It seems like we keep hearing people insist that the internet, and things like Twitter and Google, are making us dumber because we're no longer really delving into anything with any depth, but rather just finding and spreading short snippets of text. There's never been any real support for that concept, but leave it to good old xkcd to put it all in perspective with a bunch of historical quotes that show people saying basically the identical things more than a century ago. TL;DR: People have pretty much always insisted that "back in the day, we spent much more time thinking/digesting/experiencing" and that "the kids these days just rush around." Maybe, just possibly, that's not actually true. Perhaps it's just that, as we all get older, time seems to move much faster, and the complaints are really people who are getting older (and, yes, this includes me) recognizing that we can't always keep up.

We've already had a few posts discussing why the whole "if you've done nothing wrong, you've got nothing to hide" argument is bogus, but this weekend's edition of the radio show This American Life had a fantastic short section in which the host, Ira Glass, spoke to lawyers for detainees at Guantanamo Bay, who are all pretty certain that every one of their phone calls is being recorded and listened to. What's amazing is the emotional response you hear from most of these lawyers, who recognize that they can no longer comfortably speak freely to anyone on the phone ever again. The stories of them not being able to be emotional with their children when speaking to them on the phone, or in which their friends accuse them of being especially curt and officious whenever they call are somewhat heartbreaking.

These are the things that many people simply don't recognize about the psychological impact of a surveillance state. When you have no real downtime -- no time when you can be free from prying eyes, it messes with your brain in a really profound way. This short segment (just 8 minutes long) really highlights how much a little thing like the inability to ever speak to someone privately changes your entire way of speaking and communicating. As we seem to be drifting rapidly towards such a surveillance state, these are the issues that we should be thinking about and understanding. There may be certain benefits to being able to do widespread surveillance, but we should not and cannot ignore the costs.

Museums and copyright have historically had a somewhat strained relationship. Overly complicated copyright laws and overly long copyright terms have only made this more problematic, resulting in museum policy oddities like prohibiting photography and sketching, as the Art Institute of Chicago recently did. (Flash photography is prohibited almost universally, but more for preservation of artwork than for copyright reasons.)

In recent years, though, more and more museums are opening up and allowing the public to access their collections remotely. Many have also taken steps to digitize their collections and make these archives available for download. While many have moved in a more realistic direction, few have taken it as far as the Rijksmuseum in Amsterdam.

Many museums post their collections online, but the Rijksmuseum here has taken the unusual step of offering downloads of high-resolution images at no cost, encouraging the public to copy and transform its artworks into stationery, T-shirts, tattoos, plates or even toilet paper.

The staff’s goal is to add 40,000 images a year until the entire collection of one million artworks spanning eight centuries is available, said Taco Dibbits, the director of collections at the Rijksmuseum.

This collection may seem miniscule next to that of the Smithsonian, which has digitized over 14 million items from its collection. But the Smithsonian's images are deliberately low-res, a choice it made to deter commercial use. The Rijksmuseum has no such qualms about its catalog being "exploited," stemming from its very realistic take on the realities of the digital era.

“We’re a public institution, and so the art and objects we have are, in a way, everyone’s property,” Mr. Dibbits said in an interview. “‘With the Internet, it’s so difficult to control your copyright or use of images that we decided we’d rather people use a very good high-resolution image of the ‘Milkmaid’ from the Rijksmuseum rather than using a very bad reproduction,” he said, referring to that Vermeer painting from around 1660.

Not only are the images hi-res, but the museum's archive site, Rijksstudio, provides online image manipulation tools for downloaders to utilize. The site asks that users refrain from commercial use (it sells even higher resolution images for that purpose), but also tacitly acknowledges that people are going to use these works however they see fit.

“If they want to have a Vermeer on their toilet paper, I’d rather have a very high-quality image of Vermeer on toilet paper than a very bad reproduction,” he said.

Even the act of making Vermeer toilet paper is considered part of the Rijksmuseum experience.

Mr. Dibbits of the Rijksmuseum maintains that letting the public take control of the images is crucial to encouraging people to commune with the collection. “The action of actually working with an image, clipping it out and paying attention to the very small details makes you remember it,” he said.

Many have argued that allowing photography (or access to downloadable archives) takes money out museums' pockets. After all, if you've seen the painting via a cell phone, why bother seeing the original? But that argument ignores why people go to museums. It's not because the picture is remarkably different in person than when viewed as a high-res photo. It's the whole experience. At worst, photography displaces a gift shop postcard sale. And anyone receiving a postcard from a museum knows it's no substitute for being there.

