from the seems-more-likely-to-become-more-accepting dept
Back in 2010, we wrote about Google's Eric Schmidt suggesting that in the future kids might change their names as they reach adulthood in order to disconnect their present-selves from their youthful indiscretions that were recorded permanently online. That seemed a bit silly to us at the time, but Schmidt is still focused on this basic concept apparently. His latest is the desire for some sort of delete button for the internet, again as a way to cover up some youthful indiscretions:
"In America, there's a sense of fairness that's culturally true for all of us," Schmidt said. "The lack of a delete button on the Internet is a significant issue. There is a time when erasure is a right thing."
Of course, this makes me wonder, what the hell did Eric Schmidt do as a kid that was so bad?
Yes, yes, we erase the criminal records of youthful offenders when they come of age, but I think this is something different. Trying to delete factual information from the internet is a quixotic task, unlikely to yield much that's beneficial.
Perhaps instead of trying to delete the past, society as a whole will become a lot more accepting of the fact that kids do stupid things when they're young. And many of them learn valuable lessons from those stupid things and they grow up to be better people. Plenty of folks have funny tales of their youthful indiscretions and, while these stories may be more difficult to embellish for effect if the details are all sitting on YouTube, does it really make more sense to try to delete that history or just to recognize that kids grow up and things they did as teenagers do not reflect how they're likely to act as adults?
I watched a large part of the House Subcommittee on Intellectual Property's first hearing on copyright reform, and came away somewhat disappointed. While the panelists presented a variety of interesting viewpoints and worked hard to highlight areas of agreement, many of the Congressional Representatives were clearly confused about the law, the Constitution and the nature of the debate itself. I came away with a few key concerns, but also with some ideas for a framework that any debate on copyright should necessarily take. First up, the concerns:
Too many Representatives flat out mis-stated what the Constitution says. They said that the copyright is "guaranteed by the Constitution" or that their Congressional mandate is to protect science and art. Neither is true. The Copyright Clause of the Constitution grants Congress the power to issue "exclusive rights" for the sake of promoting the progress of science and the useful arts. That is, it was never about "protecting" but about "promoting the progress." Those are very different things. For that matter, it had nothing to do with creative works, for the most part. If we go by the originalist mandate, "science" was the part that copyright was about, and it meant "learning." The framers of the Constitution were focused on promoting learning and education via copyright, not a specific entertainment business. That it does that now is fine, but don't claim that the Constitution says that Congress must "protect" the entertainment industry. Because it says no such thing. After all, that same section grants Congress the power to grant letters of marque to privateering ships to seize foreign ships. If copyright is guaranteed by the Constitution, then so would the right to demand your right to a letter of marque.
Too many representatives continued to set this up as a battle between "content creators" and "the tech industry." This is dangerously misleading. In fact, at one point, Rep. Deutch flat out said that any copyright reform must carefully benefit "creators and the tech industry, as if those were the only two stakeholders. The real stakeholders of copyright law, however, have always been the public, who were barely mentioned at all in the hearing. Or, when they were mentioned, it was often with the somewhat disparaging term "users."
Finally, the myth that "everyone just wants stuff for free" was brought up a few times, in an effort to defend the idea that greater enforcement is a necessity. Except, that's not true. As we've seen over and over again, consumers are actually spending more today on entertainment than ever before, according to the Bureau of Labor Statistics. And tons of studies have shown that the biggest infringers also tend to be the biggest spenders. You don't make good policy based on catchy myths, and this one is a myth. It should be stricken from the debate as false. And, I won't even bother with the one comment from Rep. Poe that "copyright won the cold war." Where do we get these people?
Given all that, if we wanted to look honestly at copyright reform, it needs to start from a few basic principles. Here are a few preliminary thoughts on a potential framework for discussing these things.
Pretty much everyone is both a content creator and a content consumer. Over and over again we heard about concerns of certain creators as if they were a separate class of people unrelated to the wider public. That's silly. Especially as we have copyright law today -- in which every piece of creative content is immediately covered by copyright at the moment the expression is set in fixed form -- we are all creators. Nearly every email you write is probably covered by copyright. Every creator is also a consumer of content, and that includes professional creators. Professional content creation often involves building off of the influences of other works. We should support that as well. Otherwise, we begin to treat copyright as a sort of welfare program for professional creators, which is never what it was intended to be.
