By now you've probably caught a link or two to the New York Times' layout-obliterating mini-game embedded in an article about so-called "stupid games". The article itself is an interesting (if slightly long-winded) history and mild (if slightly self-indulgent) condemnation of the "dark side" of hyperaddictive games from Tetris to Angry Birds, and while I don't agree with much of the message, I'm glad to see it's garnering quite a bit of attention for this clever idea to illustrate the point by including a distracting game right there on the page.

The Nieman Journalism Lab got some details on how the game was created, including the fact that it's a fairly simple adaptation of another open source game. Jon Huang, the man behind the NYT version, sounds like a guy who really understands and embraces the potential of open sharing:

“I give all the credit to the guys behind Kick Ass. They’re a really excited pair of 18-year-old twins in Sweden,” Huang told me Wednesday. “I love that’s how the Internet works these days.”

Kick Ass is the open source game that made the Times’ interactive possible. It’s essentially a bookmarklet that allows you to wreak havoc on any given site you find yourself on. It was a perfect fit for the the theme of Sam Anderson’s Sunday magazine story, which examines the rise of games like Angry Birds, Plants vs. Zombies, and others that inhibit a world very different from what we might traditionally think of as regular video games.

They also rightly praise Huang and the NYT for their creative use of technology and multimedia to enhance journalism—though, it seems worth pointing out that the more the game enhances the message of the article, the more it paradoxically weakens it as well: by using a completely pointless but addictive game found on github to improve a story, they've proven that such toys can have uses beyond what is immediately apparent.

Last year, Sony changed its terms of service for accessing the PlayStation Network. Like many other companies, part of the changed terms was a requirement to take disputes to arbitration, rather than court. These clauses are pretty popular for some obvious reasons: the companies almost always win (perhaps because the arbitrator wants to get hired in the future, and implicitly recognizes the big company is likely to call him again -- not the random individual who has a dispute with the big company). On top of that, it's a lot cheaper than litigation. That part is a good thing, but arbitration hearings seem to be so one-sided that they're often not worth it.

Some folks were not at all happy about this and sought to file a class action lawsuit against Sony for the change -- but that lawsuit has been (pretty quickly) rejected by the court, suggesting that the main guy suing failed to show evidence of any harm. In an interesting move, the court found that the fact that you lost access to the network if you didn't agree to the new terms isn't evidence of any harm, but rather a choice. Of course, that seems a bit extreme. It opens up possibilities for companies to more or less corner users into unpleasant situations. Just change the terms and anyone can be excluded.

I'm not a fan of mandatory arbitration clauses or class action lawsuits like this where "harm" is pretty tough to show. In the end, though, it does seem like Sony should be able to choose and change its terms of service. The real issue is that it chose consumer-unfriendly options, and in a better world, less draconian alternatives would spring up to help treat consumers right. It's hard to side with Sony here (or in most situations), but the lawsuit itself does seem like a stretch.

If you're a billionaire, what better way to spend your pocket change than to explore the deepest parts of the ocean? Deep sea diving is almost like being an astronaut, but you're more likely to find strange new lifeforms that no one has ever seen before. And so far, more people have been to the moon than to the bottom of the Mariana Trench. But that bit of trivia will likely change in the next few years.

• James Cameron has been down to the bottom of the Mariana Trench and back -- filming a documentary for National Geographic. Are privately funded scientific efforts going to be a trend (like 3D movies)? [url]
• Sir Richard Branson has created Virgin Oceanic to explore the Earth's oceans. And it's not an April Fools joke like Virgin Volcanic. [url]
• Jeff Bezos has a privately funded team of deep-sea explorers, and they found discarded Apollo 11 rocket engines at the bottom of the Atlantic Ocean. Bezos plans to bring at least one of these NASA artifacts of space exploration back to dry land. [url]
• To discover more interesting tech-related content, check out what's currently floating around the StumbleUpon universe. [url]  

By the way, StumbleUpon can recommend some good Techdirt articles, too.

