Why PROTECT IP Will Fail: Cultural Acceptance, Not Fear Of Punishment, Makes People Abide By Laws

from the you're-doing-it-wrong dept

Lawyer Ron Coleman has a post about the PROTECT IP Act, called “We’re all infringers now,” that’s worth reading. While it covers similar ground to what we’ve said before, there’s one line in there, towards the end, that is absolutely worth highlighting and repeating:

This new proposed law is a terrible way to try to solve [infringement]. Its passage would only drive the culture further yet from any respect for the rule of law as it applies to intellectual property. But if Big IP hasn?t figured out yet that it is cultural acceptance of legal norms, not fear of punishment, that makes a free society a law-abiding one — if Big IP doesn?t understand what the de facto attitude of consumers regarding copyright has already become, and where it is already going — then heck, maybe at this point the law professors and the rest of us should just let Congress already go ahead and give them enough rope.

This is the key point that many of us have been trying to drive home for years. It’s the same key point that the SSRC report made in pointing out that “enforcement” and “education” are simply not strategies that work. And that wasn’t based on theory. It was based on years and years of detailed research. And yet, to the industry and to the government there seems to be only one single tool in the box for dealing with the challenges of infringement: to scare people. But that only works if people are stupid. And we now have plenty of experience in recognizing that people don’t culturally accept the claims of the industry on this issue, and no amount of threats and punishment are likely to change that.

Filed Under: cultural acceptance, laws, protect ip, punishment

Secret Service Descends on Artist For Mildly Creepy Public Photography

from the must-be-a-slow-crime-day dept

So this is one of those interesting scenarios that really tests the boundary between what people find to be socially unacceptable behavior versus what is actually illegal under current law. Artist Kyle McDonald put a strange art project into practice when he installed what amounts to surveillance software on the public computers at an Apple store and used the images collected to create a presentation that he hoped would give us, by the facial expressions captured, insight into our relationship with the computers we use:

Image from Notcot

An interesting project that borders on creepy. But it is illegal? Apparently, the Secret Service is now involved:

On three days in June, McDonald’s program documented people staring at computers in Apple stores. Since the stores wiped their computers every night, he had to go back in and reinstall the program each day he took photos. He uploaded a collection of the photos to a Tumblr blog, and last Sunday he set up ‘an exhibition’ at the Apple stores. During the unauthorized event at the Apple stores on West 14th Street and in Soho, when people looked at an Apple store machine, they saw a picture of themselves. Then they saw photos of other people staring at computers. Amazingly, nobody made a fuss. […]

Over the course of the project, McDonald set up roughly 100 Apple store computers to call his servers every minute. That’s a lot of network traffic, and he learned that Apple monitors traffic in its stores when he received a photo from a Cupertino computer of what appeared to be an Apple technician. The technician had apparently traced the traffic to the site McDonald used to upload the program to Apple Store computers; and installed it himself.

McDonald figured that Apple had decided the program wasn’t a big deal. That was until four Secret Service men in suits woke him up on Thursday morning with a search warrant for computer fraud. They confiscated two computers, an iPod and two flash drives, and told McDonald that Apple would contact him separately.

Even more interesting than his project about how people perceive their relationship with their computer might be how people perceive the artist’s actions here. Many people seem to be up in arms, and feel quite strongly that his actions were criminal and should be punished. But what crimes did he actually commit? None of the immediately obvious arguments would appear to be viable when you consider the facts of the situation:

1. Unauthorized access to a computer (hacking): The computers he used were open to the public, so no hacking there. Some might say that his program installation exceeded his allowed access, but I don’t think customers are forced to sign any kind of agreement before using the computers, and even if they were, it is not currently the law (yet) that violating a Terms of Service agreement constitutes hacking.

2. Violation of Privacy: To argue a violation of privacy, in most places you would have first argue that the person videotaped had a reasonable expectation of privacy in the first place. Certainly, being in a public location, Kyle could have snapped pictures of those very same people with a handheld camera and, short of Apple themselves giving him the boot off the premises for annoying their customers, there would be no legal consequences to doing so. Additionally, it’s highly likely that Apple (or the mall itself) had their own cameras present for security purposes. All in all, this would appear to be a nonstarter as well.

3. Wiretapping Laws: Someone might be inclined to link this to cases we’ve seen recently where police officers charge the people videotaping them with violating state wiretapping laws. They would be forgetting, however, that wiretapping statutes are usually restricted to audio. Still pictures means no wiretapping.

