Nasty Old People, Give It Away And Pray And Releasing Movies For File Sharing

from the another-one dept

We were just talking about some indie filmmakers who were happy with the extra attention they've been getting from having their movie "leaked" on BitTorrent, and ChurchHatesTucker alerts us to another story of filmmakers embracing file sharing. This one is actually from a few weeks ago, but a Swedish filmmaker made a low budget indie film called Nasty Old People and released it under a Creative Commons license, along with a request for donations. The link is to Metafilter where there's an interesting discussion about whether or not the experiment is a "success" or a "failure." It's a bit of a mixed bag, as at the time of the discussion, the filmmaker had made back 20% of the film's budget and there were questions if it would get much higher. Thus, it was easy for some to quickly call it a clear failure.

Of course, it's not really that simple. First, I've said for years that I'm no fan of "give it away and pray" business models, which really aren't business models at all. While it works sometimes, it's pretty much a crapshoot, and never strikes me as a real business model. So, on the whole, I'm not too surprised that it didn't bring in much more than 20% of its budget in 2 weeks (though some compare it to blockbuster movies that can often make about the same % of their budgets in the early going.

However, if we compare this situation to what would have happened otherwise (i.e., if the movie were not released this way) the situation becomes a little more interesting. This was a very low budget indie film that likely would not have received any distribution at all. At best, the filmmaker perhaps could have self-printed DVDs, and would have been lucky to have sold a dozen or two. She could have tried to enter it into various film festivals, but that's quite difficult, and even then there's a pretty good chance that the movie doesn't end up actually making any money. Yet, in this case, she not only made money from donations, but the film is getting picked up and shown in theaters around the world. So, compared to that situation, things actually look better than the alternative.

On top of that, while this particular movie may have been a net loss, she could use it for marketing herself. She can go around and show the movie to others, and perhaps use that to get funding for a larger scale project or another film that's released with a bit more of a complete business model. Nasty Old People becomes marketing and a promotion for Hanna Skold. It has to be better resume filler for a filmmaker to talk about tens of thousands of people downloading and watching your film than just going in cold saying you want to make a film. And, in fact, she's already hard at work on a new film script, with many people who became fans of Nasty Old People following along and interested in seeing what the new script is like. So, as a marketing tool, it sure seems like giving this movie away has been quite useful.

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Olympics Clarifies Problems With Flickr Photos... But Still Doesn't Make Sense

from the you-don't-own-the-photos dept

Last week, we wrote about the International Olympic Committee's complaints concerning a guy, Richard Giles, who had posted some images he took at the Beijing Olympics on Flickr under a Creative Commons license. At the time, it wasn't entirely clear if the complaint was the license or that the photos were up, at all, but as we noted, either way, it didn't make sense. The IOC has responded and said the main complaint is with the Creative Commons license, but, again, it's difficult to see how the IOC has any argument at all. The photos were taken by Giles, and thus he has every right to license them as he sees fit -- including under CC licenses. Furthermore, as Thomas Hawk points out in the link above, once you license something CC, you can't go back on it. It's still not clear why the IOC sees this as a bad thing. Giles is helping to promote their event. For free. Next time, maybe he should just send them a bill.

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Is Creative Commons Bad For Copyright?

from the taking-people-away-from-the-issue dept

Copycense has a rather thought-provoking editorial pondering whether or not Creative Commons is good or bad for copyright. I have to admit that I've long felt similarly about Creative Commons in general. I don't use any of their licenses, because I don't necessarily see the point. We've declared in the past that the content here is free for anyone to do what they want with it, and thus I feel no need for a Creative Commons license. But, at the same time, there were some underlying issues about CC that have bothered me, concerning its continued reliance on copyright as a basis for making it work. I admire the folks behind it and the very idea of using copyright itself to carve out a more reasonable way of dealing with it, but I've always wondered if the use of Creative Commons, while a nice solution for many users, helps to cloud the problems with copyright law. This is the same point Copycense makes, noting that one of the major problems with it is that it takes copyright out of a policy debate, and makes it a contractual issue.

Copycense was okay with this in the past, back when it seemed unlikely that there would ever be a real national debate on copyright, but given recent events in Canada, it seems that such discussions can actually occur:

We conclude now... that the continued use and prominence of Creative Commons licenses actually obscures the real copyright issues we face in this country, and keeps Americans from settling on the proper parameters of digital information use, access, retrieval and preservation in the 21st century. It is too easy for a creator to slap a CC license on a copyrighted work, promote one's apparent knowledge of (and sensitivity to) copyright issues through a CC badge, and feel good about oneself, almost like the purchase of hybrid vehicle becomes one's outward signal to society that its owner is dedicated to stopping global warming.