Over the years, one topic that seems to engender extremely passionate responses around here is the question of cable TV bundling. People hate bundled cable TV packages -- usually because they hate paying for a bunch of channels they don't want just to get the four channels they do want. I still tend to think this complaint is overstated -- if the cable guys priced things out a la carte, the pricing would basically come to the same thing anyway (the channels you do want would be super expensive, and the ones you don't would be pretty cheap or free with other channels). Either way, the complaint also seems increasingly antiquated in an internet world. More and more TV shows are moving to the web anyway (through both authorized and unauthorized means). While it's certainly not perfect yet, you can create your own a la carte solution for many TV shows/channels.

Still, some folks sued over this bundling, claiming that it was anti-competitive. However, as Eric Goldman alerts us, an appeals court has upheld a lower court decision and outright rejected the idea that bundling is an antitrust issue. The court points out that "tying" arrangements are only illegal if they lead to clear anticompetitive behavior and consumer harm, but that's missing here:

The complaint does not allege that Programmers’ practice of selling “must-have” and low-demand channels in packages excludes other sellers of low-demand channels from the market, or that this practice raises barriers to entry into the programming market. Nor do the plaintiffs allege that the tying arrangement here causes consumers to forego the purchase of substitutes for the tied product.... Nothing in the complaint indicates that the arrangement between the Programmers and Distributors forces Distributors or consumers to forego the purchase of alternative low-demand channels.

The court notes that the only real complaint is that the contract between the parties limits what kinds of offerings can be made by the cable companies, but the court notes that third parties suing over others' contracts that limit some actions "is not sufficient to allege an injury to competition."

I think it's pretty silly that cable companies haven't innovated to the point that a la carte offerings are regularly available. I recognize that the issue here is more about programmers requiring the bundles to get the "must have" channels, so the cable providers are a bit hamstrung, but sooner or later the cable companies need to convince the programmers that lumping stuff together just pisses off consumers, and they might as well offer up an a la carte solution instead.

We're so inured to hearing about unjustified claims of copyright infringement going unpunished that's it's good to come across a case where extensive damages were awarded for the harm caused. It concerns a film that the Australian artist Richard Bell made in New York, with the help of an assistant called Tanya Steele:

Between June 2009 and September 2011, while on a fellowship in New York, Mr Bell produced and directed approximately 18 hours of raw footage for a film “The Blackfella’s Guide to New York”. He engaged Ms Steele to help him make the film, and paid her for these services. Mr Bell made a trailer from the raw footage, which his agent posted on the Vimeo website.

Then things started to turn unpleasant:

Ms Steele, through her American lawyers, sent letters to Mr Bell and his agent claiming that she owned the copyright in the footage and demanding that the trailer be removed from the Internet. She also caused the Vimeo website to remove the trailer.

According to the official court proceedings, "threats of legal action were made in a calculated fashion by the respondent [Steele] through her New York law form [sic]" to both Bell and his agent. As a result of those threats:

Mr Bell’s agent did not display the footage on the Internet, postponed a showing of Mr Bell’s artworks, and delayed the sale of a catalogue of Mr Bell’s artworks that included a still from the trailer.

In response, Bell went to the (Australian) courts, which declared him the owner of the copyright in the film, and deemed Steele's threats "unjustifiable". Bell then asked for damages. These were granted in the latest judgment because Bell had lost the opportunity to sell some of his works, which typically cost tens of thousands of dollars, as a result of Steels' threats. The Australian judge awarded over $150,000 in damages plus another $23,000 costs against her.

As the article quoted above points out:

The decision sets an important precedent. As far as we are aware, this is the first time damages have been awarded where a third party had content removed from the Internet without legal justification. In light of this decision, if a person falsely tells a file-sharing or social media website that they own copyright in an image or movie to have it taken down, and in fact that is not the case, it could be actionable as an unjustifiable threat.

That's obviously good news in terms of deterring future unjustified claims of copyright infringment, at least in the Australian jurisdiction. But there are a couple of curious features about this case that are worth noting.

One is that Tanya Steele not only didn't turn up for the court case in Australia -- perhaps understandable, given the distance of Brisbane from New York -- but didn't even file a submission explaining her actions, so we don't really know her side of the story.

The second is that the article says: "The trailer for the video is now on YouTube". What's odd is that following that link brings up an ominous black screen with the following message:

This video is no longer available due to a copyright claim by Tanya Steele.