Now, despite my admittedly snarky sub-heading, it’s also not clear that the Secret Service necessarily overreacted in this case. You have to realize that an investigating Apple employee found that a person had been (for several days no less!) installing a program on multiple Apple computers that called home repeatedly, presumably with information gleaned from those computers. Without knowing exactly what the program was or its intended purpose, it would be very reasonable to expect the worst. It’s not beyond the realm of possibility that some customers log into websites or otherwise do things on a public computer that a keylogger would love to pick up. Hopefully, though, when they discover the true nature of the program, they’ll realize it was all a misunderstanding and give the guy back his expensive electronics. Other legal experts seem to agree, but plenty of others are up in arms about this.

What do you think? Is what he did a crime, or merely creepy? Neither? Both? If it’s a crime, what crime? If not, should it be?

Filed Under: apple store, computers, kyle mcdonald, photographs, secret service
Companies: apple

We Need To Let Go Of The Idea That Our Creations Are Utterly Ours

from the they're-not-and-have-never-been dept

We’ve written about Kirby Ferguson’s excellent Everything Is A Remix project, and the folks over at On The Media have a nice interview with Ferguson. The whole thing is worth a read (it’s pretty short, actually), but there were two great quotes that I thought were worth highlighting. He’s asked if he’s “sympathetic” to copyright holders, and responds:

I’m sympathetic to most of them. It’s natural in our culture to want to protect what you feel you worked hard for or invested in. Unfortunately, I don’t think it’s as natural to be aware of the innumerable ways we take from our culture in order to create these things. We need to let go of the idea that our creations are utterly ours. Creating something new entitles us to some rights, but not to perpetual monopoly, which is the direction we’re headed in.

That bolded part is the key. People have a natural inclination to give themselves more credit for their own work, and diminish the contributions of everyone who came before them whose work was instrumental to their own. I definitely recognize the natural instincts there as well, but I agree with Ferguson that it’s important, culturally, to get past that.

He’s also asked where he’d like to see things go “culturally in terms of copyright and patent laws” and he answers:

I think we have to stop conceiving of remixing as a kind of theft. It’s not theft, it’s not piracy, it’s a legitimate effort to make something new. That effort deserves some respect, if not for the results, then for the intent. So I think step one is to stop treating remixing as theft and bring the penalties for unauthorized remixing back down to earth.

This can’t be said enough, even though it’s rarely said at all. I’ve explained in the past how insulting it is for people to make criticisms like “create your own!” when they see amazing creative new works built by remixing the works of those who came before. If you can’t respect amazing creations built off of others’ work as being something amazing and new, then you lead a culturally deficient life.

Filed Under: culture, ideas, kirby ferguson, remix

Shouldn't Free Mean The Same Thing Whether Followed By 'Culture' Or 'Software'?

from the principles dept

Adapted from a talk and slide show I presented at the Open Knowledge Conference in Berlin on July 1, 2011. –NP
Crossposted from ninapaley.com

Free software is a matter of the users’ freedom to run, copy, distribute, study, change and improve the software. More precisely, it means that the program’s users have the four essential freedoms:

• The freedom to run the program, for any purpose (freedom 0).
• The freedom to study how the program works, and change it to make it do what you wish (freedom 1). Access to the source code is a precondition for this.
• The freedom to redistribute copies so you can help your neighbor (freedom 2).
• The freedom to distribute copies of your modified versions to others (freedom 3). By doing this you can give the whole community a chance to benefit from your changes. Access to the source code is a precondition for this.

— The Free Software Definition

These are the Four Freedoms of Free Software. They are foundational principles, and they are exactly right. They have served and continue to serve the Free Software Movement very well. They place the user’s freedom ahead of all other concerns. Free Software is a principled movement, but Free Culture is not – at least not so far. Why?

1. The No Derivatives (-ND) Restriction

If you tinker with software, you can improve it. You can also break it or make it worse, but the Freedom to Tinker is one of the foundational 4 Freedoms of Free Software. Your software may also be used for purposes you don’t like, used by “bad people,” or even used against you; the Four Freedoms wisely counsel us to GET OVER IT.
Unfortunately, The Free Software Foundation does not extend “Freedom to Tinker” to Culture:

Cultural works released by the Free Software Foundation come with “No Derivatives” restrictions. They rationalize it here:

Works that express someone’s opinion—memoirs, editorials, and so on—serve a fundamentally different purpose than works for practical use like software and documentation. Because of this, we expect them to provide recipients with a different set of permissions (notice how users are now called "recipients," and their Freedoms are now called "permissions" –NP): just the permission to copy and distribute the work verbatim. (link)

The problem with this is that it is dead wrong. You do not know what purposes your works might serve others. You do not know how works might be found “practical” by others. To claim to understand the limits of “utility” of cultural works betrays an irrational bias toward software and against all other creative work. It is anti-Art, valuing software above the rest of culture. It says coders alone are entitled to Freedom, but everyone else can suck it. Use of -ND restrictions is an unjustifiable infringement on the freedom of others.

