Can someone help me understand how Louis Menand sets up his Oct. 20 piece on copyright in the New Yorker? Menand’s a great writer, and the piece has gone through the NYer’s famous editorial process, so I am confident that it’s my fault that I am stuck staring at a couple of paragraphs not understanding what he’s talking about. I expect to be slapping my forehead momentarily.

Let me tell you why this matters to me, beyond my high expectations for New Yorker writing. When the New Yorker takes the Internet as its subject, it tends to be in the Traditional Resistant camp — although I acknowledge that this may well be just my observer’s bias. Their writers acknowledge the importance of the Net and nod at the good it does, but then with some frequency focus on the negative side, or the over-inflated side. Of course that’s fine. They’ve got some great writers. And Menand is not taking that side in this article. But if Menand’s description of how the Web works is as wildly wrong as it seems to me to be, then it raises some special concerns. If the New Yorker can’t get these basics right, then we have further to go than I’d thought. (Keep in mind that I am not all confident in how I’m reading this passage in the Menand article.)

So, Menand begins by imagining that an anthology called “Most Thoughtful Essays” includes his essay without his permission. Then he asks us to…

…suppose that a Web site, awesomestuff.com, ran an item that said something like “This piece on copyright is a great read!” with a hyperlink on the word “piece” to my article’s page on The New Yorker’s Web site. You wouldn’t think this was banditry at all. You would find it unexceptionable.

…

Some courts have questioned the use of links that import content from another Web site without changing the URL, a practice known as “framing.” But it’s hard to see much difference. Either way, when you’re reading a linked page, you may still be “at” awesomestuff.com, as clicking the back button on your browser can instantly confirm. Effectively, awesomestuff.com has stolen content from newyorker.com, just as the compiler of “Most Thoughtful Essays” stole content from me. The folks at awesomestuff.com and their V. C. backers are attracting traffic to their Web site, with its many banner ads for awesome stuff, using material created by other people.

When he says “it’s hard to see much difference,” the two cases seem to be awesomestuff.com including a hyperlink “to my article’s page on the NYer’s Web site” and awesomestuff.com embedding the entire article at their site in an iframe. But in the first case (clicking on the normal link) you are taken to NewYorker.com and are not on awesomestuff.com.

Even more confusing, when you’re now at NewYorker.com, clicking the back button will confirm that you were in fact not at awesometuff.com, for the page will change from NewYorker.com to awesomestuff.com. And, if awesomestuff.com has embedded Menand’s article via an iframe, clicking on the back button will take you to whatever page you were at before awesomestuff, thus proving nothing.

Finally, since the point of all this is to show us how linking is equivalent to printing Menand’s article in a paper anthology without his permission, it’s weird that Menand leaves out what is by far the most common case that might be equivalent: when a page neither links to another page nor uses an iframe to embed its content, but simply copies and pastes from another site.

So, as far as I can tell, the most coherent way of taking the words that Menand has written — and he’s a precise writer — contradicts the most basic experience of the Web: clicking on a link and going to a new page.

So where am I going wrong in reading him???

By the way, the rest of the article provides a good general overview of the copyright question, and is sympathetic to the reformist sensibility, although it is surprisingly primer-like for a NYer article. IMO, natch.

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A year ago, Harold Feld posted one of the most powerful ways of framing our excessive zeal for copyright that I have ever read. I was welling up even before he brought Aaron Swartz into the context.

Harold’s post is within a standard Jewish genre: the d’var Torah, an explanation of a point in the portion of the Torah being read that week. As is expected of the genre, he draws upon a long, self-reflective history of interpretation. I urge you to read it because of the light it sheds on our culture of copyright, but it’s also worth noticing the form of the discussion.

The content: In the Jewish tradition, Sodom’s sin wasn’t sexual but rather an excessive possessiveness leading to a fanatical unwillingness to share. Harold cites from a collection of traditional commentary, The Ethics of Our Fathers:

“There are four types of moral character. One who says: ‘what is mine is mine and what is yours is yours.’ This is an average person. Some say it is the Way of Sodom. The one who says: ‘what is mine is yours and what is yours is mine,’ is ignorant of the world. ‘What is mine is yours and what is yours is yours’ is the righteous. ‘What is mine is mine and what is yours is mine’ is the wicked.”