Indeed, there seems to be a whole aura attached to using a CC license -- or perhaps more specifically, slapping that CC badge on a copyright-protected work -- because it seems to signal that the person using the license is thinking progressively about intellectual property, information policy, and related issues....

But we believe the real question to be asked is how we can calibrate copyright law to make it equally usable by, and effective for, all Americans. To this end, we believe the use of CC licenses actually avoids the question of what U.S. copyright should be in the 21st century, and how the law should best serve its citizens, who now are as likely to be creators of copyrighted works as your average conglomerate record label. This avoidance is particularly problematic given the prominence and use of CC licenses; the organization's position -- real or perceived -- as the antidote to a broken copyright system; and the very real possibility that few who use the licenses really know what they mean....

As Canada is doing now, the U.S. needs to have deep, complicated, and perhaps even painful conversations about information policy; the history, purpose, uses and scope of copyright law and policy in our digital information ecosystem; and the reform that needs to happen in both areas.

We do not believe the Creative Commons license scheme fosters that conversation. Instead, we believe the scheme muzzles this conversation by promoting a contractual bargain in lieu of balanced and calibrated legislation and policy. We hope that in the future, Creative Commons will put more of its considerable intellectual and economic resources toward resolving the problems with copyright law instead of promoting contractual workarounds. In the best case scenario, with a balanced and effective law that serves citizens and corporate owners equally well, a Creative Commons license is unnecessary. This should be the goal.

There's a lot more at the link, but I did want to pull out those sections, as making some points worth thinking about. While I always cringe at calls for "balanced copyright" -- which I think misses the point of copyright (a truly successful copyright law involves making everyone better off, rather than "balancing" interests) -- it is worth thinking about Creative Commons impact on the debate over copyright.

But... I'm not sure that I would go as far as Copycense in condemning Creative Commons. Many of the people behind it went through (and are still going through) numerous battles to push back on the excesses of copyright. Creative Commons wasn't the solution -- it was a helpful (and hopefully temporary) oasis in a bleak desert, following numerous well-reasoned, but ultimately futile attempts to push back corporate expansion of copyright. And while I agree that there are problems with shifting the issue to a contractual agreement (and the post highlights some of the many legal problems CC licenses may cause), I think that CC, as a whole, did turn a lot more people onto the some of the problems with copyright law as it stands today. In many ways, CC is an easy way for people to first start to understand the problems of copyright law, in understanding why CC is needed.

From there, many who do understand this have started questioning the larger issues around copyright -- and many of those involved with CC have continued to fight that good fight, rather than just assuming that CC is "the answer." So, in the end, I agree that we should be clear to recognize that Creative Commons and efforts to really rethink copyright are two separate things, but that doesn't mean that Creative Commons is necessarily bad for copyright policy issues. It has been, and hopefully will continue to be, a real stepping stone to getting more people to recognize these bigger issues. In fact, I'd argue that many of the folks now leading the debate for more reasoned copyright policy in Canada first came to understand these issues via their exposure to Creative Commons' licenses.

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That Blurry Line Between Commercial & Non-Commercial Use Still Troubling For Creative Commons

from the is-this-commercial-use? dept

First off, I should say that I respect what the folks over at Creative Commons are doing, and think they really do have the best interests of content creators and the public at heart in their plans -- but I've always been a bit uneasy with the whole setup of Creative Commons -- some of which I expressed last year in discussing the difficulty in distinguishing commercial from non-commercial use, as is necessary in many CC licenses. As I wrote at the time:

But it's this blurring of "personal" and "work" lives that again has me pondering if there really is a meaningful distinction between "commercial use" and "non-commercial use." Some of this debate first came about years ago, when some web publishers claimed that their RSS feeds were "for non-commercial use only," but what does that mean? If I read your site as part of my job, have I violated that rule? If I learn information from your feed that allows me to make money, have I violated that rule? More recently, there have been proposals to separate copyright violations, such that "non-commercial use" is allowed. But, again, you quickly run into very questionable scenarios. If my personal blog has Google AdSense on it, is it commercial use? If I end up getting a job because of my "personal use" of your content, does it suddenly morph into "commercial use"? The questions get more and more confusing, and the mess would make less and less sense.