For example, here I have violated the Free Software Foundation’s No-Derivatives license:

The Four Freedoms of Free Culture:

1. The freedom to run, view, hear, read, play, perform, or otherwise attend to the Work;
2. The freedom to study, analyze, and dissect copies of the Work, and adapt it to your needs;
3. The freedom to redistribute copies so you can help your neighbor;
4. The freedom to distribute copies of your modified versions to others. By doing this you can give the whole community a chance to benefit from your changes.
(link)

Without permission, I’ve created a derivative work: the Four Freedoms of Free Culture. Although I violated FSF’s No-Derivatives license, they violated Freedoms # 2 and 4, so we’re even.

1. The Non-Commercial (-NC) Restriction

The Freedom to Distribute Free Software is essential to its success. It has given rise to many for-profit businesses that benefit the larger community.

Red Hat, Canonical – would the world be better if such companies were forbidden? Would Free Software benefit from a ban on those businesses?

Yet the Cultural ecosystem is stunted by the prevalence of Non-Commercial restrictions. These maintain commercial monopolies around works, and – especially for vocational artists like me – are functionally as restrictive as unmodified copyright. Yet they are widely mislabeled “Free Culture,” or even “Copyleft.”

This is a still from the mostly excellent and popular documentary RiP: A Remix Manifesto. This film is many peoples’ introduction to the term “Free Culture” and “Copyleft.” But as you can see, the Non-Commercial restriction is lumped in with actual Free license terms.

See that dollar sign with the slash in it? That means Non-Commercial restrictions, which are most definitely NOT Copyleft. (I’ve posted about Creative Commons’ branding confusion before, but it’s only gotten worse since then.)

This film is itself licensed under unFree Non-Commercial restrictions. As an artist and filmmaker, I have found confusion is rampant among my creative colleagues. Some filmmakers are beginning to think the term “Free Culture” is cool, but they still want to restrict others’ freedom and impose commercial monopolies on their works.

The book Free Culture by Lawrence Lessig its itself not Free culure, but it is widely looked up to. It sets an unfortunate and confusing example with its Non-Commercial license. It illustrates the absence of guiding principles in the Free Culture movement.

I have spoken to many artists who insist there’s “no real difference” between Non-Commercial licenses and Free alternatives. Yet these differences are well known and unacceptable in Free Software, for good reason.
Calling  Non-Commercial restrictions “Free Culture” neuters what could be an effective movement, if it only had principles.

So what do I want?

I want a PRINCIPLED Free Culture Movement.

I want Free Software people to take Culture seriously. I want a Free Culture movement guided by principles of Freedom, just as the Free Software movement is guided by principles of Freedom. I want a name I can use that means something – the phrase “Free Culture” is increasingly meaningless, as it is often applied to unFree practices, and is also the name of a famous book that is itself encumbered with Non-Commercial restrictions.

I want a Free Culture ecosystem that allows artists to make money. I want anyone to be able to accept money for their work of remixing and building on Culture – just as a trucker can accept money for driving on a road. I want money to be among the many incentives to participate in building culture. Without the freedoms to Tinker and Redistribute without restriction, there is little incentive to build on  and improve cultural works. There is little reward to help your neighbor, when you are guaranteed to lose money doing so. “Free Culture” with non-Commercial restrictions will remain a hobby for those with a surplus of time and labor, and those who only accept money from monopolists.

I want commerce without monopolies. I want people to understand the difference.

I want a Free Culture ecosystem that includes equivalents of  businesses like Red Hat and Canonical. I want cultural businesses that give back to their communities, that work with their customers instead of against them. Only if we refuse to place Non-Commercial and No-Derivatives restrictions on our works will a robust Free Culture ecosystem be able to emerge.

I want the Free Software community – those who currently best understand the Four Freedoms – to champion the rest of Culture, not just Software. I want Freedom for All.