In a PowerPoint, it’d be a 2×2 chart. Harold’s point will be that the ‘what is mine is mine and what is yours is yours.’ of the average person becomes wicked when enforced without compassion or flexibility. Harold evokes the traditional Jewish examples of Sodom’s wickedness and compares them to what’s become our dominant “average” assumptions about how copyright ought to work.

I am purposefully not explaining any further. Read Harold’s piece.

The form: I find the space of explanation within which this d’var Torah — and most others that I’ve heard — operates to be fascinating. At the heart of Harold’s essay is a text accepted by believers as having been given by God, yet the explanation is accomplished by reference to a history of human interpretations that disagree with one another, with guidance by a set of values (e.g., sharing is good) that persevere in a community thanks to that community’s insistent adherence to its tradition. The result is that an agnostic atheist like me (I’m only pretty sure there is no God) can find truth and wisdom in the interpretation of a text I take as being ungrounded in a divine act.

But forget all that. Read Harold’s post, bubbelah.

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Not since the NFL sent a takedown notification to Wendy Seltzer because she posted the NFL’s copyright notice has a takedown notice been so unknowing. Wendy is a law professor and the head of the Chilling Effects archive of takedown notifications. The new Notification of Unknowingness went to Lawrence Lessig for using a short clip to make a point in a video of a talk about the overreach of copyright:

A co-founder of the nonprofit Creative Commons and author of numerous books on law and technology, Lessig has played a pivotal role in shaping the debate about copyright in the digital age. In June 2010, Lessig delivered a lecture titled “Open” at a Creative Commons conference in South Korea that included several short clips of amateur dance videos set to the song “Lisztomania” by the French band Phoenix. The lecture, which was later uploaded to YouTube, used the clips to highlight emerging styles of cultural communication on the Internet. [source: eff]

When YouTube forwarded the DMCA takedown notice to him, Lessig did what so few people do: he counter-notified that his use of the clip was an instance of Fair Use. [More details here.] Fair Use is an exemption to copyright that lets reasonable extracts be used in cases just like Larry’s video. [Better explanation here.] The copyright holder then said they were going to sue Lessig for infringement. Lessig took down the clip and is now taking the issue to court with the help of the Electronic Frontier Foundation. (Did you remember to donate to the EFF?) Their aim is to get the judge to issue a declarative judgment that the the clip is covered by Fair Use, and to get damages as specified in DMCA clause 512f:

(f) Misrepresentations. Any person who knowingly materially misrepresents under this section
(1) that material or activity is infringing, or
(2) that material or activity was removed or disabled by mistake or misidentification,

shall be liable for any damages, including costs and attorneys’ fees, incurred by the alleged infringer, by any copyright owner or copyright owner’s authorized licensee, or by a service provider, who is injured by such misrepresentation, as the result of the service provider relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing, or in replacing the removed material or ceasing to disable access to it.

Since what exactly constitutes Fair Use is determined by courts, a declarative judgment would help clarify that uses like Larry’s are definitely ok, and the awarding of damages would help discourage organizations from issuing automated takedowns that give no heed to the circumstances in which the content is being used. (But I am not a lawyer, so do not believe me.)

The final irony: The name of the copyright holder is Liberation Music.

Go, Larry! Go EFF! And thank you!

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Derek Khanna is giving a Berkman talk on trying to connect the dots so that policy-makers “get it.” “How do we even frame discussions about the economy and innovation?” Copyright law hasn’t been re-assessed in at least 15 yrs, he says. He begins with his bakcstory: He’s from Mass. Worked for Romney and Scott Brown. (Derek wrote the copyright reform report for the Republican Study Group.)