The original problem was over a posting of the trailer to Vimeo (and to the agent's Web site), not YouTube, which is nowhere mentioned in any of the documents, so this seems to be a new takedown. Maybe the case isn't over yet...

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Boo! You didn't see me there, did you? That's because I'm one insidious sonofabitch. My name's piracy, and I'm everywhere. I will do things like disguise myself as a photocopier and infiltrate your business via identity theft. Or, umm, something. Here, I'll let this dramatic PSA from Microsoft fail to explain it to you:

Understand? No? Good! We want you confused and bewildered! If you're not careful, I will steal your external hard drives and stalk your attractive female employees. I even contribute to littering. And I do it all to the ominous notes of pizzicato strings, like Elmer Fudd hunting wabbits. Learn more at Microsoft's anti-piracy website, which is so poorly designed as to look like a knockoff itself—that is, if I don't run off with your computer first. Muahahaha! Piracy!

We just wrote about Hadopi's back slapping report about how much it had reduced "piracy." We noted that what was really telling was the fact that revenue was still declining. However, as more people look at the details of the Hadopi report, even the numbers they provide are looking less and less credible. Monica Horten from IPtegrity looks at a few different sources that raise serious questions about the Hadopi report. What the analysis shows is that P2P file sharing is still increasing in France. The "decline" is not in absolute numbers, but in relative numbers, compared to other sources -- such as streaming. And streaming has gone up quite a bit. An analysis in the French publication Le Figaro highlights how P2P and streaming appear to have basically flip flopped:
On top of that, France Telecom, who has said that P2P use continues to grow, has also noted that it saw "a marked increase in levels of encrypted traffic since the Hadopi notice-sending began," suggesting that there's plenty of file sharing going on via encrypted channels that Hadopi simply can't track.

Furthermore, Horten points to a Numerama report that highlights the fact that Hadopi's numbers come from the IFPI and ALPA. ALPA is a French anti-piracy organization. In other words, organizations who have a long history of fudging their own numbers. You would think, if the data was really showed that Hadopi was having an impact, its numbers would be a lot stronger.

Thanks to tremendous pressure from the US entertainment industry and the US government, Spain passed the Sinde law, putting in place a Spanish version of SOPA that creates a blacklist of naughty sites to be burned at the stake... or, failing that, have access blocked by ISPs. The Sinde law has been in effect for a month, and Spain's Ministry of Culture has admitted to receiving over 300 complaints calling for the death of 79 sites. The copyright commission is investigating the allegations and has not yet shut down any sites. Either way, this gives you a sense of the entitlement feeling of many in the industry. Given the chance (and the original SOPA gave them the chance), they will claim all sorts of horrible things about very useful services -- and then order them shut down. We know, for a fact, that takedown systems like the DMCA get regularly abused. Expanding such powers by allowing for the complete closure of sites is something that will be widely abused too. Complaints targeting so many sites upfront certainly suggests that the law itself is quite problematic.

Make no mistake about it. This new law is a censorship law, that allows private parties to make claims that could lead to competitors being knocked offline. The Spanish public was against it, as were many politicians. But the supporters of the bill finally got it through, and the fallout is a big bureaucracy and lots of accusations flying -- accusations that may never be dealt with in a real trial. Letting private companies effectively run a system for censorship, and seeing it being used in action, should worry most people. Unfortunately, "most people" seems to exclude the big copyright industry players and the politicians they love.

A little over two years ago, we wrote about what we considered to be an absolutely insane lawsuit from Louis Vuitton, arguing that a mock basketball, which appeared in a Hyundai commercial for one second violated LV's trademark. You can see the commercial below:
If you missed it (entirely possible), at the 3 second mark, this image flashes briefly:


The point of the commercial is to get people to imagine what life would be like if "luxury" items were everyday items, and thus the mock basketball with symbols designed to suggest a luxury bag, like a Louis Vuitton bag. As we (and many, many trademark experts) suggested when the lawsuit was filed, the claims here are simply crazy. There is simply no harm whatsoever done to Louis Vuitton by this ad. Most people wouldn't even notice the markings and if they did, what possible "harm" would it do? The answer is none. There is no consumer confusion whatsoever. There are no LV basketballs that won't be sold because of this (in fact, the judge in this case notes that, after seeing this commercial, some people wanted one -- which would suggest a market opportunity, rather than litigation).

