Copyright Being Used To Stifle Attempts To Preserve A Dying Language
from the locking-up-language dept
One of deep-seated problems with copyright is that its supporters believe everything created should be “owned” by someone and protected from being “stolen” by others. We’ve already written about how that’s a bad fit for writing music, and NBC News has a fascinating story about how the same issue is plaguing a very different world – that of indigenous languages (pointed out by D. J. Mary on Twitter). It concerns the Lakota language, one of many native American languages that are at risk of extinction because so few people speak them fluently. In recent years, there have been increasing efforts to create language resources from the surviving speakers, to prevent the language and its culture being lost, and to produce learning materials. The long and interesting article discusses the details of the dispute between the Lakota Language Consortium and some Lakota language speakers, like Ray Taken Alive:
The Lakota Language Consortium had promised to preserve the tribe’s native language and had spent years gathering recordings of elders, including Taken Alive’s grandmother, to create a new, standardized Lakota dictionary and textbooks.
But when Taken Alive, 35, asked for copies, he was shocked to learn that the consortium, run by a white man, had copyrighted the language materials, which were based on generations of Lakota tradition. The traditional knowledge gathered from the tribe was now being sold back to it in the form of textbooks.
The story touches on many important issues concerning cultural appropriation. But one of the key problems is that materials recorded and written down from native speakers are automatically covered by copyright, and that means people can argue over who owns them.
A common trait of Native American cultures is to hold things like land, resources and knowledge communally. That runs into conflict with U.S. copyright laws, which allow companies and nonprofit organizations to commoditize their work product — including pieces of a shared language.
That’s an issue not just for the Lakota tribe, but many others, both in the North America and further afield. It’s ironic that laudable endeavors to preserve culture and heritage for humanity can end up in these kind of legal squabbles over ownership – all thanks to copyright.
Originally posted to the Walled Culture site.
Comments on “Copyright Being Used To Stifle Attempts To Preserve A Dying Language”
Wow, cool idea! Think I’ll adapt Latin, copyright the result, and make a mint. /s
Seriously, I don’t think a language can be copyrighted unless it’s invented, and even then it’s a stretch. But I suppose it’s a good way of making sure a dying language stays dead. (-_Q)
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The problem is in how they were able to copyright all the archival material chronicling the language. All the individual recordings of anyone speaking it who still spoke it. Reproducing all of that in an open format would require going back and starting from scratch, and many of those interviewed, having been elderly to begin with, may not still be alive.
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Reproducing all of that in an open format would require going back and starting from scratch…
Or just freely licensing the materials back to the Lakota tribe. Another point is that my way is a lot simpler.
Nothing says 'we value this culture' like slapping a price tag on it
Of all the groups to take something that had belonged to them collectively and then sell it back to them…
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Well snatching the children & placing them in residential schools didn’t beat the native out of them, so just another white man trying to erase them so he doesn’t have to think about what his forefathers did & continue on the idea that white people found this empty land and built a new god fearing nation.
I am torn if this white asshole is worse than the helpful white people who built a “town” right on the edge of the res that consists of a liquor store.
some points
Claiming copyright over someone else’s utterances, I understand, is an absurdity, because copyright adheres to something you yourself have made or said. Claiming copyright over the utterances of an entire community, is that absurdity cubed, or higher.
As far as I can see, the only copyright the Lakota Language Consortium could claim would be that of the data collator, and that is a very restricted right.
As far as selling Lakota their own language textbooks back to them as what seems to be a highly marked-up price, I would suggest that this consortium arrange to forego most of that mark-up themselves, so that their target market can actually buy them – or where it is unavoidable, arrange with the relevant federal authorities to pay for that. It wouldn’t be the first time subsidies have been used to good effect – many literacy programs have been subsidized by religious outfits.
Now it’s out of their hands, I would suggest they tone down their rhetoric and act in concert with the people they claim to be helping, and they might win back their respect.
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Imma thinking you haven’t noticed the long history of white folk knowing whats best for Native Americans, taking what they wanted from them because it could make them money, and then only dribble the smallest amounts to them for their troubles.