Rule 1: “Being right is just part of the battle.” Rule 2: “It’s less important what you say…It’s most important who says it.” Rule 3: “Control the framing of the issue.” E.g., we [copyright reformers] frame copyright very differently than does Capitol Hill.

Take SOPA. He quotes Adam Green saying it’s not a matter of right vs. wrong but old vs. new. Staffers had been warning about SOPA, but suddenly the public engaged. The result was astounding: Co-sponsors became opponents of the bill. Derek says it wasn’t Google that killed SOPA. It was the 3 million people reaching out to Congress that killed it. “People like Elizabeth Stark, Alexis Ohanian [reddit] and Aaron Swartz.” The RIAA and MPAA like to frame it as having lost to Google rather than having lost to the American people. (He points to a Mario Savio speech that begins “There’s a time when the operation of the machine becomes so odious…”) SOPA remains very much on Congress’ mind, he says.

The framing was “perfect”: SOPA will censor the Internet and inhibit innovation.

Most conversations about copyright are framed as: Piracy is rampant, costing American jobs. Content is a crucial export, “the only thing produced in US any more.” Copyright is thus good, but more copyright is better.

Derek set out to reframe it in his “Three Myths of Copyright.” At a panel he asked “Who thinks terrorism is bad? Who thinks the TSA is only the way to protect us?” Likewise, is copyright the only way to protect content when it makes 23M Americans into felons? He points to the difference between the original copyright law and the current one. To conservatives, it can be framed as looking like a wild divergence from the original intent.

The “Three Myths” memo went out and was supported by conservatives until 24 hours later when it was pulled. A few weeks later, Derek was fired. He’s continuing but he thinks that when you’re on the outside, you have to fight small, strategic battles.

Idea + Movement + Effort = Legislation

A few weeks ago the head of the copyright office endorsed many of the reforms in “Three Myths,” updating copyright for the digital generation. The day before the content industry made the old argument in Roll Call. The other side isn’t countering. The content lobby knows that Roll Call is read by Congress. We need similar expertise.

How do we start?

1. Don’t wait for the next SOPA. They’re going to be much subtler in how they do it next time. Sites are still being taken down, e.g., Megaupload. Also funding mechanisms were cut off for ThePiratesBay. Also, Google was forced to take down links to torrents, etc. So, why would they come up with another SOPA? Instead they’re using international treaties to codify the DMCA forever, using stock language that gets replicated in treaties. These treaties only require Senate approval, or through executive actions. Therefore, we have to be more activist.

2. We have to analyze existing law.

3. We need support from both the left and the right

4. We need to focus on areas of common interest where we can form a collective whole

5. Asymmetrical warfare: Where are we strong and they’re weak? Where have they overplayed their hand? E.g., if you want to take on copyright law, that’s not asymmetric because there’s a strong argument on the other side.

“We lack the institutional capacity to quickly intervene in the political process in the way the content industry has. We therefore need to be smarter and more tactical.” We should start with smaller battles. We should avoid the narrative of “fighting the Man,” that companies are evil, etc. That won’t win over a party that sees itself as a party of business. “Instead, foster a David v. Goliath narrative.” That media like that narrative.

We should not talk about piracy. And even if the DMCA needs to be replaced, that’s a non-starter on Capital Hill.

Derek’s first campaign was on cellphone unlocking, after the Librarian of Copyright said it was now illegal (i.e., ending the DMCA exemption) to enable your phone to be used on a different carrier. Unlocking would increase competition among carriers. Derek wrote an article for The Atlantic that pointed out that the technology for the blind also has to be exempted every three years, a clear example of how the system is broken. Derek expected this issue to be hard. It didn’t get any mainstream media attention. It has a $32M lobbying effort on the other side. “That’s a problem on Capitol Hill: We don’t have a lobby for the future.” IT requires making hypothetical arguments.

But as the argument went on, examples emerged. E.g., Republic Wireless offers very cheap connectivity, but it depends on users bringing in unlocked phones.