Technology is just a tool. It is neither a competitor to, nor an enemy of, content creators. With so many Representatives setting up the debate as "content vs. technology," we start to go down a very dangerous and distorted path that has little to do with reality. As a tool, technology certainly can create challenges for existing and traditional business models, but also tremendous opportunity. Look at the success of platforms like Kickstarter today. Would anyone seriously argue that the "technology" company Kickstarter is "anti" creator? Similarly, we're seeing more and more artists succeed by embracing new technology platforms that enable them to do amazing things: Bandcamp, TopSpin, BandZoogle, ReverbNation, SongKick, Dropbox, SoundCloud, Netflix, YouTube, Facebook, Twitter, HumbleBundle -- and many, many, many more. The list literally goes on and on and on. These are the tools that so many content creators are embracing today to help them to be better able to create, to promote, to distribute, to connect and to monetize their works than ever before. To argue that this is tech vs. content, when the tech companies seem to be handing content creators the most useful tools they've ever had to be successful, seems ridiculous.
Every legislative choice has costs and benefits. Too often, it seems like those pushing a certain proposal like to only look at one side of that equation. If we're to have an effective debate over copyright reform, it should include an upfront look at the costs and the benefits, the conditions and the consequences of various decisions across the board on the public. The purpose of copyright law, explicitly, is to promote the progress. We should be weighing carefully whether or not each change really would promote progress of science and the useful arts.
Decisions need to be made based on empirical data. As we've discussed in the past, historically, copyright reform discussions have been almost entirely faith-based. This is why the claims of "everyone just wants stuff for free" are so concerning," since the data suggests that's not even close to true. Given the recent call for objective research that would be useful in the copyright debate, by the US National Research Council, I'm hopeful that we'll actually begin to see some useful data for this discussion. Hopefully those in Congress will actually pay attention to the data, rather than continue to insist that blatantly false claims must be true.
Finally, and most importantly, the focus needs to remain on promoting the progress of science and the useful arts. It's not about "protecting" any industry or any class. It's about what most helps to promote overall progress. Each proposal should be judged on that standard.
While it may be difficult, I think that if any discussion on copyright reform begins with those basic principles, it could end up being quite useful and informative.
Fresh off of explaining why the President can use drones to kill Americans on American soil, Attorney General Eric Holder apparently feels emboldened to say just about anything to justify ridiculous government actions. The latest? Defending the Aaron Swartz prosecution at a Congressional hearing called by Sen. John Cornyn, who has already expressed his concerns over the prosecution.
As you might expect, Holder stuck with the official line that what the DOJ did in the Swartz case was perfectly reasonable. The key to his argument, as we've been hearing from others who defended the government's actions: the DOJ never intended to put Swartz in jail for 35 years. Also, apparently it was unfair of the media to use that 35 year number.
As I've talked to the people who have looked into this matter, these news reports about what he was actually facing is not consistent with what the interaction was between the government and Mr. Swartz. A plea offer was made to him of 3 months, before the indictment. This case could have been resolved with a plea of 3 months. After the indictment, an offer was made and he could plead and serve 4 months. Even after that, a plea offer was made, of a range of zero to 6 months, that he would be able to argue for a probationary sentence. The government would be able to argue for up to a period of 6 months. There was never any intention for him to go to jail for a period longer than 3, 4, potentially 5 month range.
These claims are not only misleading, but also total and complete bullshit. First off, if you never intended for him to spend more than 6 months in jail, and you're upset at the "media" for using the 35 year number... why is it that the DOJ's own press release on the arrest played up the 35 years:
AARON SWARTZ, 24, was charged in an indictment with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, and recklessly damaging a protected computer. If convicted on these charges, SWARTZ faces up to 35 years in prison, to be followed by three years of supervised release, restitution, forfeiture and a fine of up to $1 million.