I’m sure there are contracts to make it all “legal”, that were never explained to the elderly speakers, they were just told sign this so we can save the language with your help before its gone. Imagine children learning the history of the tribe & their language.
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Oh puleeeez! The same thing went on all over the world – where they couldn’t massacre at will, the invaders made laws and treaties and broke them at will.
You know, the same process of tying the indigenous folk up in legal knots while allowing foreign, or “absentee landlord”, folk to claim their property, went on – in Hawaii, where the plantations took the common land that should’ve been the native Hawaiians; in New Zealand where the Maori had to divide tribal land – what remained – because British law didn’t recognize tribal association as a valid owner, though it was for all intents and purposes indistinguishable from the commons of the English yeomanry; in Palestine where the Ottoman Sultan, bowing to pressure from the European Great Powers, sold off the common land (nominally “state” land) where the villages were, to a bunch of Beirut speculators.
As if that was any different to the pressure the Hopi and Navaho had to face over uranium mining in their reservations, or what the Australian First Nations in the Northern Territory had to face over uranium mining in their lands too.
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So because it happens in loads of other places makes it OK, does it? Ever heard the saying, “Two wrongs don’t make a right?” Get off your high horse. ‘,:-|
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Claiming copyright over someone else’s utterances, I understand, is an absurdity, because copyright adheres to something you yourself have made or said.
You mean like the recordings made by the person who was employed by the Lakota Language Consortium?
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Oh for pity’s sakes, didn’t you read what I wrote? The person who recorded what the people said, merely recorded what they said. He, she or it did not add anything to that utterance, therefore his (etc) copyright is strictly limited to that of data collator.
And of course, that doesn’t deal with the concept of property used by pre-modern societies. I’ve read a lot of rubbish over the years about how pre-modern societies have no concept of personal property, etc, how everything is “owned” in common, etc. And from where I am sitting, that indicates the person so theorizing, has not yet separated the concept of public from the concept of personal, and is thus a dangerous lunatic.
The tribe, or village, would “own” what is too large to be an individual’s personal possessions. An individual would “own” what could be separated from the “patrimony” of his tribe or village for his or her sustenance. It’s pre-eminently sane, unlike the capitalist/monarchist view that an individual can “own” an entire people or trade. (A not-dissimilar view held sway at one stage in the British Isles, where a village “owned” a large section of land, and the villagers divvied it up between themselves for their own sustenance. Where it came unstuck was through the bad offices and bad faith of the squires, the very people who were supposed to guard the interests of the villages – they misappropriated the commons – that is the real Tragedy of the Commons – privatization by alleged defenders of the common good, for their own benefit. Does it surprise you that nobody mentions that? It doesn’t me.)
What these individuals in this organization have done, under pretexts of preserving the patrimony of the Lakota people, is treat it as though it is no more than an individual property. And that is both an absurdity and an insult to the Lakota.
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Oh, for pity’s sakes, didn’t you comprehend what I wrote? The person who recorded what the people said *fixed their utterances in tangible form, as per the requirements of the Copyright Act 1976. DYFR. (-_Q)
I found the NBC article and what I think is one of the most tone deaf things I’ve ever read…
“A representative for the Lakota Language Consortium said in a statement that the group “has always encouraged teachers to copy and share our Lakota language learning materials with their students. This is clearly different than someone copying the entirety of an author’s work and distributing it as their own.” ”
Like the books they publish of the stories they got from elders & claim copyright over?
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‘We want our materials to be shared… but only inside the classroom after it’s already been paid for, can’t have anyone else learning about the language and culture without paying us for the privilege.’
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But schools buy the books, and then pay for annual licenses to use them every year. The Lakota don’t want to do that, so why should we give a fuck about their language and culture surviving?
This is a job for Carl Malamud.
https://en.wikipedia.org/wiki/Carl_Malamud
I’m not 100% sure how I feel about this one. What exactly is the copyright claiming? Are they are just claiming copyright over the fixed works of the textbook itself, not the underlying language or the dialogues of the speakers? How was the production of that work funded? By donations or was this purely a for profit enterprise?
If they are just claiming the textbook and it was a for profit enterprise funded by investors then you have a case where copyright did what it was supposed to do. It created a useful work that apparently no one else was willing to create that would never have been created had someone not seen a chance to make a profit.