Derek started a White House petition that got 114,000 signatures, the largest at the time. In part this worked because of people’s prior experience with SOPA. There were positive arguments on Left and Right. Left: It’s a matter of fairness. Right: Property rights. Derek added to this the value of innovation as a cross-party value.

After the petition, the FCC announced an investigation, and the White House came out in favor of unlocking. Before that, Derek had urged Congressfolks to come out in favor of it, if only because he was worried that after Obama came out in favor of repeal, the right would take the other side. But shortly after Obama endorsed, some conservatives came out in favor. Bills were introduced in both chambers.

Unfortunately, we have no way of mobilizing the 114,000 people who signed the petition; the names couldn’t be captured.

Why was it successful?

1. They made it simple. (Also with SOPA: SOPA = censorship)

2. Leveraged social media

3. Utilized video

4. Created a diverse coalition

5. Gained mainstream credibility

6. Channeled energies into a measurable demonstration of support

7. Kept Congress in the loop

8. Solid media narrative

9. Avoided talking about piracy. Instead: competition, innovation, and property rights.

10. It was unfair

11. Everyone has a phone…

Derek presented this at a conservative org and got called a Marxist. Fox Business also: “You’re just against contracts.” “When you take up an issue, you have to know where your third rails are.” Response: The contract is between you and your carrier; the feds shouldn’t be arresting people for violating a contract.

Why is it important? It’s the first time Congress has questioned the DMCA. We might get a hearing on it. Congress is unaware of the implications of the DMCA. It also helped Congress realize that international treaties are being used as a backdoor for these restrictions. It may affect the Trans-Pacific Partnership treaty. And it helped identify allies.

Bottom line: “A free society shouldn’t have to petition its govt every 3 years to allow access to tech.” It’s akin to free speech, he says.

On the CFAA: “The statute is terrible.” There’s consensus about this. “But no one has written about in Weekly Standard or Politico.” It hasn’t reached Congress’ attention. Most members of Congress think that the sky is falling when it comes to cybersecurity. Every time a cybersec bill comes up, Congress has experts telling them that we are in deep peril. “Essentially the arguments for CFAA are that we need to reduce the DoJ’s discretion.” You have to defeat that training. Meet with Rogers or McCain or the other cyber-hawks and convince them that the CFAA needs to be reformed, that we can target hacking with a more narrowly focused bill.

Q&A

Q: Can we try to drive a wedge in the opposition?

A: Yes. The RIAA’s and MPAA’s policies don’t foster innovation in their own industry. Over a 100 wireless carriers supported us on unlocking.

Q: You said that people who “get” tech are on the side of openness, etc. That optimistically suggests that if we educate people, they’ll take more common sense positions on tech.

A: Not entirely. Congress listens to people they trust, who are the RIAA, MPAA…

Q: …But even if Congressfolks fully understood tech, would the funds they get from the content industry still sway them?

A: Yes, some understand and still oppose us. But the ones who understand generally agree with us. The story is more complex: The MPAA/RIAA are very liberal, but the right still tend toward copyright protection.

Q: Why is the content industry so powerful, given the size of Google, etc.

A: AT&T and Verizon are both in the top ten of lobbying companies: $32M. Google spends about $6M on lobbying. “No tech company had a DC presence until Microsoft” when it was about to be broken up. Also, as the tech companies invest heavily to survive, say, patent law, why would you favor wholesale patent law change? Also, when the RIAA/MPAA sue kids, the money goes back into lobbying, not to the artists. They’re self-funding. But the tech industry has to justify why they’re spending money on lobbying.

Q: In Pakistan, piracy is rampant. Doesn’t that hurt innovation?

A: Piracy is real. But, those generally weren’t loss sales. The obsession with piracy is the problem.

Q: How about the role of public interest groups?

A: I’m a big fan of Public Knowledge and EFF, etc. But they need supplementing with more activist movements.

Q: If we focus on small victories, will people think we’re not doing enough? Will you have to keep winning bigger and bigger?

A: You can exist at a level for a while, if you’re strategic about it. Eventually you have to move on to bigger battles.