It seems that Danny Sullivan has come across the same issue, and is taking both Flickr and Creative Commons to task for the ambiguity in their licenses which is so confusing that even those who are using CC licenses don't seem to totally agree with what their own licenses say. He details a variety of stories, where it's simply not clear at all what is really allowed under the CC license being used. If a commercial blog uses and attributes a photo that has a "non-commercial use" only license, is that infringing? Or is that "non-commercial use" only limited to not selling the image. But some might argue that you were "selling ads off of the image." It all gets quite blurry fast.

To their credit, the folks at Creative Commons have been working hard on trying to deal with the ambiguity (and part of the reason for the original post I linked to at the beginning of this story was a survey they were taking on this very subject). But it's quite clear that there's still an awful lot of ambiguity that isn't really helped by the phrase "non-commercial use."

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Mark Helprin Stole From Techdirt Commenters (Using The Logic Of Mark Helprin)

from the where-should-he-send-the-check? dept

Last week, I wrote about Mark Helprin's error-filled Wall Street Journal op-ed that was really just an attempt to generate attention for his new book -- attacking everyone who criticized his 2007 NY Times editorial. I, of course, am one of those who challenged Helprin's reasoning at the time. Of course, as much as I write about this stuff, I'm no Larry Lessig or James Boyle, and I certainly never expected that Helprin would even bother to read what I wrote. And, as I've been reading his dreadfully written book, I didn't notice anything to indicate that Helprin was directly addressing any of the points I raised.

However, I was just reading Larry Lessig's long and thorough takedown of Helprin's book, and noticed something odd. Early on, Lessig states:

The product of this feeding, Helprin suggests, is just so much trash. The work of the Internet is an intellectual waste. No serious reader, or especially writer, should pay any attention to this waste.

But then here's the astonishing fact about Digital Barbarism: Though the Internet is a waste, though blogs are "subliterate" and wiki's are written "the way Popeye speaks," Helprin draws exclusively upon the Internet to form the knowledge he needs to launch his attack. He cites no book, or scholarly article, that might help explain the copyright puzzle that started him on his odyssey. Literally everything he points to to explain the weirdness that is copyright is either a blog, or a wiki, or an essay in an Internet publication.

Now I like the Internet as much as the next guy, and I guess I had never really had to think about the question before. But Helprin has convinced me that you can't understand the subject of copyright law by simply reading blog posts. To get it, or at least to get it well enough to write a frakking book about it, you're going to need to read something other than techdirt.com.

Emphasis mine -- obviously. Now, while this might seem like a bit of a slap at Techdirt, I actually agree -- wholeheartedly. I certainly hope that no one gets their copyright education solely from any blog, whether it's written by me or by William Patry. However, it struck me as odd that Lessig specifically called out Techdirt, seeing as I hadn't even noticed us being mentioned at all in the 1/2 (or so) of the book that I've gotten through (and I've never spoken to Lessig, nor seen him mention Techdirt in the past). So, I pulled out my copy of the book, and went to look at the endnotes for the first time... and realized that a rather large number of the quotes that Helprin spends his time deriding are pulled from Techdirt. But not from what I wrote... but from the comments (which he refers to, oddly, as "sections").

Now, I'll be the first to admit that we have all types of folks who show up in the comments -- from incredibly intelligent knowledgeable experts in the field of copyright law to interested amateurs to the totally clueless to trolls. To pick and choose a few crazy comments, and position them as if they're representative of the common views of folks questioning Helprin's logic, is incredible. I could equally pick out some of the more ridiculous pro-infinite copyright comments on Techdirt, and make the same nutty claims about those who support stronger copyright laws. Just yesterday, someone wrote in our comments:

There is never a proper debate for copyright theft. If you create it, then you own it. Many countries have unlimited copyright. Maybe that's what North America should consider. If it is created by your intellect then it is yours. You may pass it along as you wish, but it is yours forever.

Now, this is all sorts of wrong, but I assume this is one incredibly misinformed individual, rather than a representative of, say, the RIAA. However, Helprin has no such qualms. He takes random comments from up and down that Techdirt post, and assumes they represent the secret agenda of groups like Creative Commons (who he refers to as an "informal" group building software to abolish copyright -- again, all sorts of wrong).

Even more amusing? With at least a couple of the comments that Helprin quotes, he's clearly taking them totally out of context. For example, there is one point in the book where Helprin goes against people who pointed out that he had written a book called Winter's Tale, and assumed (incorrectly) that it was based on Shakespeare's The Winter's Tale. In it he quotes a commenter on Techdirt ("section 20") who wrote: "So then Halpron's the guy who did the "West Side Story" job for Shakespeare's The Winter's Tale?" and uses that as evidence of us morons critiquing him. Except, he left out the rest of that comment, which made it clear that the whole thing was a joke: "Was it any good? Have they made a movie out of it yet, or was it only on Broadway?"