Filed Under: free, free culture, free software, freedom

Another Fair Use Debacle: Photographer Settles Bogus Copyright Threat From Artist

from the lame dept

Last year, we wrote about the absolutely ridiculous situation in which an artist, Jack Mackie, sued a photographer, Mike Hipple, for copyright infringement. The details of the case were pretty crazy. Mackie had created a piece of public artwork with public funds, putting instructional dance steps into the pavement on a sidewalk in Seattle. Hipple did not photograph the whole thing. Instead, he took a photograph of someone standing in a couple of the footsteps, and included a few others around it. It’s hard to see how anyone could say this was not fair use. It’s transformative, and it most certainly would not hurt the market for the original artwork. The issue was that Hipple put the image up on a stock photo site for sale, and Mackie apparently believes copyright covers a hell of a lot more than it does. The other crazy thing: after receiving a takedown letter, the image came down… but Mackie still sued.

Hipple was planning to fight the lawsuit, but just like the Andy Baio/Jay Maisel situation, it appears that Hipple realized it was better to settle than to risk huge statutory damages. The statement about the settlement seems pretty clearly done with the approval of Mackie’s lawyers, and makes you wonder what else was going on behind the scenes. Tragically, unlike Baio, Hipple appears not to have received permission to relay the details of the settlement. That’s really too bad, because this is the kind of information people need to know about.

Even worse, Mackie response to the settlement has been nothing short of obnoxious, and includes some blatantly false statements about copyright law:

Artists hold copyright to their work, period. The Federal Law that states this was well vetted and argued before becoming law. This law comes with strict standards that must be met to gain copyright. I met all of these standards. My copyright is secure meaning it comes with protections and it comes with controls. Artists are the only people who get to say how images of their work will be used.

That’s simply not true. Artists are not the only people who get to say how images of their work will be used. That’s the entire point of fair use, which it appears Mackie is denying. This is another reason why these kinds of settlements, while understandable, are so tragic. They reinforce these kinds of ignorant claims from copyright holders who wish to deny fair use. Mackie continues:

I do not want my work to be part of a coffee company’s ad campaign. I do not want my work to be part of a sales pitch for condos on Broadway. I do not want my work associated with banksters… all of which I have had to deal with. I want my work to be seen as it was intended and in the setting for which it was created – Seattle’s sidewalk on Capitol Hill, Broadway. I do not want it used by whoever might think it a cool idea to appropriate the image for their current fancy.

What you want and what the law allows may be two totally different things. Look, I don’t want to have to spend time debunking your cluelessness on copyright law. But that doesn’t mean the law allows me to sue you over it. Furthermore, copyright law has nothing to do with “associations.” It doesn’t have anything to do with whether or not you like someone using your work in a certain manner. If it’s fair use, they absolutely can use the work in that way. Your own desires have nothing to do with it.

It was with glee that I took the news of Tom Petty sending cease and desist orders to Michelle Bachmann for appropriating his work without his permission.

With “glee” and some additional total ignorance about the nature of copyright law in this country… As we noted recently, Tom Petty has no legal leg to stand on here. That’s because his music is licensed out for public performance with ASCAP or BMI, and if the venues where Bachmann is playing these tunes has their ASCAP/BMI licenses in order (as they almost certainly do), he’s got nothing to stand on. That’s the way US copyright works when it comes to music performances on such licensed music. But, apparently, Mackie has no interest in actually understanding how copyright law works, but prefers his mythical version in which it’s some sort of “moral rights” that are not present in US copyright law, no matter how much Mackie dances around and pretends they are.

Between the Andy Baio situation and the Mike Hipple situation, it would be great if people started to recognize what a horrible setup copyright law’s statutory damages provisions are. They allow artists like Mackie and Maisel to shake down other artists over work that those other artists believe is fair use. The risk of a statutory damages award is simply too high, and so these artists are forced to submit, to pay, and to stifle artwork. It seems like statutory damages provisions do the exact opposite of the stated intentions of copyright law to promote the progress, doesn’t it?

Filed Under: copyright, fair use, footsteps, jack mackie, mike hipple, photograph, public art, seattle

Just Because Two Things Are Similar Doesn't Mean One 'Rips Off' The Other

from the that's-crazy dept

I was recently alerted to the fact that comic artist Kate Beaton got quite upset at a guy named Chris Bouldin, claiming that he had somehow “ripped her off” with a graphic he had created for a t-shirt.

So, let’s take a look at the “ripoff.” Here’s Kate’s drawing: And here’s Chris’s supposed ripoff: Huh? Am I missing something here? They may be similar ideas, but otherwise they’re pretty different all around. As we recently pointed out, different people come up with the same jokes all the time, and it’s not a “ripoff” at all. Even if Chris had seen Kate’s original, his work is quite different, and hardly a ripoff in any way shape or form.