I'm sorry, but you don't get to push that number around in your own damn press release and then whine and complain about how "unfair" it is that the media uses the number you gave them.
Separately, concerning the insistence that they never wanted him to spend more than 6 months in jail, they leave out the fact that this was only if Swartz agreed to plead guilty to multiple felonies. According to various reports, the DOJ, via Assistant US Attorney Steve Heymann made it clear that if Swartz did not agree to the plea, then he would seek somewhere around seven years in jail.
Cornyn goes on to ask about why the DOJ pursued the case even after the supposed "victim," JSTOR said it didn't want to have anything to do with the case. Cornyn specifically asks if it makes sense to threaten someone with 35 years in prison when the victim doesn't even seem to feel harmed by the situation. Holder than tries to spin this around and, incredibly, argue that the fact that they didn't pursue the full 35 years is an example of good prosecutorial discretion. Seriously.
Cornyn: The subscription service didn't support the prosecution. Does it strike you as odd that the government would indict someone for crimes that would carry penalties of up to 35 years in prison and million dollar fines and then offer him a 3 or 4 month prison sentence?
Holder: Well I think that's a good use of prosecutorial discretion. To look at the conduct, regardless of what the statutory maximums were, and to fashion a sentence that was consistent with what the nature of the conduct was. And I think what those prosecutors did in offering 3, 4, 0 to 6 was consistent with that conduct.
In other words, the only thing Holder is really saying here is that there was perfectly reasonable prosecutorial discretion if and only if Swartz agreed to a plea bargain in which he plead guilty to all felony charges against him. Basically, it's a "good use of prosecutorial discretion" to bully someone into pleading guilty to a crime they don't believe they've committed, and as long as they accept that, go to jail, and be okay with being labelled a felon for life, then there's no problem.
How do we let these people into positions of power?
As publicity rights become more in vogue these days, we're seeing stories of them being invoked in silly situations. We recently discussed Kim Kardashian suing Old Navy because someone looked like her. And, as if that weren't bizarre enough, this explosion in interest for publicity rights has led to the rather unsettling question of who owns the rights of dead people, like Marilyn Monroe.
Now, to add another ridiculous example, reader Eric Wisti writes in about The Julia Child Foundation for Gastronomy and the Culinary Arts going up against BSH Home Appliances Corp., manufacturers of the Thermador oven line, for noting in marketing material that Child used their ovens on her popular television shows. It's an interesting case in that BSH allegedly used images of Child in their material, but this was again to demonstrate a historical fact.
The Julia Child Foundation for Gastronomy and the Culinary Arts claims BSH Home Appliances Corp. is using Child's name and image without permission. The Irvine, Calif.-based manufacturer says it is simply making a factual reference to Child's use of its appliances.
Child, who died in 2004, had a Thermador oven in her Cambridge kitchen. It's now displayed at the Smithsonian National Museum of American History in Washington. She also used Thermador products on the set of her popular television show, "The French Chef."
The JCFGCA (Holy acronym, Batman!) sent a letter to BSH informing them that they have exclusive rights to Child's "name, image, likeness and celebrity identity" and that the marketing material and images the company put together infringed upon those rights. They are seeking an injuction and the always ambiguous unspecified monetary damages.
The crux of the issue from the foundation appears to be that they think BSH's material implies an endorsement by Child, despite the chef being historically reluctant to endorse products in general. I'm a bit confused as to how acknowledging Child using a product equates to an endorsement of that product. I'm perhaps even more confused as to how someone who has been dead for eight years could suddenly begin endorsing anything at all anyway. It seems to me that the kind of person who would be swayed by an edorsement by Child likely is aware of her current incapacity to endorse... well, anything. The company's filing concurs:
BSH acknowledges that it has used images of Child and references to her use of Thermador products on its website and on social media sites, but its attorneys wrote in the complaint that "those uses do not state or imply any endorsement by Ms. Child."
The company said its references to Child "reflect on the long history, significance and influence of Thermador products on American society and culture, and Ms. Child's documented and well-known use of those products."
