[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.

[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.

While I don’t agree with Leigh Blackall that the Creative Commons Share Alike clause is illogical (more that it doesn’t fit into the realities of many institutional partnerships), I have come around to agreeing that it doesn’t work for me and the things I do… and I suspect it is really the same for most educators if they really examine the limitations they are placing on their work. Alan Levine started me thinking about issues with the the attribution and share alike clauses last year (one of my remaining blogging goals before I go ungently into that good night is to actually think of something– anything– before Alan does), but only recently– spurred by Leigh’s continued questioning in various forums– have I made the decision. And it feels good…

from the New York Times:

Something has gone very wrong with the United States patent system.

What was their first clue??

[ruminate ip patents BlindinglyObvious]

aka The Comedy of IP Overkill:

Some choice quotes:

IN 1982, Motion Picture Association of America head Jack Valenti told Congress that “the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone.”

BILL GATES had the 11-million-image Bettmann Archive buried 220 feet underground. Archivists can access only the 2% that was first digitized.

IN 2002, Valenti described Hollywood’s antipiracy campaign as “our own terrorist war.”

A FRENCH DIRECTOR had to pay $1,300 after a character in his film whistled the communist anthem, “The Internationale,” without permission.

THE PUBLISHER of Super Hero Happy Hour removed “Super” from the comic book title after Marvel and DC Comics stated they own the phrase “super heroes and variations thereof.”

42% OF ALL VIDEO files shared online are pornographic. No porn-sharing cases have yet been tried in the U.S.

MARTIN LUTHER KING JR.’s estate charges academic authors $50 for each sentence of the “I Have a Dream” speech that they reprint.

[ruminate ip cc index]

The Creative Commons has posted a draft of their Non-Commercial Use guidelines (pdf). As a participant in one of the many threads about the definition of NC (particularly with regards to education, where things got a little– umm– heated), I’m glad to see a relatively clear flowchart definition like this.

[ruminate, cc, creativecommons, copyright, non-commercial]

Alan Levine of cogdogblog has the lawyers after him to cease and desist because he used the phrase “Believe it or Not” in the title of one of his posts. We live in a screwed up world, made worse by pathetic money-grubbing, bottom-feeding companies like Ripley’s. Believe that or not.

I think I’m going to write a Greasemonkey plugin that replaces Alan’s excised title with the proper one when viewing the page…

[Ruminate cogdogblog copyright ripleys Believe it or not]

Speaking of people who get it, check out John Seely Brown’s presentation on The Common Sense Model [pdf] delivered at the Infocomm Technology Roadmap symposium in Singapore.

Brown gives us a simple, powerful model– in cartoons!– of why the things I talk about here (social software, educational technology, the Creative Commons) are important: the ‘virtuous circle’ of the formation of intellectual and social capital, from passive to active entertainment, extended forms of literacy, the rise of the creative class, creating->tinkering->learning->sharing->creating meaning.

[ruminate social edtech future JSB]