The Rijksmuseum has gone a step or two further than most, not only by providing high-res downloads (because if it doesn't, someone else will) but by encouraging interaction with the uploaded works with its set of digital tools. Art isn't static. But some museums continue to pretend it is by offering low-res archives wrapped in restrictive usage limitations. Which approach to museum archives is more likely to inspire creation of new works?

We've written numerous times about Scott Turow during his time as head of the Author's Guild, and the amazing thing to me is that despite the fact he's been getting blistering criticism from a variety of people -- including tons of authors -- he never, ever seems to even acknowledge the points of his critics, but continues to just say the same debunked crap over and over again. Last week, for example, we did a point-by-point debunking of his error-laden, factually inaccurate and totally misleading op-ed in which he argued that pretty much everything on the internet was harming authors. I was gratified to see our debunking picked up widely -- with many of the tweets in support of our response coming from authors (including a few best selling authors). It made me wonder what sort of organization Turow is running.

Best selling author Barry Eisler penned an interesting response to Turow on JA Konrath's blog, in which he pointed out that Turow's position has consistently been in favor of "Legacy Publishing," (i.e., the big five publishers in NY) rather than authors. A similar reply from author David Gaughran pointed out that Turow seems to be so focused on propping up the legacy publishers that he directly called for an antitrust investigation into price-fixing by those publishers to be dropped, regardless of the facts of the case. Yes, even though such price fixing would harm authors, Turow immediately sided with the publishers. Incredible.

But, perhaps more telling is how the Authors Guild has now completely shut itself off from the outside world. Gaughrin also notes that right before Turow's NYT op-ed, he had also published a silly blog post about Amazon buying Goodreads, and got torn apart in the comments for the post. But if you look at the Author's Guild blog post about the NYT's oped, you'll see there are no comments and that "comments for this thread are now closed." Eisler notes that it was not always this way. In fact, he had submitted a comment to the blog post, apparently with a link to my piece, saying:

"That Scott Turow refuses to respond to this demolition of his facts, his knowledge of the law, and even his baseline logic tells you all you need to know about his integrity. And about the true function of the "Authors Guild" of which he is president."

Eisler received notification that his comment was "awaiting moderation," but obviously that comment never ran, and instead, the Authors Guild shut down comments entirely. It appears that not only are they unwilling to respond to the large number of authors who are complaining about how ridiculous Turow's position is, they also want to stick their hands over their eyes and ears to pretend it's not even happening. That's not leadership. That's cowardice.

In the meantime, even the libraries are punching back. The American Library Association responded to Turow, "taking issue" with his op-ed and pointing out how Turow is wrong about libraries and about the law.

The failure to respond speaks volumes. And it says that the Authors Guild does not represent authors at all, but rather the legacy publishers, and a very small number of authors who succeeded under the old system. Turow's actions have done massive damage to the perception and credibility of the Authors Guild. And the Guild's decision to stop hearing from critics, especially authors, is quite telling about how it views the world. It's amazing any modern author thinks it's worthwhile to be a member of such an organization.

Even though they don't figure much in the US legal landscape, moral (non-economic) rights such as the right of attribution are an important aspect of copyright law in many other countries. Intellectual Property Watch has a fascinating account of a case from Argentina, where a judge decided that an individual's moral rights could be overridden by the rights of the community.

The tale is rather complicated, so you'll need to read the original article to follow all the twists and turns, but it concerns the works of Roberto Fontanarrosa, a cartoonist and writer who died in 2007. His widow signed a contract with a publishing house to bring out a posthumous collection of his unpublished short stories, but Fontanarrosa's son by a previous marriage objected on the grounds that his father's moral rights were being harmed:

he argued he was not sure his father was actually the author of the work subject to the publishing agreement and his motivation was to avoid damaging his father's reputation by allowing the print of a work of an unknown author under his name.

The judge was therefore asked to decide whether the publication should go ahead or not.

In the end, the judge in charge of the Court of First Instance, Fabián Bellizia, decided the contract signed between the publisher and the widower was valid, thus authorising the publication of the work. Moreover, he deemed the moral rights argued by the son of the author were abusive. The judge stated that the tension between author's copyright and community interest and explicitly favoured the latter over the former.