And, of course, even for the people who legitimately thought that Winter's Tale was based on Shakespeare, that mistake is certainly no more egregious than the many, many, many mistakes that Lessig lays out in his review of Helprin's work -- specifically taking him to task for clearly not having bothered to read a single scholarly piece on copyright, but relying entirely on hand-chosen silly comments on Techdirt.

Among the errors are things like, "It would be one thing if such a revolution produced Mozarts, Einsteins, or Raphaels, but it doesn't," to which Lessig notes: "Helprin apparently didn't notice that none of those creators enjoyed anything like the "copyright" of today. One might as well say the world of non-copyright gave us Mozart, Bach and Beethoven, while the world of copyright gave us Britney Spears. That too would be a bad argument, but just [the] sort of argument that is at home in this book." It's actually even worse than that. Some of Mozart's greatest works were derivative works that likely would be considered infringing today. Helprin also seems to not know what was in the last copyright extension act, known as the Sonny Bono Copyright Extension:

Helprin writes: "Previously, a copyright assigned to a publisher or a studio would remain there for all the days of its life. Now, and thanks to Sonny Bono, if it is not a work for hire (which nothing should or need be), a licensee can keep it for only thirty-five years, after which the rights return to the author, the composer, the artist, or the heir." (127). Wrong. The Sonny Bono Act didn't create the termination right. It merely extended it.

Yet, Helprin believes that a random small error (which was actually part of a joke by an Anonymous Coward on Techdirt) gives him proof that all copyright critics are clueless? Even if you consider the "errors" of equal magnitude, we're talking about an anonymous quick jokey comment vs. a "professional" book by one of the nation's top authors, from a top publishing house with (one assumes) an editor.

Still, the most amusing part of all, was Helprin's attempt to defend copyright infringement as being the same as theft -- an old argument, and one that's been dismantled many times (including, of course, by the Supreme Court, who famously stated: "interference with copyright does not easily equate with theft, conversion, or fraud. The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use"). However, Helprin doesn't even bother to look at the intellectual arguments around this issue, preferring to use an emotional tale from his youth about "stealing" an ear of corn in the field, arguing with a farmer about it, and then realizing the incredible importance of never "stealing" anything.

Yet, as Lessig points out:

So should Helprin have been ashamed that he stole the farmer's food. Of course he should be! What kind of confused mind would think it right to take another person's property? There are a million reasons Helprin's juvenile behavior was wrong, not the least that it would deprive the farmer of a chance to profit from the food he was growing. Helprin's taking that ear of corn meant that the farmer couldn't sell it. It is inconceivable that this should even have been a question for him.

But what's less clear is what Helprin thinks follows from this moral tale. Does he think that it shows that one can't "take" another person's words? That when, for example, I quote a sentence from Helprin's book in this review, I am doing the same thing he was doing when he stole some corn?

Of course, as Lessig then notes, the quoting is fair use -- but according to Helprin's own corn-story description of the importance of never stealing even an ear of corn, any "taking" of one's words would also be stealing. So, by that reasoning, considering how he quoted (by my count) 12 separate comments from the Techdirt story, one can conclude that Helprin clearly believes he has stolen from the commenters here twelve times. If he's willing to send us our royalty check, I'll make sure the money is distributed to our commenters. Mark, we're waiting! In the meantime, I can't wait to see what comments you guys make on this post. Be sure to provide only the best quality stuff, since it may be the raw material for Mark Helprin's next book!

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If This Is The Sort Of Writing That Strong Copyright Creates... I'll Pass

from the let-it-go... dept

Two years ago, we were among those who piled on in response to author Mark Helprin's NY Times op-ed piece in which he argued that copyright should last forever. We explained why this showed a fundamental ignorance of the very purpose of copyright law. Of course, rather than inform himself, it appears Helprin spent the past two years fuming against those who tried to educate him. He's written an entire book bashing the "digital barbarians" who are trying to destroy society by picking away at copyright. I'm about halfway through the book, and I'd finish it faster if I didn't have to keep whacking my head against the wall wondering how someone could fail so spectacularly at basic fundamental logic and comprehension. I'm planning to write up something of a review (along with reviews of some other, much more worthwhile books) at some point soon.

