pressure to be fair and even-handed… even ambivalent. No longer! At least not all the time (I forgive you in advance if I haven’t struck you as being particularly impartial up until now).

[photo by snorkeldaddy Brett]

Creative Commons– and addressing our horrific system of copyright and the subsequent gutting of the information commons thanks to crooked big media and other special interests– is one of my hobby horses.

This seems like a good place to point out my friend Robert’s very useful pointer: Ross Mayfield on Strong Opinions, Weakly Held.

[Linktribution: someone on my Twitter network that I can't locate now]

I just assumed this kind of copyright evasion (breaking copyright law behind locked doors with the rationalization that “since it’s private it’s OK”) was common knowledge and practice. I know that it’s common enough to be a de-facto on-the-ground operating policy at many institutions that is tacitly overlooked by their administration.

There’s a reason it happens (and it’s not just cluelessness about alternatives or lack of effort, though both can play a part)– there’s just a lot of copyrighted material that is very difficult if not impossible to replace even with a lot of time and effort spent trying to do just that. Such things might have a fair amount of complementary material, but that’s not at issue. We can’t have it both ways, demanding flexibility and spontaneity and responsiveness to student direction and expect faculty to find alternatives to the clearest, most obvious, and most available resources available to them.

And I’m not even talking about times when the very particular media artifact is the topic of discussion!

As an educator (and technical supporter of educators), it is when facing this kind of copyright choice– break the law quietly or sacrifice something at great educational cost– that I most seriously wish for what so far seems impossible: complete transformation of copyright law. The problem is, I don’t believe it will happen. Which makes Creative Commons and other initiatives that bridge the chasm between commercial venture and reuse our best alternative for promoting healthy change. And not just for educational efforts… the need for shared cultural artifacts goes deeper and is more important than that.

A snippet from the Wikipedia entry on Donnie Darko:

In the film, Donnie refers to “Married with Children” (1987) and, more specifically, Christina Applegate during conversations about sex with his therapist. The script initially called for Donnie’s fantasies to be about Alyssa Milano. This had to be changed however when Kelly was denied the legal rights to reference her in this manner.

Does it strike anyone else as just a wee bit ridiculous that we live in a society where the right to have a fictional character refer to an actress who portrayed another fictional television character can be denied at all?

Mark Helprin should know better… he’s smarter than his disingenuous editorial on copyright would have you think… intellectual property the equivalent of physical property? Eternal copyright? It made my blood boil, and apparently that of many others. Predictably, Eugene Volokh has one of the best responses and Larry Lessig has a wiki page devoted to debunking Helprin’s copyright bunkum. PrawfsBlog has a nice roundup and makes an interesting point about Helprin’s argument…

[linktribution: Jim Groom]