However if they were funded by public donations, this is an abomination.
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No offence, but none of your points get to the crux of the matter which is that the Lakota Language Consortium are saying their copyrighted materials can’t be copied in any way by anyone at all, including members of the Lakota tribe. This wouldn’t be a problem if the materials were in English because there’s so much written and spoken and sung in that language all over the world that it won’t die any time soon, but the materials controlled by the LLC are the only remaining sources of the Lakota language, hence the issue.
Public versus private funding is complicated, because the project was an effort of the soverign Lakota Suiox Tribe, but was operated under a US non-profit. It should be ‘public funds’, as a work funded by the tribe, but US copyright law might see the Tribe as a private entity.
As far as I can tell, they claim copyright on recordings of the elderly native speakers made to document the language as it was spoken, stories that were previously not ‘fixed’ under an oral tradition, and any work product documenting the language.
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They applied for grants for LLC & the tribes to pay for collecting the information…
Wonder who handed those out?
copyright is used to stifle EVERYTHING, whether it is justified or not, whether it is legal or not and whether it’s gonna do massive harm or not! as long as someone (usually the entertainment industries) can totally screw up someone’s life and make an absolute fortune at the same time, preventing them from having to actually produce anything new for public release and satisfaction, it is irrelevant! why would any company bother to spend $250m making a movie when it can sue someone, get $200m because the thick cunt on the bench sides with the industry (for a consideration, of course!)? massive payment but not done a bit of work and hardly no expenditure! get closer to taking control of the internet at the same time. what a plan!!!
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Weird. When someone torrents something illegally, people say, “Blame the infringer, not the tool.” Yet when someone abuses copyright legislation…
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Nah… Not weird at all. That’s because context is an actual thing (as is nuance).
That’s why when people die in a traffic accident at some intersection, we blame the driver if he was driving drunk or distracted, blame the mechanic if the brakes were improperly maintained, and blame the manufacturer if a design flaw in that model is prone to drop the car into gear without driver action, when idling at a stop… and blame the city if the traffic signals are mis-timed or otherwise at fault.
In this case, with the Lakota being run over by copyright law…
… actually, I think I’ll leave this for you as an exercise in practical application, just in case you were actually serious in the first place.
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This case is actually what I’m talking about. Here, it’s the maximalists at fault, not the laws they’re abusing. Why is that so hard for you to understand?
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A well-designed law would provide a remedy for abuse. If the law lacks such measures, then the law should be changed or augmented. Have you been sued for defamation because you wrote an earnest criticism piece? That’s where an anti-SLAPP law would come in handy. A defamation law without such a safeguard should be changed to have one. The same goes for a copyright law without a safeguard against false infringement claims.
If a gun in a shooting has a working safety, then the manufacturer generally should bear no responsibility for the shooting. Don’t blame the tool and don’t blame the toolmaker, but only as long as the toolmaker designs and manufactures the tool properly. Are people getting hurt in gun accidents because the manufacturer’s guns consistently exhibit defective safeties? Then someone should sue the manufacturer and the manufacturer should change the gun (or stop selling that line of models).
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Not so weird if you consider that torrenting tools are necessary for torrenting, but copyright law is not necessary for making creative works. In comparison with a tool, a law (or even a rule in non-legal context) also has a much greater capacity to influence people’s actions. An app with bare minimum torrenting functionality doesn’t encourage or discourage copyright infringement. Torrenting allows people to share large files without placing a burden on any one person’s computer. On the other hand, copyright is designed in such a way that it encourages abuse. Statutory damages can be ridiculously high (up to $150K per instance of infringement) with no regard to the actual impact (frequently negligible and sometimes positive) of the infringement as long as the infringement happened (or as long as the court can be fooled into thinking that infringement happened). Meanwhile, it is almost impossible for the average person or small company to fight a false claim of infringement.
Here’s an analogy.
A knife is a tool. There are legitimate and illegitimate ways to use a knife. If I use the knife to scratch someone, then the knife is not responsible for the injury. I am responsible for the harm.