As the Intellectual Property Watch post notes, this is perhaps the first time that an Argentine court has limited the exercise of moral rights of an author by taking into account the interest of the community in gaining access to unpublished works. Moreover, the judge arrived at that remarkable decision that in some circumstances moral rights could be "abusive", not by reference to Argentina's Copyright Act, as might be expected, but to international treaties:

the American Convention on Human Rights, also known as the Pact of San José de Costa Rica, Art. 21, subsection 1 (the law can subordinate individual rights to social interests, i.e., the so-called doctrine of the social function of property), and the International Covenant on Economic, Social and Cultural Rights (adopted by the United Nations General Assembly on 16 December 1966), Art. 15, subsection 1 (right of every person to take part in the cultural life).

That judgement is not yet definitive, since the Argentinian Appellate Court now needs to consider the case. But it would set a remarkable precedent for considering the impact of copyright in a wider social contract, and weighing the rights of the creator against those of the community:

It seems this decision is a reaction against the perceived misbalance between incentive and access trade-off in contemporary copyright law. In any case, the ruling opens the door to many challenging interpretations. If the rights of the heir, as successor of the author, can be deemed abusive in a court of law, could the moral rights of a living author be considered abusive as well?

Now there's a thought.

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A year and a half ago, two documentary filmmakers, Dave Kellett & Fred Schroeder, used Kickstarter to raise $109,025 for their film, Stripped, all about the comics industry -- covering both old time newspaper comic artists and the new generation of web comic artists (and the ongoing transition between the past and the future). Some were a bit surprised that the two popped back up on Kickstarter recently seeking to raise (at least) another $33,560, despite the original campaign and the fact that they say the movie is done:

So here's the great news: The movie is essentially *done*. It's filmed, edited, scored, and test-screened. Even the final sound mix, color correction, and closed captioning have already been budgeted for, thanks to the support of comics creators and fans.

In fact, the film looks really quite awesome. The bits with the "old guard," bitching about how, without newspapers, they can't make money, juxtaposed with the new guard (including the awesome quote: "get with the times, old man!") talking about how much opportunity there is, really fit well with the sort of business model discussions we have around here all the time. So, if the film is all ready, why go back to the well? Copyright law, apparently. They note that many of the artists and copyright holders were extremely cool and signed off on using their works and clips and whatnot for free. But not all:

We're using over 500 separate, copyrighted works in the film (400+ images, dozens of new and existing songs, and dozens of historical clips from TV, film, and newsreels). In all cases, we're seeking the global right to use footage/music/images in the documentary, in perpetuity, in all current and future mediums the film might show in. In 98% of these cases, the copyright holders have been amazingly generous, and given permission without fees, and with huge kindness.

But, then there's the 2% who are playing Scrooge, and saying "pay me, pay me, pay me." Total bill? $51,805 to get all the clips they want. They set a lower $33,560 tier to get what they consider the "essential" clips into the film, but are hoping for all of the clips to be licensed. They even made a handy dandy chart showing exactly how much everyone wanted: But, what about fair use? Well, a few years back, I wrote about a panel discussion I attended with some documentary filmmakers, entirely about fair use, in which they more or less said that you can rely on fair use if you want, but you're basically screwed if you do, because no partners will touch the film. You can't get E&O (errors & omissions) insurance without a crazy long list of every single clip and the details of it being licensed, and without E&O insurance, no one will distribute or show the film. Basically, fair use is useless for documentary filmmakers in many cases. Yes, folks like the Center for Social Media at American University have put together a Documentary Filmmakers Statement of Best Practices in Fair Use, hoping that this will calm the fears of insurance providers and third parties, so long as the filmmakers stick to the listed "best practices," but it's still a scary world out there.

In this case, the filmmakers go through a lengthy and detailed explanation for why they don't want to rely on fair use, and most of it details the basic chilling effects we're used to: you can't be sure until a court decides, a trial is lengthy and expensive (and a distraction from everything else), if they lose, the expense from statutory damages will be massive, etc. You can read the whole statement, but here's an abbreviated version, highlighting the key points that specifically have to do with copyright and fair use:

Ultimately, it comes down to three reasons: Potential lawsuits, how those potential lawsuits limit who sees the film, and cost.... We're hoping to distribute this film globally, not just in the U.S. So even if U.S. Fair Use would allow usage in the States, we'd still need to get clearance from the copyright holders elsewhere, country by country, in places where the Fair Use/Fair Lending laws differ.... we'd need to de-encrypt it from a DVD…which is illegal under the DMCA....

There are Fair Use lawsuits still working their way through the courts, having started in 2006. So at some point you have to ask yourself: Do you want to live in court? In the chance we end up being legally in the wrong about a claim of "Fair Usage" for this or that bit of footage, the statutory damages on copyright infringement could be pretty devastating to a little indie film like this. Even the legal fees to defend one court case (from among 500 separate pieces of copyrighted work, remember) could be a huge financial hit.