Repeat it with me: You cannot own an idea.

And yet, so many people like to think they can, even when it’s a totally simplistic idea that lots of other people also likely had. And, apparently blogs are springing up to “call out” people who “ripoff” others. First, in the comments to Kate’s complaint, someone suggests submitting the story to You Thought We Wouldn’t Notice, which is a blog that tries to call out and shame cases where they believe there’s been “a blatant rip off of a creative work.” And, just as I was going through that blog and shaking my head at the sheer disingenuousness of it, Parker sent over a very similar (if much more obnoxiously named) blog, Copy©unts. That one mainly focuses on ad agencies doing things similar to what others have done.

Now, to be clear, I’ve always pointed out in the past that sometimes shaming someone for blatant copying can be much more effective than reaching for the old “copyright” claim. You only have one reputation (it’s a scarce good!), and if it goes bad, there are consequences. That’s why social pressure can be much more effective than a legal attack to deal with questionable behavior.

But, here’s the thing, these sites and efforts really seem to stretch the definition of what’s “questionable.” As seen in the very example up top, just because two people have a similar idea, that doesn’t mean that one is a “ripoff” or that the person should be shamed. Lots of people have similar ideas, and even if one person is inspired by another, taking a stab at doing something different and unique around the same theme shouldn’t be seen as a ripoff at all.

Certainly, some of the items that appear on both blogs do appear to be clear attempts to appropriate someone else’s work in questionable ways and I can see how naming and shaming them might make some sense. But a lot of them really just appear to be similar ideas, or even very different attempts to build on a good idea. Take, for example, this post, which compares a bit of artwork of a little boy crying, with an advertisement that includes a boy crying:

Again, I’m at a loss here. Yes, they’re both boys, and there’s a blue background in both images… but that’s about it. Suggesting that one is a “copy” of the other seems ridiculous.

And that’s where these things start to become so troubling for me. They seem to become less about calling out misappropriation situations, and much more about pretending that an idea can be owned. Unfortunately, efforts like these merely perpetuate the myth that you can own an idea (even if others come up with the same thing independently). And that’s really troubling.

Hell, if we’re going to go down that route, can’t we just say that one of these two blogs “ripped” off the other? After all, they seem to have the same basic idea, and the posts actually have a very familiar feel to them. So, damn it, what a ripoff! Everyone complain to one of these sites about how the other one “ripped them off!” It’ll be so meta.

Filed Under: copying, culture, ideas, ownership, ripping off

If Jay Maisel's Photograph Is Original Artwork, Then So Is The Pixelated Cover Of 'Kind Of Bloop'

from the artistic-copying dept

Okay. I’m going to say right from the top that I expect some (not all) photographers are going to read this and get very angry. I’m going to try to explain myself as carefully as possible to make my point clear, because it’s not what many people are going to jump to a conclusion about. That is, I am not saying that photography is not art. I believe that photography absolutely is art — and it’s an artform I love. At one time in my life, I spent more time in a dark room than was healthy (perhaps literally, given some of those chemicals), and even pondered pursuing photography as a career. What I am going to say, however, is that it seems like there’s a bit of a double standard when it comes to photographers, copyright and fair use on transformative and/or derivative works.

In the time I spend talking about copyright issues, it’s always seemed that it was a certain group of photographers who get much more worked up about these things than anyone else. I very much understand why this is. In many cases, photographers are self-employed, and they’ve come to believe that copyright is their sole way of making a living (I believe they’re wrong on this, but they believe it strongly). So anything that takes away from copyright protections — including such legally enshrined issues as fair use — are seen as being serious threats. Again, I think this is somewhat short-sighted and wrong, but I understand where the feelings come from.

We recently wrote about Andy Baio’s legal fight with Jay Maisel over Baio’s use of a pixelated version of Maisel’s photograph of Miles Davis that became the iconic album cover for Kind of Blue.

When I wrote that, I fully expected that many photographers would come to Maisel’s defense, even as much of the internet commentary sided (heavily) with Baio (including some from photographers). There were, of course, also some very thoughtful discussions from some photographers, who disagreed with Baio’s fair use analysis and presented reasonable explanations for why they did not believe his use would be covered as fair use. I disagree with their analysis, and think that the fair use case here is quite strong, but fair use is a funny thing and it very often comes down to the whims of the judge on the case.