Q: How about the importance of multistake partnerships?

A: You need as many allies as you can. E.g., I’m interested in orphan works: in copyright but you can’t find the copyright holders. Our interests are in line with the RIAA.

A: Are we in a moment like the environmental movement before it formed under a single banner?

Q: I’m not an expert on the environmental movement. There are lots of lessons to be learned from them.

Q: Is there a schism in the conservatism over copyright reform?

A: I haven’t seen much of a schism. The best argument I’ve heard is the natural rights one: copyright ought to exist forever. But that’s not the system we’ve adopted. Our founding fathers rejected it. I’d like to build a cross-party coalition, but that’s a longtime goal.

Q: Did you get pushback on using the WH petition mechanism?

A: I got some from privacy folks.

Q: When we win a battle, the other side comes up with something more drastic. E.g., we won a first sale argument, but the right may be preparing something much more drastic. How can we avoid that?

A: I’m not sure they’re going to try to reverse the first sale doctrine, but we need to have our eyes open.

Q: What should we do right now?

A: We’d like to start to bring together the CISPA coalition.

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The Digital Public Library of America‘s policy on metadata was discussed during the recent board of directors call, and the DPLA is, in my opinion, getting it exactly and admirably right. (See Infodocket for links.) The metadata that the DPLA aggregates will be openly available and in the public domain. But just so there won’t be any doubt or confusion, the policy begins by saying that it does not believe that most metadata is subject to copyright in the first place. Then, to make sure, it adds:

To the extent that the DPLA’s own contributions to selecting and arranging such metadata may be protected by copyright, the DPLA dedicates such contributions to the public domain pursuant to a CC0 license.

And then, clearly and plainly:

Given the purposes of the policy and the copyright status of the metadata, and pursuant to the DPLA’s terms of service, the DPLA ‘s users are free to harvest, collect, modify, and/or otherwise use any metadata contained in the DPLA.

Nice!

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Brad Sucks’ latest album, Guess Who’s a Mess, is dark, funny, witty, creatively produced, CreativeCommonsed, and totally home-made by a one-man band. You ought to buy it.

I asked Brad for a pointer to the lyrics, and he instead sent me an unpolished version. I’m just now getting around to posting them. Here they are.

So download the album, or get it on iTunes or Spotify, give it a listen, and let Brad know that you love him.

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The letters of Lord Alfred Russel Wallace, co-discoverer of the theory of evolution by natural selection, are now online. As the Alfred Russel Wallace Correspondence Project explains, the collection consists of 4,000 letters gathered from about 100 different institutions, with about half in the British Natural History Museum and British Library.

The Correspondence Project has, admirably, been releasing the scans without waiting for transcription; more faster is better! Predictably annoyingly, the letters, written by a man who died ten years before the Perpetual Copyright date of 1923, seem to be (but are they?) carefully obstructed by copyright: The Natural History Museum, which houses the collection, asserts copyright over “data held in the Wallace Letters Online database (including letter summaries)” [pdf — oddly unreadable in Mac Preview]. Beyond the summaries, exactly what data is this referring to? Not sure. Don’t know.

But that isn’t the full story anyway, for the NHM sends us to the Wallace Fund for more information about the copyright. That page tells us that the unpublished letters are copyrighted until 2039, with this very helpful footnote:

Unless the work was published with the permission of his Literary Estate before 1 August 1989, in which case the work will be in copyright for 70 years after Wallace’s death, unless he died more than 20 years before the work’s publication, in which case copyright would expire 50 years after publication.

Oh.

Eventually it gets to some good news:

Authors wishing to publish such works would ordinarily need to obtain permission from the copyright holder before doing so. However, on July 31st 2011, in an attempt to facilitate the scholarly study of ARW’s writings, the co-executors of ARW’s Literary Estate agreed to allow third parties to publish ARW’s copyright works non-commercially without first having to ask the Literary Estate for permission, under the terms and conditions of Creative Commons license “Attribution-NonCommercial-ShareAlike 3.0 Unported”

So, are the letters published on the NHM site actually available under a Creative Commons non-commercial license? The Wallace Fund that aggregated them seems to think so. The NHM that published them maybe thinks not.