Even if we were absolutely sure of our Fair Use rights, absolutely sure of our ability to win in court, and absolutely sure that we'd be willing to devote a few years and tens of thousands toward defending that in court…we'd still have to get other stake-holders to accept that same liability. Distributors, networks, broadcasters, "Errors & Omissions Insurance" underwriters -- they'd all need to be willing to take on that same risk that our Fair Use was legally sound. That could be a deal-killer: You could end up with a completed film that wouldn't be shown or broadcast anywhere.

But the biggest one, for us, is... [we] want to be artists, not litigants. We want to make a film that celebrates the art of cartooning, not fight off a Fair Use lawsuit in court.

That said, they do name two other, non-copyright (directly) reasons for this, with the key one being that they want to ask for permission out of respect for the artists. That's a perfectly legitimate argument, but given that so many others donated the license for free, it still seems a little bit ridiculous for others to hold out, even if it is their legal right (fair use, notwithstanding). The other issue is that some of the works just aren't available or aren't available in high definition, without going to someone's private collection. And, obviously, they're not going to share that content without granting permission. That's a bit more understandable, but in the end, fair use is supposed to be about making these kinds of works available, and it's shame that, instead, it's just about taking money away from the artists who created this awesome looking film, and handing it over to (mostly) giant corporations, even though the film is mostly celebrating and promoting those other works.

We've been reasonably concerned about the growing fragmentation of online video, especially as Netflix is trying to directly take on HBO, Showtime and others, while still offering them an online outlet for their content. There's been plenty of buzz about Netflix's new series, House of Cards, starring Kevin Spacey and directed by David Fincher. Most people are talking about how Netflix spent a supposed $100 million on the series, and how it's trying to be for Netflix what The Sopranos was for HBO. However, what's probably more interesting is the fact that Netflix is releasing the entire first season -- all 13 episodes -- at once today. It's something of a recognition of how many people view TV series today.

Netflix, of course, understands this quite well, as its streaming service has become quite popular with people as a way to "catch up" on the hot TV shows from last year that people missed when they were first aired. A growing number of people really really like just being able to "binge" on a TV show and watch them all over a short period of time. However, some purists worry that releasing all of the episodes at once takes away from some of the suspense and enjoyment. At the very least, it limits the "watercooler" moments the day after something airs, but with so many people just recording stuff and watching it later, that social moment was under attack already anyway.

It will be interesting to see how well the show does, and how people react to all 13 episodes being available at once. Perhaps my brain is still stuck in the "old way" of television, but this strikes me as quite different than something like movie windows, which feel really stupid. A "series" that dribbles out content once a week (but lets anyone catch up with full episodes later), seems perfectly reasonable. I almost wonder if releasing all the episodes at once takes away from long term buzz for the show as a story arc grows across a season. Also, it may make for a different kind of commitment from viewers. People who might jump in knowing that they're really only committing an hour, may be more fearful about recognizing they may be about to get sucked in to something much longer.

Copyright is sometimes described as a bargain between two parties: creators and their public. In return for receiving a government-backed monopoly on making copies, creators promise to place their works in the public domain at the end of the copyright term. The problem with that narrative is that time and again, the public is cheated out of what it is due.

For example, copyright terms can be extended retrospectively, which means that material will be locked up for longer than originally promised in the "deal". Or there can be a privatization of public domain materials, using contracts, as reported here by Communia:

Last week the Bibliothèque nationale de France (BnF) concluded two new agreements with private companies to digitize over 70.000 old books, 200.000 sound recordings and other documents belonging (either partially or as a whole) to the public domain. While these public private partnerships enable the digitization of these works they also contain 10-year exclusive agreements allowing the private companies carrying out the digitization to commercialize the digitized documents. During this period only a limited number of these works may be offered online by the BnF.

Communia points out:

The value of the public domain lies in the free dissemination of knowledge and the ability for everyone to access and create new works based on previous works. Yet, instead of taking advantage of the opportunities offered by digitization, the exclusivity of these agreements will force public bodies, such as research institutions or university libraries, to purchase digital content that belongs to the common cultural heritage.

As such, these partnerships constitute a commodification of the public domain by contractual means.

These kind of initiatives are typically justified on the grounds that there's no other way to digitize books and recordings. But that's clearly not true: money could be taken from other projects to pay for such work. It's really a question of priorities. These "public-private" partnerships come about because institutions like the Bibliothèque nationale de France have given up fighting for the public domain, despite being its guardians, and have acquiesced in its privatization.