However, there is one argument I’ve seen in numerous places by photographers that strikes me as either incredibly self-unaware, or just downright hypocritical. There were a few such comments on our post about it, such as this one that insisted that since you could still recognize the photo, Andy “didn’t turn it into something different.” Similarly, a photographer by the name of William Beem (and I really don’t mean to single out Mr. Beem, but to use his comments as a sample of the general argument) commented a few times on a post by Mathew Ingram about this whole affair, again arguing vehemently that there’s no fair use here and that Andy “stole” the image. For example, Beem states the following:

Andy took something that wasn?t his and he didn?t have any license or right to take it. Digital or physical, that?s theft. Your argument that Jay Maisel still has the original is true, so Andy stole a copy. It?s still not his. The image is recognizable as the original. All rights to that image belong with the copyright holder, whether original or duplicated.

Saying that all art is derivative in some way is very nebulous.

It’s this form of argument that I find incredibly hypocritical. The whole “took something that wasn’t his.” What did Baio (or, really, the guy he hired) do? He copied an image that he saw, but did so in a different and artistic way. What did Maisel do to make his photograph: he copied the scene of Miles Davis in front of him, but did so in a different and artistic way. It’s the same thing any photographer does. Part of the very process of photographing is, literally, making a copy, often without a “license” from whatever it is you’re making a copy of. Again, that doesn’t make it any less art. In fact, the reason that photographs are considered eligible for copyright protection at all (and some have questioned this) is because of the artistic choices in making a photograph: how it was framed, lighting, etc. Yet, in the pixelated image, again, there are similar artistic choices made: how to pixelate the image. How to still make it look good, but within the limitations of the pixelated artform, etc.

Some have, incorrectly, assumed that you could just apply a filter to the original image and get out the pixelated version that Baio used. This is false. You can see, pretty obviously, just from looking at the tie, that the guy who made the pixelated image didn’t just Photoshop it, but found a way to recreate the general feel of the original image, but within the artform of pixelated images. You could just as easily argue that Maisel found a way to recreate the general feel of Miles Davis performing, but within the artform of photography. If you don’t understand this, you can see if you look at an actual attempt to run a Photoshop filter on Maisel’s original, the result is quite different. Furthermore, as David Liu pointed out, a scaled down version of an image is quite different than a hand-pixelated image, and in the case of Kind of Bloop, the image was hand-pixelated, using all sorts of artistic choices by the artist.

What I have trouble with is the argument that this is different than photography. In both cases, you have artists who took something that was out there — something they did not create — and then turned it into an artform. In Maisel’s case, it was taking the real, physical 3D Miles Davis performing, and turning it into a photograph. In Baio’s case, it was taking the Maisel photo, and turning it into an 8-bit image in homage to the original.

Photography, by its very nature, starts with simply copying what’s on the other side of the lens. Yes, there is more to it on top of that. There are all sorts of artistic choices to be made about how to copy. How to frame, how to focus, how to light, how to shade, how to dodge, how to print, etc. That’s what makes it an artform. But it’s incredibly hypocritical to then decry others similarly making a copy, with similar artistic choices, by somehow claiming that that version of copying is “theft.” So, photographers, please don’t be so quick to decry other artforms that also start with copying, but which also then apply additional artistic choices. If Jay Maisel’s photograph of Miles Davis is unique and original artwork (and I believe it is), then so is the cover of Andy Baio’s album.

Filed Under: 8-bit, andy baio, art, copying, copyright, culture, jay maisel, photography, pixelation

Author Can't Quote A Single Line Of A Song In His Book Without Paying Up

from the fair-use-is-dead dept

We’ve pointed out in the past just how ridiculous it is that publishers are incredibly risk averse when it comes to quoting anything in a book without permission. Even though brief quotes should undoubtedly be fair use, most publishers won’t allow even single sentence quotes without permission just to avoid the risk of getting sued.

Author Fletcher Wortmann alerts us to the ridiculous situation he faced with a memoir he has that’s coming out next year, where the publisher freaked out about the inclusion of two song lyrics as intros to various chapters:

But thankfully my editors requested only two changes that I objected to, both involving song lyrics I?d used as introductions to two of the chapters. Apparently, although neither of these was more than a line (and neither was more than 10% of the work, so my borrowing should have been permitted under fair use), I could not quote without risking a lawsuit. Apparently I could offer to pay the rightsholders in advance (anywhere from a hundred to a thousand dollars), but this was not recommended, because it would invite further legal scrutiny of the work which we were already slipping though the gates under the cover of darkness. If I refused to pay I would be sued, and if I agreed to pay I would be sued by someone else.

This is stupid. This is stupid in a staggering number of ways that I will now elaborate for you.