The material, it would appear, was used simply to state a historical fact. Using Child's image may fall into more of a grey area, but I would think historical facts are not subject to publicity rights.
On the other hand: won't somebody think of the dead culinary artists!?!?!
One thing I always find particularly silly in the mainstream media is when they claim "exclusive" on a story. News is not "ownable," and the second someone gets a story out, that news is out there and the facts are available to anyone else. So every time I see publications claim "exclusive!" it makes me laugh. It may be exclusive for a few seconds, at best. But, old school journalists seem to get really really picky about those things, as evidenced by this particularly stupid argument over who gets "credit" for a story. It seems that the NY Times and Reuters both had reporters working on the story, and the NYTimes tweeted the news out about 26 seconds before Reuters did -- but the Reuters reporter is still demanding credit -- first claiming (incorrectly) that he tweeted it first, but then noting (correctly) that they published first. The simple fact is that no one cares, other than a couple of journalists. No one keeps score, and no one owns the news. After all, if we have to go back to the "original" source, then wouldn't it be the person the story is actually about?
Last year, we wrote about a dispute between two guys who had both recorded songs based on the number pi. A guy named Lars Erickson had recorded The Pi Symphony back in 1992 and registered a copyright on the output. It was based on assigning notes to the numbers 0 to 9, then playing them according to the sequence of pi. On March 14th, 2011 -- also known as Pi Day, since the 3/14 date matches the 3.14 beginning of pi -- musician Michael Blake came up with a similar idea. According to NPR's report on the song:
He decided the song would be in C, then assigned each note a number: C=1, D=2 and so on up through 9. Using those assignments, he played the sequence of pi: 3.14159 through 31 decimal places. He assigned numbers to chords, too, but could only play the chords every other note and still make it sound vaguely musical.
Finally, he used pi as the basis for the tempo — it's 157 beats per minute, which is half of 314. He played this part on several instruments, as you can see in the video above, and layered them to make a song. The result isn't exactly catchy, but it's certainly melodic.
Apparently Erickson got upset about this -- though he admits he was mainly upset that his own comments on the YouTube video of Blake's song were deleted. So he filed a lawsuit claiming copyright infringement.
Blake successfully had the lawsuit transferred from Nebraska to Portland, Oregon, and has now succeeded in having the case dismissed, with the ruling itself issued on March 14 -- Pi Day once again. The ruling is embedded below, and it's a worthwhile read, highlighting the limitations of copyright. It actually goes into a fairly detailed description of the separation between ideas and expression, as well as questions about "substantial similarity." The conclusion:
The primary similarity between Pi Symphony and "What Pi Sounds Like" is the musical
pattern formed by transposing the digits of pi to a set of musical notes. That pattern is not
protected by Mr. Erickson’s copyright for Pi Symphony. Pi is a non-copyrightable fact, and the
transcription of pi to music is a non-copyrightable idea. The resulting pattern of notes is an
expression that merges with the non-copyrightable idea of putting pi to music: assigning digits to
musical notes and playing those notes in the sequence of pi is an idea that can only be expressed
in a finite number of ways. This does not mean that Mr. Erickson’s copyright is invalid, only
that Mr. Erickson may not use his copyright to stop others from employing this particular pattern
of musical notes.
What may be protected by copyright is the combination of that pattern with other musical
elements: the choice of scale, rhythm, harmony, and embellishments or variation, for example.... Pi Symphony and "What Pi Sounds Like" employ different
rhythms, different phrasing, different harmonies, and different tempos. The court does not agree
with Mr. Erickson that the melodies of Pi Symphony and "What Pi Sounds Like" are sufficiently
similar in their cadence or tempo to raise a question of substantial similarity. If there are
additional similarities that relate to protectable elements of Mr. Erickson’s musical work, those
similarities are minor and scattered throughout the work. For one work to be substantially
similar to another, more than incidental and occasional similarities are required....
Thus, after the similarities based on unprotected elements of Pi Symphony are set aside,
very few--if any--similarities remain. Mr. Erickson’s copyright is therefore “thin” and protects
his work only from virtually identical copying...