It's a sad sign of the extent to which once-great libraries and galleries have been assimilated by the copyright industry and its culture of owning rather than sharing that they can't see why their complicity in this kind of enclosure of the knowledge commons is a deep betrayal of their origins and primary mission.

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Although China is often glibly dismissed as little more than an imitator of others, yet another story about copying paradoxically shows it leading the way. That's because what's being cloned is an entire building complex that's still under construction:

The project being pirated is the Wangjing SOHO, a complex of three towers that resemble curved sails, sculpted in stone and etched with wave-like aluminum bands, that appear to swim across the surface of the Earth when viewed from the air.

Zhang Xin, the billionaire property developer who heads SOHO China and commissioned [the famous architect Zaha] Hadid to design the complex, lashed out against the pirates during the Galaxy opening: "Even as we build one of Zaha's projects, it is being replicated in Chongqing," a megacity near the eastern edge of the Tibetan plateau. At this point in time, she added, the pirates of Chongqing are building faster than SOHO. The original is set for completion in 2014.

As the article in Der Spiegel quoted above notes, this isn't the first time that buildings have been copied by Chinese architects:

Last year, citizens of the Austrian hillside hamlet of Hallstatt were shocked when they inadvertently discovered Chinese architects had surreptitiously and extensively photographed their homes and were building a doppelgänger version of the UNESCO World Heritage site in southern China.

But here, as with the latest case, it's hard to see what the problem is. Nobody is mistaking these pirated versions for the originals: the use of photographs in the case of Hallstatt, and "digital files or renderings" in the case of the Wangjing SOHO, means that the results will only be approximate copies, lacking many key details that make the originals artistically notable. If anything, their existence will encourage visitors to seek out the real thing to find out what inspired this massive effort. After all, if somebody goes to the trouble of constructing copies of entire buildings in this way, they must think pretty highly of the original.

What's significant here is that this building piracy can be seen as part of a new trend -- the rise of a high-speed cut-and-paste approach to urban design based around architectural mashups:

Dutch architect Rem Koolhaas, who designed Beijing's surreal, next-generation CCTV tower, has stated the super-speed expansion of Chinese cities is producing architects who use laptops to quickly cut and paste buildings into existence. Koolhaas, in the book "Mutations," calls these architects Photoshop designers: "Photoshop allows us to make collages of photographs -- (and) this is the essence of (China's) architectural and urban production…. Design today becomes as easy as Photoshop, even on the scale of a city."

Fortunately, the architect of the cloned Wangjing SOHO seems to agree:

Zaha Hadid said she has a philosophical stance on the replication of her designs: If future generations of these cloned buildings display innovative mutations, "that could be quite exciting."

Not only that: these pirate mutations will boost her already-considerable reputation in China yet further, and enrich her artistic legacy.

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As you may or may not know, Warner Chappell has claimed that the "most famous song in the world," Happy Birthday To You, is covered by a copyright held by itself (which it purchased years back). The song generates a ridiculous amount of money per year (estimates say around $2 million) in licensing fees. Back in 2008, we pointed to a detailed academic paper that argues persuasively that the song is not subject to copyright, and should be in the public domain. A few years later, even more evidence was added, showing that the song is firmly in the public domain (and probably has been for over a century). The problem, of course, is that no one is willing to go up against a giant company like Warner to challenge the copyright.

So, perhaps there's another solution? The folks at the Free Music Archive and WFMU are teaming up to host a "New Happy Birthday Song" contest, asking people to write their own song which they hope to use to replace the more controversial one. They've got a fantastic slate of judges including Jonathan Coulton, Ira Kaplan (from Yo La Tengo) and Larry Lessig among others. Also, they've put together this fun video of TV shows and movies trying to sing alternate songs to avoid being handed a bill: Of course, if I had one complaint about the contest, it's the choice of licenses they're requiring for entries. They've picked Attribution 2.0 Unported (CC BY 3.0), which is a good and very permissive license -- but I could see how even the attribution part becomes awkward here in some cases. If ever there were a case to support CC 0 licenses this seems like a good one. Yes, I could see how the "attribution" requirement might help make the concept slightly more viral, but I'm not sure if that's enough of a benefit here.

Also, of course, this is definitely a cultural longshot. Convincing the world to switch Happy Birthday songs is, perhaps, the ultimate in quixotic goals. But that doesn't mean that it isn't worth a shot. So, if you ever wanted a chance to create a song that might, possibly replace the most popular song on the planet, now's your chance.