In the meantime, however, the Wall Street Journal saw fit to give Helprin space to embarrass himself royally earlier this week. The piece attacks consumer rights advocates as being advocates for "thieves" (don't get me started...) and implies that those fighting against copyright extension are all part of a plot of some big tech companies to get all information for free (and destroy society at the same time). It goes on to suggest (despite the fact that copyright law has been changed in one direction and one direction only over the years) that those of us concerned about the massive expansion of copyright have been winning battle after battle with almost no opposition:

So here we have a city -- the hypothetical city and New York itself -- deeply dependent upon what copyright protects but unaware of the threat it faces, even as, sector by sector, it begins to fall. Are you -- were you -- in publishing? Are you, or were you, a journalist? A screenwriter, composer, architect, designer, photographer, writer, or in a business that brings the work of these people to the public? What have you done to protect your life's blood and to guarantee the continued independence of your voice? As distressed as you may be now or not long from now, should copyright go the way of all flesh, some of you may soon be unable even to recognize your own profession, if indeed it continues to exist.

As ridiculous as his book is, at least his argument there is laid out with a bit more effort. This piece is just pure tripe, backed up with nothing even resembling fact. It's odd that a publication like the Wall Street Journal would allow blatant falsehoods to be published in its pages, but if that's what it takes these days to defend copyright... I guess it shows how desperate the defenders of Big Copyright have become.

K Matthew Dames from Copycense has taken an initial stab at correcting many of Helprin's errors in great detail, citing numerous sources to show just how incredibly wrong Helprin is over and over again.

Still, the thing that struck me is that Helprin's argument does what many other "defenses" of the elitist (and purely imaginary) notion that there's some war between "professional content creators" and those weak-minded "amateurs" who are trying to destroy them seem to do: it disproves its own point. For all the talk about how copyright and other tools of "protection" against the riff raff guarantees higher quality output, all we get is totally indefensible material like Helprin's. The defense of copyright produces misleading, poorly thought out, poorly defended and flat out wrong content such as Helprin's. Meanwhile, the thoughtful, reasonable, useful analysis comes from sites like Copycense. In the end, that may be the best response to Helprin's work. His own words disprove his own thesis.

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Creative Commons Adds A 'No Copyright At All' Option

from the go-go-public-domain dept

Just two months ago, we were pointing out how difficult it was to opt-out of copyright and put content into the public domain. We noted that it wasn't solved by Creative Commons -- who had a series of licenses that all relied on copyright, and none that removed all restrictions. Looks like the CC folks were listening (not to me, necessarily, but to others who raised similar issues). They have now released a new offering to help content creators declare their work to be in the public domain. They're calling it CC0. While it looks just like other CC licenses, it's not actually a "license," but a waiver/declaration that the content is in the public domain. This is a fantastic move, and we'll certainly be checking it out in more detail to see if it makes sense for us and the content posted here.

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How One 'No Name' Musician Used Free Music To Build A Following

from the funny-how-that-works dept

We've joked in the past about how people always look for ways to make "exceptions" rather than "rules" out of every example we use to show how adopting business models around the economics we discuss works well. So, if we show a big name band being successful, we're told it only works for big bands. If we show a less well known name doing well, we're told that it only works for no names, but that it could never work for big names. Someone in our comments jokingly referred to this "exceptionalism" as "Masnick's Law." Hell, in a post that once described both big name bands and no names being successful, someone in the comments complained that it might work for big names, and it might work for no names... but it couldn't possibly work for the vast majority of musicians in the middle.

So, the best we can do is continue to show examples of how it works... for musicians of all "sizes" and levels of fame. One of Techdirt's longtime readers, and a well known "social media guru," Adam Singer, sent in a very personal example: himself. It turns out that, on the side, he's been something of a hobbyist musician. After years of trying to sell his music from various sites and getting nowhere, he went free and found an entirely different experience. He chose a Creative Commons license for his music, and it was like "magic." Because people could easily pass around and share his music, suddenly he had a following. Many more people heard his music, even to the point of people creating a profile page for his music on Last.fm, his music showing up on popular music blogs and internet radio programs -- and even people asking to commission him to write new music for them. To say that Adam is a convert would be an understatement.