Suppose that I make the following rule: anyone who enters my house must allow me to scratch their arm with a knife. This rule theoretically doesn’t necessitate harm (because I can exempt people and because people may not need to enter my house) but in practice would result in harm (because who wouldn’t get an urgent visit every once in a while?). Because this rule promotes harm and because I weaponize the rule to harm others, the rule must be removed and I am responsible for taking advantage of the rule to hurt people.
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A law with copyrighting functionality doesn’t encourage or discourage copyfraud. Your point?
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I’m the same person you replied to.
A tool (such as a knife or a car) can have functionality without enforcement mechanisms. An old-fashioned car cannot tell who is driving it. Anyone with the key can use it. An example of an enforcement mechanism would be a car advertized as being able to detect whether the person attempting to drive it is drunk. If a drunk person drives the old-fashioned car, then the car manufacturer generally cannot be faulted for damage caused by the drunk person’s driving. On the other hand, if a drunk person manages to drive the “smart” car because the car fails to detect that the person is drunk despite manufacturer’s claims in advertizements, then it may be reasonable for victims of the drunk driving incident to sue the car manufacturer.
A law is unlike tools such as knives and cars because a law cannot have “functionality” without enforcement mechanisms. Copyright can’t meaningfully exist unless copyright laws specify penalties for infringement or for false claims of infringement. Current copyright law authorizes disproportionately large penalties (theoretically, up to $150K for making a meme from someone else’s picture) but fails to impose a meaningful penalty for making false claims of infringement. The burden of proof required to obtain an excessively large amount in statutory damages for infringement is very light, but the burden of proof required to fight a false claim of infringement is for most people and small companies impossible to meet. To discourage abuse, the penalty for making a false claim of copyright infringement should be made more similar to the penalty for committing copyright infringement.
Summary: If a tool isn’t designed to stop people from abusing it, then the maker of the tool usually cannot be held responsible for harmful uses of the tool, unless the tool is expressly designed to harm people. If a tool is designed to stop people from abusing it (e.g. a law) or is represented as being able to do so (e.g. a car advertized as being able to prevent drunk driving), then the maker of the tool can be held responsible for harmful uses (potentially including harmful accidents) of the tool. The maker of this tool may have to stop selling it or change the tool to work better. Copyright law is severely imbalanced by design, so it must be reformed.
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As the AC below said, this is a false analogy, and your doubling down only proves how insubstantial your “argument” is.
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Here’s a false analogy.
*wall of text follows*
FTFY. YW.
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Are you trying to have a productive conversation? If not, then please keep your thoughts to yourself. You haven’t “fixed” anything. Please elaborate on the flaws of the analogy and explain why the flaws undermine the argument that copyright law needs to be changed.
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You compared the apples of knives to the oranges of copyright law. I’d go further into it, but I think your obvious struggles to understand would only increase.
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Indeed. My argument was two-pronged. If you agree that tools such as knives are different from “tools” such as laws, then you should consider holding knives and laws to different standards. However, it is still possible to apply a consistent standard to both knives and guns.
I’ll swap knives for guns in my analogy because I’m not aware of any safety regulations which specifically target knives. If a gun is made and sold in accordance with all relevant safety regulations, then the manufacturer and the vendor respectively are not responsible for shootings which involve the gun. Of course, if the manufacturer had instead failed to follow regulations in designing the gun, then the manufacturer would be required to change the gun or stop making it. If the manufacturer had long been notified that the gun design was faulty but chooses not to change the design, then the manufacturer is partially responsible for any injury which would have been prevented had the manufacturer corrected the design. If a vendor in a state requiring background checks had failed to conduct a background check on a customer who later started a shooting, then the vendor is partially responsibile for the shooting’s occurence. More than one party can deserve blame in a shooting.
Now consider US copyright law, which makes it nearly impossible to sue over a false claim of copyright infringement because of the prohibitive costs and the high burden of proof: the plaintiff must prove that the defendant filed a false infringement claim knowingly and in bad faith. On the other hand, a copyright holder (or someone who claims to be the copyright holder) suing for infringement only needs to meet a comparatively trivial burden of proof: as long as some degree of copyright infringement occured, then the court can award statutory damages of up to $150K per instance of infringement, even if the infringement had a negligible (or even positive) effect, if the portion of the copyrighted content infringed was small, and if the defendant believed in good faith that they didn’t infringe on the copyright. In short, copyright law is excessively skewed in favor of copyright holders and hence promotes copyright trolling. Copyright maximalists would make copyright law even more imbalanced, but copyright law is already problematic as is.