The court also dismisses Erickson's claim of "unfair competition," noting that what appeared to be straight up jealousy is no reason for a legal claim:
Copyright protects against the copying of original elements of an author’s work. It does
not protect the copyright holder's goodwill, market status, or artistic success. It does not even
protect the author's hard work in being the first to create a compilation of information otherwise
available in the public domain. See Feist, 499 U.S. at 359-360 (rejecting the “sweat of the brow”
theory of copyright protection). These limitations derive from the constitutional basis of
copyright, which is “To promote the Progress of Science and useful Arts, by securing for limited
Times to Authors and Inventors the exclusive Right to their respective Writings and
Discoveries.” U.S. Const. art. 1, sec. 8, cl. 8. Copyright is thus intended to protect the original
work of authors without granting monopolies over facts or ideas that would hinder further
progress.... Given statutory law, the Constitution, and Supreme Court precedent, Mr. Erickson cannot use his
copyright to stop Mr. Blake from employing the same idea—the transcription of the digits of pi
to musical notes.
Nice to see the court lay out the reasoning so clearly. It's unclear if the court recognized the symbolic nature of issuing the ruling on Pi Day, but either way, it was a nice move.
One of the most fundamentally insane things about government and politics is the fact that evidence-based policy is frequently not the norm. It should be common sense that you don't create new laws and regulations without actual evidence that they will work, or even clear evidence on the scope of the problem they aim to solve. But as we know, things don't really work that way—it's a lot easier for politicians and legislators to make their push based on emotion and public perception.
As with any governmental problem, real change has to start with the citizens. We need to demand evidence, and try not to let ourselves or our peers rely on rhetoric when we discuss and debate important issues and participate in the political process. But governments are not blameless: too often, politicians treat evidence as an obstacle to their political goals, when it should be the motivator of them. Here in Canada, this issue has been slowly gaining attention over the past year with growing complaints that the current government requires scientists it employs to vet their results through a media office before releasing them, to ensure that they are politically on-message. The Globe & Mail recently published a firmly-worded editorial calling on the government to end this practice, and citing the many people who want the same:
Ottawa should respond to the growing controversy – outlined in the prestigious journal Nature – by freeing its scientists. The magazine is calling on the government to show that it will live up to its promise to embrace public access to publicly funded scientific expertise. The issue is serious enough that it was the subject of a panel at the annual meeting of the American Association for the Advancement of Science, held last month in Vancouver.
The Canadian Science Writers Association and the World Federation of Science Journalists have also sent an open letter to Prime Minister Stephen Harper, citing examples of researchers being prevented from sharing details about their published work on climate change, natural resources, health, and fisheries and oceans. In the case of studies involving collaborators from other countries, Canada often gets “scooped” by foreign media who are not subject to the same level of bureaucratic interference. That hardly qualifies as celebrating success in science.
Prime Minister Stephen Harper has drawn criticism before for exerting tight control over the media and all communications coming from his government, but this situation goes a step further. To censor scientists in this way neuters them and turns them into glorified copywriters, because the objective reporting of all evidence is the crux of the scientific pursuit. If this is how the government treats its scientists, then the government is not employing scientists at all.
This is a betrayal of Canadian citizens. A portion of our tax dollars goes to funding public scientific research, because it is supposed to benefit us by informing smart, effective policy, and that money is being squandered. We must call on the government to put scientists in their proper role: as shapers of the political agenda, not slaves to it. Until that happens, Canada bears the shame of being a country without public science.
The US has long rejected the idea that you get a copyright in return for the "sweat of your brow." It's not about the labor, it's about the creativity. That's why we don't allow "database rights" -- or copyrights on collections of factual data, such as a phone book. Europe, however, has gone in the other direction, allowing such database rights, much to the chagrin of many experts who recognize that such database rights are economically damaging. The one nice thing about this major difference in Europe and the US is that it's given us some natural experiments to compare like industries from the US with those in Europe. That research has shown that, for all the talk of how copyrights are needed to keep an industry strong, the US database market (where no such copyrights are allowed) has grown at a much faster rate than the European one -- with no significant other differences involved. In other words, the theory that copyright is needed to grow an industry has been proved false. In fact, the situation with the US stance on database copyright presents evidence that you can get greater growth and innovation without copyright -- because there's more openness, more value, and greater opportunities outside of locking down the data.