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Amazon's Best Selling MP3 Album For 2008 Was Available Legally For Free

from the give-people-a-reason-to-buy dept

As some of you may know, in a week and a half I'm giving a presentation at the music industry MidemNet conference, focusing on how Trent Reznor's various business model experiments highlight the future of the music industry. I'll be putting the final touches on my presentation this week, and it's great to find one additional data point: the top selling MP3 download on Amazon last year was Nine Inch Nails' Ghosts I-IV album, which you probably know Reznor put under a pretty open Creative Commons license (and even gave away a bunch of the tracks himself). In other words, you could go on pretty much any file sharing system out there and legally download the music for personal use... and yet it was still the top selling downloadable album (this is on top of all the money earned by Reznor's other business models associated with this album). Certainly puts a nice little cherry on top of the theme of my presentation.

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When Life And Work Blend, Everything Is Commercial Use

from the welcome-to-the-way-we-live dept

I was recently having a talk with a friend who was trying to determine what to do next with his life. He's not happy with his job and wants a "goal" for the future -- but isn't really sure what he wants to do. I suggested focusing on a hobby in the short term and devoting plenty of time to it. He felt that was the wrong approach, because a hobby is separate from a job, and the two would never connect. While that could happen, the internet today has made it increasingly easy to turn a hobby into a job in some way or another. It's not that you need to turn a hobby into a job. Sometimes it's good for a hobby to just be a hobby. But, if you focus on what you're passionate about, I think eventually different job opportunities start to come to you.

But it's this blurring of "personal" and "work" lives that again has me pondering if there really is a meaningful distinction between "commercial use" and "non-commercial use." Some of this debate first came about years ago, when some web publishers claimed that their RSS feeds were "for non-commercial use only," but what does that mean? If I read your site as part of my job, have I violated that rule? If I learn information from your feed that allows me to make money, have I violated that rule? More recently, there have been proposals to separate copyright violations, such that "non-commercial use" is allowed. But, again, you quickly run into very questionable scenarios. If my personal blog has Google AdSense on it, is it commercial use? If I end up getting a job because of my "personal use" of your content, does it suddenly morph into "commercial use"? The questions get more and more confusing, and the mess would make less and less sense.

These days, it seems that the distinction between personal, professional, commercial and non-commercial are becoming increasingly meaningless -- and that's not a bad thing.

With that said, I have to agree with Gordon Haff over at News.com that Creative Commons is making a mistake in trying to better define the meaning of "commercial use" for its "non-commercial" licenses. I'm already struggling with its current definition. I'm working on a presentation for a conference I'm attending next month, and found some images that are under a CC license that allows non-commercial use. I'm not getting paid for the talk itself, but I am doing it as a representative of Techdirt, which is a commercial entity. Is that commercial use? The presentation isn't about our business, though, but about what I usually write about here. Is that non-commercial use? I'm assuming it's non-commercial use, but these days, I have a hard time understanding what the difference is at all, and Haff is right that it's likely to lead to more confusion. The real answer is to simplify CC licenses, not make them even more complex.

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Is Putting Change.gov Under Creative Commons Really A Big Deal?

from the help-me,-I'm-missing-something... dept

There's been plenty of attention paid to the news that the website for President-Elect Obama's transition team, Change.gov has been placed under a Creative Commons license, allowing others to make use of the content with attribution. However, I'm a bit hard pressed to see how this actually is a big deal. The whole thing is made a bit odd by the fact that federal government content is not covered by copyright, so anything that comes out of the White House is in the public domain. But, apparently since Obama has not yet been inaugurated, the campaign can still claim copyright on the content. But, why would they? Rather than going with a CC license, why not go all the way and put the content in the public domain? After all, in two months, all such content will be in the public domain anyway? It seems a little odd, counterproductive and unnecessary to add more restrictions to the content than there will be once Obama is actually in office. If the Obama team really wanted to do something meaningful concerning the content on the site, they could follow the advice of Tim O'Reilly and go beyond just putting the content in the public domain and also add revision control, thereby committing to alerting people to any changes to the content. Now, that would be an impressive change.

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Does Court Ruling Over Artistic License Conflict With Other Copyright Rulings?

from the getting-into-the-weeds dept

Both Slashdot and Larry Lessig are cheering about a CAFC (Court of Appeals for the Federal Circuit) ruling concerning the scope of various "free" licenses (pdf) like the Artistic License or Creative Commons' licenses. It's an interesting ruling, overturning a lower court ruling. The details are actually connected to a case we wrote about a few years ago, though that was focused on the patent questions related to this case, rather than copyright.