Because copyright is just so magical.

TWO HOURS LATER: Please see the first comment, from George Beccaloni, Director of the Wallace Correspondence Project. Thanks, George.

He explains that the transcribed text is available under a Creative Commons non-commercial license, but the digitized images are not. Plus some further complications, such as the content of the database being under copyright, although it is not clear from the site what data that is.

Since the aim of CC is to make it easier for people to re-use material, may I suggest (in the friendliest of fashions) that this be prominently clarified on the sites themselves?

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CNN asked me to write 600-800 words about Aaron Swartz. I demurred at first, suggested some other people who knew Aaron better — I met Aaron when he was young, stayed in touch, had the occasional meal with him, admired him and loved him more than he knew — and agreed when CNN came back to me.

I have trepidation about what I wrote, which CNN has now posted. I don’t like the implication that we can sum up any life so glibly. But I also wanted to do a little to nudge attention from Aaron solely as a champion of open information. I also decided not to assess the blame that is so well deserved, because that’s well discussed already.

A handful of better sources and expressions:

• Anything Larry Lessig has written or said, including this.

• Cory Doctorow’s immediate post, breaking the news and our hearts

• Matthew Stoller’s important and deeply-felt reminder of Aaron’s political breadth and depth

• Quinn Norton’s vivid remembrance of Aaron’s happiness and more

• Dave Winer’s astute pointing to curiosity as a defining motive for Aaron

• danah boyd’s hhonest expression of loss, and her fear that Aaron will be taken merely as an example

• The unbearably honest statement from his parents and soulmate

There’s so much more, because no life can be told.

Here is Aaron in his own words, in a presentation at the Freedom to Connect conference last May.

And here is Larry Lessig on Democracy Now:

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… Swartz must be compared to two other eccentric geniuses, Steve Jobs and Steve Wozniak, who, in the nineteen-seventies, committed crimes similar to, but more economically damaging than, Swartz’s. Those two men hacked A.T. & T.’s telephone system to make free long-distance calls, and actually sold the illegal devices (blue boxes) to make cash. Their mentor, John Draper, did go to jail for a few months (where he wrote one of the world’s first word processors), but Jobs and Wozniak were never prosecuted. Instead, they got bored of phreaking and built a computer. The great ones almost always operate at the edge.

That was then. In our age, armed with laws passed in the nineteen-eighties and meant for serious criminals, the federal prosecutor Carmen Ortiz approved a felony indictment that originally demanded up to thirty-five years in prison. Worse still, her legal authority to take down Swartz was shaky. Just last year, the Ninth Circuit Court of Appeals threw out a similar prosecution. Chief Judge Alex Kozinski, a prominent conservative, refused to read the law in a way that would make a criminal of “everyone who uses a computer in violation of computer use restrictions—which may well include everyone who uses a computer.” Ortiz and her lawyers relied on that reading to target one of our best and brightest.

It’s one thing to stretch the law to stop a criminal syndicate or terrorist organization. It’s quite another when prosecuting a reckless young man. The prosecutors forgot that, as public officials, their job isn’t to try and win at all costs but to use the awesome power of criminal law to protect the public from actual harm. Ortiz has not commented on the case. But, had she been in charge when Jobs and Wozniak were breaking the laws, we might never have had Apple computers. It was at this moment that our legal system and our society utterly failed.

— Tim Wu

Full article in the New Yorker.

My friend David Isenberg cautions us not to think of this as Aaron encountering one bad apple in the system. Rather, says David, “The legal system was working just like it always works…The case of US v Swartz was business as usual.”

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Paul Sanders on a mailing list wrote the following:

And I can assure anyone who is feeling a bit hot under the collar about the music industry in general, that the thing they fear in corporate HQs and trade associations far far more than the digital consumer and bittorrent etc., is an emancipated artist.

Here’s to a world full of ’em!

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