So a recent ruling that reader aldestrawk brought to our attention is pretty interesting. It involves a case we talked about a few years ago, where a UK court found that sports schedules could be covered by a database copyright, since it took effort to put together. Thus, newspapers and websites couldn't just repost a sports schedule without a license, even though it was just factual information.
It looks like that case got kicked up to the EU Court of Justice, who appears to have given another sensible ruling pushing back on what can be covered by a database copyright. Specifically, it appears the court suggests that a pure "sweat of the brow" argument is not sufficient, and instead, the work needs to show some element of creativity. In fact, it suggests that the copyright in a database copyright doesn't actually cover the data, but merely the creative input into "the structure" of the database.
The fact that the setting up of the database required, irrespective of the creation of the data which it contains, significant labour and skill on the part of its author does not justify, as such, the protection of it by copyright if that labour and that skill do not express any originality in the selection or arrangement of that data.
The court does not make a final ruling on the copyrightability of the football schedules, but kicks it back to the UK court to make a ruling given the EUCJ's guidance. Thus, the court will now have to look at whether there's any actual creativity in setting up the league schedule. It seems that should likely greatly limit the database copyright in the EU. It makes you wonder if others who have thought the database copyright was stronger, might start branching out a bit and experimenting.
Back in October, you may recall that software company Astrolabe claimed copyright over the time zone database and sued the volunteer maintainers of the public time zone database that is used by basically everyone to properly set the time. ICANN took over the database, and EFF took on the case of the two volunteers who were sued. Today EFF announced that Astrolabe has dropped the case and promised not to sue going forward.
In a statement, Astrolabe said, "Astrolabe's lawsuit against Mr. Olson and Mr. Eggert was based on a flawed understanding of the law. We now recognize that historical facts are no one's property and, accordingly, are withdrawing our Complaint. We deeply regret the disruption that our lawsuit caused for the volunteers who maintain the TZ database, and for Internet users."
In other words, the EFF did a typically excellent job explaining the basics of copyright law to Astrolabe, and/or its own lawyers realized that this case was a complete loser that was going to fail badly.
We've pointed out before that Lamar Smith based his entire argument for why SOPA was needed on misleading or simply incorrect claims -- but who are we to say that? Thankfully, it appears that the professional fact checkers are in agreement that Smith's argument for SOPA isn't based in reality. The famed PolitiFact fact checking operation has completely dismantled Smith's claim that "illegal counterfeiting and piracy costs the US economy $100 billion every year."
It turns out (as we've pointed out) there's nothing true about that statement. PolitiFact tracks down the key points on which Smith bases this claim, noting that it's a Chamber of Commerce report that says, "the U.S. consumption-based share of counterfeit and pirated goods is between $66 billion and $100 billion." Smith, obviously, just takes that higher number (already a questionable move), and insists that's the "harm." But, as PolitiFact points out, that's not what the report actually says.
In fact, the report flat out states that it "has not attempted to estimate business losses associated with counterfeiting and piracy." So to pretend that's what the report says is, well, lying.
PolitiFact checks in with a number of experts -- including someone from the Chamber of Commerce who produced the report -- who admits that it's simply not true to say that $100 billion is the cost to the economy. Add everything up, and PolitiFact says that Smith is being anything but truthful in his claims:
Smith’s statement draws on a high-end estimate also based on flawed assumptions for the U.S. "consumption-based share of counterfeit and pirated goods" in 2008. The cited $100 billion figure doesn’t reflect the costs to the economy, contrary to Smith’s claim; the 2011 study did not assess such costs, which are understandably slippery.
Maybe there is no solid estimate of the cost to the economy. Smith’s CNN.com statement rates False.
Unfortunately, there still doesn't appear to be any punishment for trying to pass a really bad bill by using misleading stats, other than public ridicule.