The case involves a guy who created some "free" software that allows users to program model railroad train systems. A company used some of his software in their own commercial offering, and, in doing so, violated the terms of the Artistic License he was using. No one seems to dispute that the Artistic License was violated. The question before the court is what that means -- and whether the end result means that the creator of the original software has a claim on the breach of the license, or if he can sue for copyright infringement. The guy who created the software, Jacobsen, claims that if you violate the Artistic License, then it reverts to copyright infringement. The makers of the commercial software, Katzer/Kamind, counter that there is no copyright claim here, as they merely broke the terms of the Artistic License, not copyright itself. And, in fact, since Jacobsen gives the software away for free willingly, there's no copyright claim at all.

The court sided with Jacobsen, and Slashdot and Lessig are celebrating this (perhaps accurately) as a huge win for alternative licenses such as the Artistic License and Creative Commons Licenses -- basically allowing them to revert to copyright claims if the terms of the license are violated. For supporters of such licenses, it's certainly a good decision. When I first read the decision, though, I was concerned that it seemed to contradict the recent ruling against Universal Music which stated that simply stamping "not for resale" on a CD doesn't give Universal additional rights above and beyond copyright. That ruling seemed like a good decision, too -- but in some ways it could be seen to conflict with this new decision. Though there may also be a way to read them that suggests the decisions agree.

After all, Creative Commons seems to basically do the same thing that stamping "not for resale" does on CDs: it creates a separate license on top of copyright, and then tries to use copyright's defenses against breaking that license. The court in the Universal Music case seemed to indicate that such claims on top of copyright weren't enforceable. But this Artistic License decision seems to say that some claims on top of copyright can be upheld.

In the Universal case, the court found that the "not for resale" language wasn't enforceable because there was no "exchange" that resulted in the "license" (also known as "consideration" -- which is usually required for US contracts to be binding): "UMG gives the Promo CDs to music industry insiders, never to be returned. ... Nor does the licensing label require the recipient to provide UMG with any benefit to retain possession." The same is true of Jacobsen's software, as well. The software is given, never to be returned, and the license doesn't require the end user to provide Jacobsen with any benefit in return.

Perhaps the only difference is in what the licenses seek to restrict. That is, in the Universal case, the proposed restrictions are greater than what copyright seeks to restrict (i.e., not allowing resale). In the Jacobsen case, the reserved rights are less than what copyright allows (i.e., you are allowed to copy, but under these conditions). So despite the different situations, in either case, the judgments revert to copyright law to establish the issue: i.e., in the Universal case, it's really an extension of copyright law, whereas in the Jacobsen case, it's carving a hole in copyright law. So, if either license is "broken" you just fall back to copyright law: in the UMG case, you revert and realize copyright law isn't broken by reselling. In Jacobsen, you revert and find that copyright law is broken by the use. However, it would be interesting if some copyright scholars could weigh in on this to make sure that these rulings don't contradict.

If this interpretation of the rulings is correct, then this is definitely a big victory for those using licenses that carve out exceptions to copyright law, but still want to hold copyright law over those who abuse the licenses.

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Why Doesn't Girl Talk Allow Commercial Use?

from the go-big-or-go-home dept

Legal trouble for Girl Talk -- an artist named Greg Gillis who released a "mash up" album using the pay what you want model -- is almost inevitable, but the situation gets even more interesting when you consider how the music is licensed. Girl Talk uses a Creative Commons Attribution-Noncommercial license for Feed the Animals, even though the songs on the album were made by using hundreds samples from other artists. Gillis claims his songs are fair use on the basis of being transformative and because the clips used are very short.

Aside from potential legal claims over the license if the fair use defense fails, why would Gillis -- an artist making commercial use of samples from others -- put a noncommercial restriction on his work? It seems a bit hypocritical. Granted, he does claim that "the CC license does not interfere with the rights you have under the fair use doctrine, which gives you permission to make certain uses of the work even for commercial purposes," but is the noncommercial restriction for other uses really necessary?

First of all, as Mike Masnick pointed out in his critique of a noncommercial copyright, the distinction between commercial and noncommercial use is extremely blurry. Equally blurry in this case is the distinction between transformative and non-transformative use. At what point exactly does a derivative work become transformative? But, more importantly, Mike asks "if someone else is able to do something commercially useful with my content, why should that be a problem?" Girl Talk ought to be a perfect example of this, yet Gillis seems to deliberately limit the possibilities through his choice of license.

Why attempt to limit the positive externalities? Maybe some of the artists sampled on the Girl Talk album will really like a song their music appears in and want to include it somehow on a release of their own, make use of it on their website, etc. Should those artists then be required to pay for the use of a song which includes samples of their own music? Maybe, but it seems like respecting "upstream" would help an artist like Gillis maintain a better relationship with the artists from which he's sampling.