Of course, Louis Vuitton's complaint didn't rest on the bedrock of trademark law -- the likelihood of confusion -- but a more modern bastardization of trademark law called "dilution." The concept of dilution in trademark law is an affront to the purpose of trademark law, which is supposed to be about protecting consumers from confusion. That is, it's supposed to be about preventing someone from buying Bob's Cola, thinking that it's really Coca-Cola. But there's no such risk here. Dilution, however, flips the very concept of trademark law on its head and pretends (falsely) that trademark law is about protecting a company's trademarks from anyone doing anything at all with it that the company doesn't like.

Unfortunately, the courts don't always get things right -- which is why we get such ridiculous lawsuits in the first place -- and here, amazingly, the district court has sided with Louis Vuitton in its dilution argument, granting summary judgment on Hyundia's liability for dilution, while it rejected Hyundai's movement for summary judgment rejecting all of Louis Vuitton's claims. This is, in many ways, horrifying.

Eric Goldman's summary, linked above, highlights the many problems with the ruling -- while cautioning that the details suggest this type of ruling is limited. Still, as he notes:

And then we have an opinion like this--where the court finds trademark dilution without finding infringement (not resolved yet) and in a situation where EVERYONE can immediately tell there was zero harm to the brand owner. Rulings like this make trademark academics shudder in fear that trademark dilution will swallow up all of trademark law and confer rights-in-gross to trademark owners. While I don't share those fears for reasons I'll explain in a bit, unquestionably this is a bad ruling.

Goldman goes on to highlight some of the more specific problems with the ruling, but the key point is simply that there is no harm here. None. Absolutely none. Perhaps less than none, given the reports of interest in LV basketballs. When the law doesn't care about that, then the law is, unquestionably, broken. A ruling like this automatically lessens respect for trademark law, because it makes no sense at all. It makes a mockery of the judicial system by suggesting that lawsuits like this have any merit whatsoever.

We noted right after the US government shut down Megaupload, that it was creating massive chilling effects on all sorts of online cloud businesses -- leading some to already turn off useful services that consumers and businesses relied on.

It appears that process is continuing. Last week, Paramount's VP of "Content Protection," Alfred Perry, made a ridiculous and childish presentation in which he effectively put criminal targets on the backs of five companies, and suggested that they were all no different than Megaupload, and that the government was coming for them next: I find it amusing, by the way, that they've dropped RapidShare from the list. The company, which does offer the same basic services and gets a ton of traffic, has actually been one of the only cyberlockers who has hit back against Hollywood where it counts: with Washington DC lobbyists. RapidShare, of course, has also been found legal by multiple courts, because it follows the basic precepts of the DMCA and takes down infringing content when it discovers it. But the thing is, many (if not most) of the other sites on this list do the same thing.

The end result, however, is that the five sites on the list have been forced to go on the defensive hoping to avoid criminal prosecution with the federal government twisting everything they do to present it in the worst possible light.

MediaFire fired back at Perry, pointing out that the company is a large legitimate company run by reputable entrepreneurs, and one that has always worked with the MPAA and RIAA to stop the spread of infringing content. Similarly, PutLocker has fired back, telling TorrentFreak that Perry's comments were defamatory:

In any other industry, a person making this type of statement could be sued for libel. Funny how that works,” PutLocker Operations Officer Adrian Petroff told TorrentFreak.

“PutLocker takes a strong stand against copyright infringement and in the past year and a half we have taken down hundreds of thousands of infringing files and blocked the accounts of hundreds of repeat offenders,” adds Petroff. “PutLocker always cooperates with copyright holders and law enforcement agencies at home and abroad to uphold the rights of content producers and distributors alike.”

But the chilling effects here are very, very real. Two of the other five sites on the target list have now effectively made themselves useless for sharing legitimate files worldwide -- one of the key use cases for cyberlockers. FileServe and Wupload have turned themselves into pure backup services, rather than file sharing services, to avoid the risk of criminal prosecution.
Now, critics of these sites will rejoice in these two sites shutting down a useful feature. They'll insist that this proves either that they're "winning" the battle, or that these sites are somehow admitting that they were facilitating infringement. But that's a dangerous misreading of the situation. Were these sites used to infringe? Absolutely. But so was the VCR. So was radio. So were photocopying machines. So were DVRs. So were computers. The fact is that innovation leads to breaking down the old rules by enabling something new and useful.