Copyright law is the gun and Congress is the gun manufacturer. The difference between a real gun model and copyright law is that in the latter case the manufacturer is the same party which controls the safety regulations. A gun manufacturer whose gun design violates safety regulations is required to resolve the issue immediately. For decades, copyright law has been at best incomplete and outdated because it lacks effective safeguards against abuse. At worst, copyright law was deliberately designed to make it as hard as possible for defendants in infringement cases from winning infringement suits, however frivolous the suits are. People and organizations (such as Mike Masnick and Techdirt!) have been telling Congress about problems in copyright law for decades, but Congress hasn’t remedied the issue and occasionally tries to double down on the problematic parts. If a gun manufacturer is notified that the design of a model violates regulations but chooses not to change the design for decades, then the manufacturer is partially responsible for design-related accidents in the period after the manufacturer was notified. The same goes for a seller who refuses for decades to implement background checks in a state which requires them. Why should copyright law and Congress get a pass? Copyright law is partially responsible for the abuse which would have been prevented with effective safeguards (such as balanced burdens of proof and meaningful penalties for filing false claims of infringement). For failing to add those safeguards for decades, Congress members (and by proxy, we the citizens) are partially to blame for this abuse. (The remaining responsibility, of course, falls on the parties abusing cooyright law.) Copyright law must not stay the way it is.
Tl;dr: If you agree that knives and copyright law are different, then consider that the “blame the user, not the tool” standard which applies to knives and guns should not apply to copyright law. Either way, note that “blame the user, not the tool” is incomplete: Blame the toolmaker only if the toolmaker made the tool incorrectly. Blame the tool vendor only if the vendor sold the tool incorrectly. Multiple parties, including the user of the tool, can be responsible at the same time.
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Injure someone by pushing them through a window, shall we blame the window because it’s not a tool and should therefore be held to a completely different standard? Just because two entirely things don’t bear direct comparison enough to be used in analogies, doesn’t mean they can’t be treated the same in certain limited ways. Quit doubling down, stone brain.
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That’s not what I was arguing. What makes a window different from a knife in my analogy? A window and a knife obviously should be held to the same standard, regardless of whether a law should also be held to that standard. And while I suggested in passing that a law and a knife could be held to different standards (because a law cannot exist without specifying enforcement mechanisms, the very sources of harm in a bad law), I never insisted that a law and a knife have to be held to different standards. In fact, I offered (and am in favor of) a standard which could apply to any thing made by humans: if a human-made thing violates a law or has a design which consistently promotes harm, then whoever made the thing has a responsibility to change the design or to get rid of the thing.
There’s no way to change the design of a knife to be unable to be used maliciously without getting rid of the knife’s functionality. The same applies to a gun. Assuming that you mean the glass part instead of the hole in the wall when you refer to a window, the material of a window usually isn’t the thing people focus on when someone gets pushed through a window, so there’s little need to change the design of a window either. (If you’re referring to the hole in the wall, then the glass IS the safeguard, so no design change is necessary there.)
As for US copyright law, plenty of people and organizations have informed Congress about the chilling effects and malicious litigation which arise from the lopsided penalties. Therefore, Congress has a responsibility to change copyright law to reduce abuse.
As part of my argument, I presupposed that US copyright law is faulty but fixable. After all, there’s a considerable amount of evidence on Techdirt that the “faulty” part is true. If you believe that my assumptions are incorrect, then I’ve been in the wrong stage of argument this entire time. Please correct me if so.
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Assuming that you mean the glass part instead of the hole in the wall when you refer to a window, the material of a window usually isn’t the thing people focus on when someone gets pushed through a window…
Because no one’s ever been cut with broken glass from a window. Riiiiight. Dumbass.
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Super weird if you consider that torrenting tools are necessary for torrenting, but not necessary for downloading.
FTFY. YW.