Furthermore, what about people who might do something with the album that's potentially commercially useful for Girl Talk? For example, if someone were to make an interesting remix or video using Girl Talk's music , not only would they be required to refrain from commercial use themselves (unless it was fair use), but Gillis would require their permission to make use of it himself. If he had used a copyleft license like the Creative Commons Attibution-Share Alike, both he and any artists making derivative works would have the ability to monetize their efforts. Instead, derivatives are relegated to the realm of the amateur because, with a noncommercial license, the barriers of a permission culture are still intact for artists trying to make a living from their work. One would hope that Greg Gillis, of all artists, might realize the benefits of removing these barriers, especially on commercial use.

Blaise Alleyne is an expert at the Insight Community. To get insight and analysis from Blaise Alleyne and other experts on challenges your company faces, click here.

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Turns Out You Can't Sue Creative Commons Because You Didn't Understand The CC License

from the still-cost-$15k dept

A few months ago we wrote about a somewhat bizarre lawsuit where the family of a teenager sued Creative Commons after a photo of the girl was used in an ad campaign by Virgin Mobile Australia. The details were a bit strange, and it appeared that the family (and its lawyer) were a bit confused themselves, leading them to sue parties that were not responsible at all. What happened was that a youth group counselor had taken a photo of the girl and posted it to Flickr with a Attribution 2.0 license -- meaning that anyone could use it, even for commercial purposes, so long as they gave credit for who took the photo. Virgin Mobile Australia then went and used the photo and others (with attribution) in a poster campaign for its mobile phone service. The girl later discovered all this when someone in Australia spotted the ad campaign with the Flickr URLs on the poster, and thought it was interesting enough to take a photo of the ad and put that up on Flickr. Her family then felt that she was being taken advantage of and found a lawyer who sued Virgin Mobile Australia, Virgin Mobile USA and Creative Commons. It's a stretch to think that even Virgin Mobile Australia has done anything wrong here (it followed the terms of the CC license), but there is simply no rationale for suing Virgin Mobile USA (a totally unrelated company to VMA) or Creative Commons. After all, Creative Commons hadn't done anything here other than exist.

If anything, the family could sue the photographer for posting the girl's photo with a CC license without permission -- but, instead, the family included the photographer as a plaintiff in the lawsuit. So, basically, they were suing CC because the photographer didn't understand the license he had chosen and he felt he deserved some money for his own misunderstanding as well. Thankfully, the family and its lawyer seem to have finally (after the fact) taken the time to realize that Creative Commons and Virgin Mobile USA have nothing to do with this lawsuit and have withdrawn the suit on those two firms (I assume the case against Virgin Mobile Australia will still continue). Unfortunately, however, their inability to figure this out before the lawsuit ended up costing Creative Commons approximately $15,000.

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Creative Commons (And Virgin) Sued For Teen's Photo Being Used In Ad Campaign

from the sue,-sue,-sue dept

Stack writes in to let us know that the family of a teenager in Texas has sued Creative Commons, Virgin Mobile Australia and Virgin Mobile USA because Virgin Mobile Australia happened to use a photo of the girl in an ad campaign in Australia. The photo had been taken by the girl's youth counselor, who posted it on Flickr, with a Creative Commons license saying the photo could be used with attribution (the ad apparently includes the Flickr URL, so it appears to be following the terms). There are some bizarre parts to the story. It's not clear why they're suing Creative Commons, since the photographer (who is apparently suing as well) chose the license in question. If he didn't want to have the photo used, he shouldn't have picked a CC license (or should have picked a more restrictive CC license). It's certainly ridiculous to then blame CC because the guy didn't know what kind of license he was choosing or how it could be used. In fact, the original photo is still using a CC Attribution 2.0 Generic license. You would think before suing the guy would have at least changed the license. It also doesn't make any sense that the family is suing Virgin Mobile USA. It's an entirely separate company from Virgin Mobile Australia. Also, the family says that they're quite upset because people can now "Google" their daughter. Yet, the ad doesn't have her name, and the photo was put online by the youth counselor, so it's not clear how they could be Googling the ad (and, of course, by suing, the family is only drawing a lot more attention to the ad). Finally, the family is complaining that this is defamatory and somehow insulting -- yet it's difficult to see how the ad can be construed as insulting. It's hard to see such a case getting very far -- though, it is interesting to see that Virgin Mobile was using CC Flickr photos in their ad campaign.

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