And that's the real key here. Perry and the rest of the Hollywood legacy "content protection" crew freak out about 41 billion page views. What they ignore is that the reason there were 41 billion page views was because these sites were offering something useful that people wanted. But Perry isn't in the business of recognizing what the market wants. His very job title makes it clear that his job is holding back the tide. It's about "content protection" in a world where content can't be protected. If Paramount were run by execs who actually had vision and understood innovation, they'd see 41 billion pageviews and their eyes would light up at the massive opportunity. Just imagine what you could do with 41 billion pageviews? And, if you were a company like Paramount and could offer your content up legally, you'd have a huge head start over the cyberlockers. If anything is criminal here, it's the incredible shortsightedness of Paramount's execs, to spit in the face of consumers and a massive business opportunity for themselves.

Even worse, they're doing so by simply declaring innovative websites guilty of criminal charges, despite no actual charges being filed, no trial, no evidence and no chance for these companies to make their case. From a legal standpoint, this is despicable. It's standard operating procedures for a flailing, out of touch, anti-visionary company, however. It's just too bad that the world is letting a company like Paramount (and its parent company, Viacom) get away with such practices.

While the Freakonomics guys have shown a willingness in the past to be skeptical about the traditional claims concerning copyright, they often seem to have a blindness to similar criticisms of patents. In fact, in the Freakonomics book sequel Superfreakonomics, there's what's basically a puff piece about massive patent troll Intellectual Ventures. Thus it's disappointing, but not surprising, to hear that one of the Freakonomics duo, Stephen Dubner, is talking up some claims about how "closing the patent gap" between the number of patents that men get and women get (by basically convincing more women to patent stuff) could increase our GDP by a staggering 2.7%.

That's a huge leap, and a rather astounding claim. And you would think that these guys, who are so focused on trying to sniff out interesting points from data, wouldn't leap so blindly past a whole variety of questionable assumptions, including the big one: the assumption that there's a causal relationship between more patents and economic growth. Similarly, Dubner, in his radio piece, goes so far as to claim that patents are a reasonable proxy for innovation -- directly asserting that the fact that fewer women get patents means that women have "the most room for improvement in the innovation field."

To put it simply, that's ridiculous. Just because people aren't getting patents, it doesn't mean that they're not being innovative. In fact, multiple studies have shown absolutely no link between patents and innovation. It's a shame that Dubner would take the easy way out and leap to the false conclusion that patents are a reasonable proxy for innovation -- and, even worse, that he would then encourage an increasing rate of patenting, when one of the biggest problems facing the innovation sector today is over-patenting.

To be fair, Dubner is basing his report on some new research into the "patent gap" between men and women, which makes these particular claims (including the GDP growth claim). There is some interesting data in the paper showing just how few patents are given to women, but there are a bunch of questionable assumptions and logic leaps as well. Others have been pointing out some of the problems with the report, including new data showing that, based on the trendline, women are already increasing the rate at which they get patents very quickly. The bigger problem, though, is just the facile (and simply unsupportable) claim that more patents automatically leads to greater GDP. As economist Alex Tabarrok notes sarcastically in response:

Right; and since only 10% of construction workers are women, closing the gender gap would result in many more houses

This is a first year stats student type error, assuming this kind of causal relationship where none exists. The authors of the paper should have known better, but Dubner and the Freakonomics crew, who give this kind of work a stamp of approval, should be even more careful. Disappointing.

One of our key concerns with the so-called "voluntary" six strikes agreement set up between the ISPs and the content companies (with a major shove from the White House) was the fact that there was no one representing the users at the table. As much as the White House has insisted that the entertainment industry alone represents "all the stakeholders," the simple fact is that copyright law is supposed to benefit the public, not the legacy industry gatekeepers.