First, this is all in spite of the fact that, in the glorious age of the internet, I can find the not only the complete unauthorized lyrics to both of these songs but also pirated music concert videos, mp3s, and Youtube music vids with spliced-together footage of Troy and Abed from Community exchanging sexy glances. If people want your song, there isn?t a thing you or I can do to prevent them from taking it and doing what they like with it. Denying an author access to lyrics does nothing to change this.

And aside from its fundamental uselessness, this legal barricade me as an absurd perversion of the intent of copyright. It?s generally accepted that the purpose of copyright is to prevent bootlegs from being produced, so that no one buys an illegal copy instead of the original and cheats the artist out of a buck. That?s an admirable and just notion. But in what insane parallel universe is someone going to skip buying a song because I quote part of the chorus? Who is going to read a memoir, glance over a dozen words, and decide they?ve somehow illicitly derived the essence of a rock song they no longer need to purchase? Does my quoting lyrics in some way decrease the value of the music?

Fer chrissakes, if anything, I?m recommending your song. I?m telling my reader that I loved this music, that it meant so much to me that I used it to encapsulate a chapter of my life. If it was Diet Coke or something instead of music, you?d pay me to mention your product.

One very minor point: there is no “10% rule” as many people seem to assume when it comes to copyright and fair use. I agree that this almost certainly was fair use, but for many reasons having nothing to do with 10% usage. For example, the key point that Fletcher makes later: that the impact on the market for the work is unlikely to be harmed here is a key pillar in showing fair use.

Either way, this is yet another example of copyright law being used to stifle a form of creativity and speech rather than encourage it.

Filed Under: copyright, fair use, fletcher worthmann, quotes

Kind Of Blue: Using Copyright To Make Hobby Artist Pay Up

from the chilling-effects dept

A whole bunch of folks have been sending over Andy Baio’s tragic story of having to pay $32,500 to photographer Jay Maisel for his use of an image, which he still believes was fair use. There are all sorts of interesting things to consider in this story, so let’s break it down.

Background:

Hopefully you already know who Andy Baio is. An all around intriguing guy who runs the awesome blog waxy.org, does fantastic web development, and has been involved with a few really interesting projects/companies, including Kickstarter and Upcoming.org (which he sold to Yahoo a while back). I don’t know Andy at all — have never met or spoken to him — but he’s one of the folks out there that I’ve had a ton of respect for for many, many years.

One of the really fun projects that Andy did was to record an album called Kind of Bloop — an 8-bit tribute to the classic Miles Davis album, Kind of Blue. Andy raised some money (via Kickstarter, of course), got together some “chiptune” musicians (who make 8-bit music, a la classic video games), and recorded and released the album. And, yes, he was careful to do all of the proper licensing for the music. He also gave any of the money that came in to the musicians, not taking a cut for himself.

The Problem:

All of that sounds good… and he was pretty surprised by the eventual mess he got into. For the cover, the obvious choice was to do an 8-bit rendering of the original Davis cover, and he, Andy, got a friend to put it together. You can see the original and the version for this album below:

It turns out that the original photo of Davis for the album was done by famed photographer Jay Maisel and Maisel believed the Kind of Bloop image violated his copyright. Andy argued, persuasively, that his use of the image was fair use. Maisel’s lawyers disagreed, and threatened him with:

“either statutory damages up to $150,000 for each infringement at the jury’s discretion and reasonable attorneys fees or actual damages and all profits attributed to the unlicensed use of his photograph, and $25,000 for Digital Millennium Copyright Act (DMCA) violations.”

Fair Use:

Andy makes a strong case for why this is fair use. If you focus on two key factors out of the four tests for fair use, I believe he has a very compelling case, but that won’t surprise many people. Baio points out that his version is transformative:

From the beginning, Kind of Bloop was a creative experiment. I was drawn to the contradiction between the textured, subdued emotion in Kind of Blue and the cold, mechanical tones of retro videogame music. The challenge was to see whether chiptune artists could create something highly improvisational, warm, and beautiful from the limited palette of 1980s game consoles. (I think we succeeded.)

Similarly, the purpose of the album art was to engage both artist and viewer in the same exercise ? can NES-style pixel art capture the artistic essence of the original album cover, with a fraction of the resolution and color depth of an analog photograph?

It reinforced the artistic themes of the project, to convey the feel of an entire album reimagined through an 8-bit lens. Far from being a copy, the cover art comments on it and uses the photo in new ways to send a new message.