And while it may have been the way things were done around copyright in the past, the public's reaction to SOPA should have changed that equation. No longer should decisions around copyright law that effect the public internet users be made without their input. And, yet, that's exactly what happened with the six strikes agreement. Even if the new Center for Copyright Infringement (CCI), which has been set up to run the new six strikes program, has appointed some consumer rights advocates to its powerless "advisory" board, shouldn't we go back to the drawing board and have a true, open discussion about these things that includes the users of the internet? After all, aren't they the true stakeholders here?

The folks over at the EFF are calling for a complete "reset" on the agreement, and saying that it's time to do it correctly: with internet users at the table, rather than kept out of the room. The statement notes that the advisory board is not the same as including internet users in the process:

An advisory board is just that: a group of advisors, not decisionmakers. No matter how you slice it, subscribers don't have a seat at the table now any more than they did in the earlier negotiations.

Instead, they point out that the only way this is going to be done in a way that's fair and that actually serves the true purpose of copyright law is to start again, and have the discussion done in public where the public has a true say in what happens:

So here's an idea: press reset. This collaboration has been years in the making, with the ISPs under heavy pressure from the content industries and government officials. It may be that they made the best deal they could under the circumstances, but since then the world has changed. If the ISPs decided to take this back to drawing board, we think their customers will stand with them, loudly and publicly -- but only if they also insist that their customers have voice in the process.

Indeed. This may have seemed like a crazy idea pre-SOPA blackout, but since then, the public is aware and energized on this issue -- and they want to participate in the conversation. The number one point we've heard over and over again since the January 18th blackouts is about how the public can get involved in a positive agenda around copyright. Here's a key opportunity. The big ISPs who signed on to this six strikes deal should call for a brand new discussion, one that is not done in a backroom, but is done in public, where the public can take part.

There's an interesting article over at Law.com highlighting just how many lawsuits there are in which college professors and librarians are fighting back against overly draconian copyright laws. Most of the cases they mention are ones we've discussed here, but it's a good article overall. It talks about the Georgia State fair use case, the UCLA case about streaming video, and the Authors Guild suit against the Hathitrust for trying to make books more accessible.

The really incredible thing in all of this is that copyright is supposed to be about the encouragement of learning. In fact, the first US federal copyright law was called "An Act for the Encouragement of Learning." But, the fact is that universities and librarians are constantly bumping up against the ridiculous and over-aggressive limits of copyright law in ways that prevent them from basic tasks that aid in education and learning.

Copyright system defenders love to paint critics of today's copyright laws as merely being a bunch of "freeloaders" and "pirates." That's a ridiculous assertion. The big problem of copyright law today is how it impacts everyday people doing everyday things. The fact that so many professors and librarians -- those who are at the forefront of the "encouragement of learning" -- are discovering that copyright law gets in their way more than it helps suggests a law that is completely out of touch with its intended purpose. This isn't about freeloaders and pirates. This is about some of the fundamental principles of education.

While we're still sorting through the crazy cybersecurity bill proposals in the US, it appears that some in the EU are going through a similar process. The EU Parliament's "Civil Liberties Committee" has approved a legislative proposal concerning "cyber attacks," which appears to ramp up criminal penalties for all sorts of broadly defined activities. It even applies criminal penalties to a company if an employee hacks into a competitor's database (even if they weren't told to do it). But where it gets scary is when it appears to directly target "hactivism" like what Anonymous does. While we still think Anonymous' DDoS attacks are incredibly counterproductive, are they really criminal?

The Committee's proposals would make it a criminal offence to conduct cyber attacks on computer systems. Individuals would face at least two years in jail if served with the maximum penalty for the offence.

A maximum penalty of at least five years in jail could apply if "aggravating circumstances" or "considerable damage ... financial costs or loss of financial data" occurred, the Parliament said in a statement.

One aggravating circumstance in which the heavier penalty could be levied is if an individual uses 'botnet' tools "specifically designed for large-scale attacks". Considerable damage may be said to have occurred through the disruption of system services, according to plans disclosed by the Parliament.

Even more ridiculous? Merely "possessing... hacking software and tools" could lead to criminal charges. Does that make everyone with a computer a criminal? This whole thing seems like a bad overreaction by politicians who are freaked out, but who clearly don't understand the technology in question.

Last year Techdirt wrote about Leah Day, who was trying to introduce a free model to quilting -- apparently a bold thing to do. Sadly, it seems that the ownership mentality is nonetheless spreading in her field, as she reports in this really excellent new blog post entitled "Copyright Terrorism":

Copyright issues seem to be cropping up with increasing frequency in the quilting world and I for one would like to try to stem this flow, or at least open your eyes, to the very real threat looming for our craft.

What is this threat? Where is it coming from?

It is coming from within our own ranks. Quilters with a certain penchant for copyright and legal wrangling are turning our open, creative craft into a mine field of rules, regulations, licensing, attribution, and copyright lockdown that it's enough to make anyone set down their rotary cutter and sell their sewing machine.

She then goes on to describe a recent case that perfectly summarizes the growing insanity beginning to infect the world of quilting:

The basic story goes like this: Emily Cier wrote a book called Scrap Republic for C&T Publishing. Moda, a fabric manufacturer sent her lots of fabric for free to create the quilts in this book.

So far, so good. But things got more complicated when somebody tried to build on that work -- which is precisely how art has always proceeded:

C&T Publishing randomly flipped through the book and picked a photo of one of the quilts, enlarged the image and printed it on the front of an eco tote bag.

Keep in mind, the fabric used in the quilts were obvious. The pieces they were cut into were large, making it very clear which line of fabric each quilt is created from.

The quilt used for the eco tote just happened to have been created using Kate Spain's Fandango fabric. Kate saw the bags and decided they violated her copyright of her fabric line.

Kate Spain then initiated a lawsuit against C&T Publishing and Emily Cier and demanded both the eco totes AND the books be destroyed.

Now things get murky because on her blog, Kate Spain denies starting a lawsuit, but it's obvious on both C&T's and Emily Cier's blog that a real, big, scary lawsuit was initiated. C&T Publishing ended up taking the blame and came to some accord with Kate Spain.

Day then points out just what a mess this is if people try to think in terms of ownership:

Let's work backwards: the tote bag was printed with a PHOTOGRAPH which was taken by a photographer for the book. Whoever that person was, they aren't credited in the book.

The QUILT was designed and created by Emily Cier.

The FABRIC used in the quilt was designed by Kate Spain.

Who really own the copyright?

She contrasts this mentality with the fashion industry, where there is no copyright (despite the continuing attempts to bring it in.) There, creativity is not only blossoming in a way that is hard to match elsewhere, it has created a huge, profitable industry many times larger than all the copyright companies put together, as the well-known TED talk on the subject emphasized.

She points out where the current obsession with ownership is taking her field:

If we lock up this industry, we will lose something powerful, something essential, something that brought me to quilting in the first place: freedom.

Freedom to play with fabric. Freedom to experiment with different shapes and layouts. Freedom to play with new techniques and materials. We can lose the freedom to create.

Because if you have to check with 5 different fabric designers and the quilt pattern designer AND the free motion quilting designer in order to make your quilt, how likely are you to do it? Even the idea of asking, even words like "licensing," are enough to send many people packing. Off to find another hobby the lawyers haven't ruined yet.

Finally, she offers her own vision of how things could be:

If you post something: an idea, a technique, a pretty picture, whatever, man up and give it away for free.

REALLY free. As in copyright free - as in anyone can use whatever you post for ANY reason.

What's the worst that can happen? Someone might teach your technique or idea. More people will learn it and enjoy it than you could ever reach alone. Is that such a terrible thing?

Several times in her commentary, Day raises another key issue: that of attribution. As she points out, artists need their work to be attributed, so that people can give them credit, and maybe contact them to buy or commission more work. It's the absence of attribution, not the absence of copyright, that can be problematic -- and not just for quilters, but also for the photographers that take pictures of their work, and the designers of fabrics that might be used as raw materials.

It's really a wonderfully rich post, which touches on many aspects of copyright and creativity, and I urge you to read it -- along with the forthright comments (already there are 142 of them.) It provides another example, alongside the fashion industry, of a field that is currently flourishing without copyright, but that is under threat from those who have bought into the story that assigning ownership to something as insubstantial as ideas somehow promotes creativity, when in fact all it does is to shut it down through a creeping, paralyzing fear of infringement, as Day so vividly describes.

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