This kind of transformation is the foundation of fair use. In a 2006 verdict, the court found artist Jeff Koons’ use of a fashion photo “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”

I don’t think there’s any question that Kind of Bloop’s cover illustration does the same thing. Maisel disagreed.

Separately, he also notes that on the other key test, the impact on the market, this is likely fair use: “It’s obvious the illustration isn’t a market substitute for the original: it’s a low-resolution artistic rendering in the style of 8-bit computer graphics that is, at best, of interest to a few computer enthusiasts.”

I actually think that he also could have argued that this isn’t even a fair use question, since many of the elements of the original photo that are copyrightable are actually removed in the 8-bit version, leading to some questions as to whether or not there’s even a violation of the copyright at all.

The Outcome: Cheaper to Settle than to Fight:

As is often the case when someone is threatened with the potential of having to pay huge fines after an expensive, lengthy and exhausting trial, it’s easier (and sometimes cheaper) to just settle. And that’s what Andy did. He agreed to pay $32,500 to Maisel, taking what had been a fun side-project, for which he earned no money, and turning it into something quite costly and astoundingly frustrating. Andy is quite clear that in settling he did not (and will not) admit to any guilt, as he still believes that his use was legal:

After seven months of legal wrangling, we reached a settlement. Last September, I paid Maisel a sum of $32,500 and I’m unable to use the artwork again. (On the plus side, if you have a copy, it’s now a collector’s item!) I’m not exactly thrilled with this outcome, but I’m relieved it’s over.

But this is important: the fact that I settled is not an admission of guilt. My lawyers and I firmly believe that the pixel art is “fair use” and Maisel and his counsel firmly disagree. I settled for one reason: this was the least expensive option available.

At the heart of this settlement is a debate that’s been going on for decades, playing out between artists and copyright holders in and out of the courts. In particular, I think this settlement raises some interesting issues about the state of copyright for anyone involved in digital reinterpretations of copyrighted works.

The real shame here is that it’s the ridiculously high statutory rates that caused this settlement to occur in the first place. If the potential liability weren’t so high, I wouldn’t be surprised to see Andy be willing to fight for what he believed was right. But with such a threat hanging over him, it’s understandable why he settled. It also explains why so many people abuse copyright law this way. Since it’s so often cheaper to settle… many people do, even if they believe they haven’t infringed on anyone’s copyrights.

Chilling Effects:

If you can’t see how this is an example of the massive chilling effects of copyright law today, you’re not paying very close attention. Andy had a very strong argument to explain how what he did was legal… and still agreed to pay $32,500 for a fun little side project he was making no money on. He was chilled into paying up, because the fight is just too expensive. And the chilling effects are nefarious and ongoing:

It breaks my heart that a project I did for fun, on the side, and out of pure love and dedication to the source material ended up costing me so much ? emotionally and financially. For me, the chilling effect is palpably real. I’ve felt irrationally skittish about publishing almost anything since this happened. But the right to discuss the case publicly was one concession I demanded, and I felt obligated to use it. I wish more people did the same ? maybe we wouldn’t all feel so alone.

Create some artwork out of love and appreciation… end up getting threatened with a massive lawsuit and having to pay up, even though you believe what you did was perfectly legal. That’s not what copyright law is supposed to be about.

The Backlash:

After Andy published his story, lots of folks picked up on it, and most of the commentary focused on Jay Maisel. There were articles and tweets calling him all sorts of names. Maisel ended up shutting down his Facebook page entirely. Andy, for his part, has urged people not to attack Maisel, and has made it clear that people shouldn’t take this out on him. However, I think it’s not at all surprising that this was the end result. We’ve seen this before. If you’re seen as a bully, abusing copyright law for things it’s not intended for, you shouldn’t be surprised if there’s backlash. I certainly don’t condone the harassment of Maisel, but I can’t see how anyone (least of all Maisel) should be surprised that it happened.

It does kind of make you wonder if the $32,500 was “worth it” to have your reputation dragged through the mud.

There were all sorts of smarter ways that Maisel could have handled this situation, but he chose to go the legal route.

Find the Line:

As a parting shot, Andy posted the following graphic, and asked where would people draw the line? What’s fair use? What’s infringing? A better question might be why should that even be a point of discussion at all? We have a case where something unique, new and creative was done… and was then stifled for no good reason. Nothing in what Andy did took away from Maisel’s work at all. He suffered no losses. This is a shame of epic proportions, and yet another in a long list of examples of how copyright is used to censor, rather than to promote progress. The whole thing should make us all feel kind of blue…

Filed Under: 8-bit, andy baio, chilling effects, copyright, fair use, jay maisel, miles davis