Michael Carroll, from American University Washington College of Law, is talking about “Copyright and Digital Preservation: The Role of Open Licenses.” (Michael is on the board of Creative Commons.)

Michael begins with a comparison to environmentalism: Stewardship of valuable resources, and long-term planning. There are cognitive challenges, and issues in providing institutional incentives. (He recommends sucking in as much data as possible, and worrying about adding the metadata later, perhaps through crowdsourcing.)

Michael notes that copyright used to be an opt-in and opt-out system; you had to register, and deposit a copy. Then you had to publish with a ©; anything published before 1989 that doesn’t have the © is in the public domain. You had to renew after 28 years, and the majority of copyrights (60%) were not renewed. We therefore had a growing public domain.

The court in Golan upheld Congress’ right to restore copyright for works published outside the US. This puts the public domain at risk, he says. He also points to the Hathi case in which they’ve been sued for decisions they made about orphan works. There is a dangerous argument being made there that if archiving occurs within the library space, fair use goes away. The legal environment is thus unstable.

Now that copyright is automatic and lasts for 70 years after the author’s death, managing the rights in order to preserve the content is fraught with difficulty.

He reminds us that making a copy to preserve the work is unlikely to have market harm to the copyright owner, and thus ought to be legal under fair use, Michael says. “You ought to have a bias toward believing you have a Fair Use right to preserve things.”

He asks: “Can the preservation community organize itself to be the voice of tomorrow’s users on issues of copyright policy and copyright estate planning?” For orphan works, copyright term shortening, exceptions to DRM rules, good practices open licensing in the long term…

And he asks: How can you get the FBs and Googles et al. to support long-term preservation? Michael suggests marking things that already in the public domain as being in the public domain. Otherwise, the public domain is invisible. And think about “springing” licenses, e.g. an open license that only goes into effect after a set time or under a particular circumstance.

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The United States has scolded North Korea for staging some Disney shows without securing permission.

North Koreans are stunted and blind from malnutrition. North Korea has hundreds of thousands of people in death camps, including the parents and children of those who violated some bullshit law. North Korea makes repressive police states look good. And the US is scolding North Korea for violating copyright? OMFG.

I so want Cory Doctorow to write a book about how World War III was caused by North Korea’s violating of The Disney corporation’s “intellectual property rights.”

BTW, What would be a good title for this? Mouse Troopers? Kim Jong Mouse? The Pirates of North Korea?

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Aaron Shaw has a very interesting post on what sure looks like contradictory instructions from the White House about whether we’re free to remix photos that have been released under a maximally permissive U.S. Government license. Aaron checked in with a Berkman mailing list where two theories are floated: It’s due to a PR reflex, or it’s an attempt to impose a contractual limitation on the work. There have been lots of other attempts to impose such limitations on reuse, so that “august” works don’t end up being repurposed by hate groups and pornographers; I don’t know if such limitations have any legal bite.

Dan Jones places himself clearly on the side of remixing. Here’s the White House original:

And here’s Dan’s gentle remix:

Hey look out Mr. President! A supposedly unauthorized derivative work is headed right toward you!! (alert: @aaronshaw) twitter.com/blanket/status…

— Daniel Dennis Jones (@blanket) June 4, 2012

Bring it, Holder! :)

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Michael Geist (@mgeist), a Canadian hero, is giving at talk at Mesh.

When SOPA was introduced, it seemed likely to pass. Bipartistan love fest. But then the Internet fought back, from the Free Bieber campaign to online petitions. The number one source of info about SOPA was not the NYT or the Washington Post but a TechDirt blog post. (As an aside, someone launched a take down notice of this blog post, so it didn’t even appear in he Google search engine for a month.) The Reddit community was very active. E.g., when GoDaddy was listed as a supporter of SOPA, Reddit started a campaign to transfer domains from there. GoDaddy changed its mind. The big moment was when Wikipedia blacked out its English-language home page. That page was accessed 162M times that day — a striking ability to raise awareness. Other sites blacked out as well. The effect was dramatic: Within a day Congressional support swung.

For months people have been trying to figure out the “SOPA Story.” How did the number one legislative effort from the number one lobby go down in flames?

In Canada we can go back to Sam Bulte. The rise of groups lobbying for rights. The rise of social networks. The use of social media by rights-favoring politicians. So, in a sense, SOPA is nothing new here in Canada.

Blackouts aren’t new either: 1996 “computer decency act” protest. NewZealand’s protest. Italian-language Wikipedia blacked out last year.

So, in some ways the SOPA Story was nothing new. What’s new is what’s happening after SOPA…the enabling coming to people who think they now can truly affect what happens online. E.g., ACTA protests in Europe. Polish MPs donning Guy Fawkes masks. The dominoes have started to fall against ACTA. Now Neelie Kroes has said that ACTA is all but dead.

Likewise, the Research Works Act tried to scale back access to publicly-funded research. The Net fought back, withdrawing support from Elsevier, the key lobbyist for the RWA. Elsevier has withdrawn support for RWA and there is a petition now to go the other way. [SIGN THE PETITION]

In Canada, Proecting Children from Internet Predators Act — a 100-age bill that contains the word “children” only in its title. The Internet fought back. E.g., TellVic. It has been withdrawn, although temporarily.

The Net is spreading word. E.g., Kony 2012 spread around the world. There’s debate about whether it has had any effect, but the UN from people on the ground is that it has made a difference. Likewise, Trayvon Martin’s story was told through social media. Or, now, the Quebec student initiatives that started with just a few people but has grown because of social media.

LEssons: Don’t underestimate the power of social media to bring prople together to have a voice on issues. Second, SOPA happened only 18 months. We’re seeing a dramatic shift. The full consequences have not yet played out.

The third lesson is pessimistic. If this is the year that the Internet fought back, the battle may have been won but the fight continues. E.g., CETA, Trans Pacific Partnership (copyright tyranny), etc. There are reasons for optimism, but we have a long struggle ahead.
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Q: How long are we going to have to keep fighting our governments? When do we stop having to argue that social interests take priority over business interests?

A: E.g., this week public pressure worked on an act that had been given to the telcos for prior consultation. E.g., look at how the copyright bill has changed: changes to fair dealing, cap on statutory damages, consumer exceptions, etc. None of that was there originally. More politicians get it. But the content industries are powerful. The Internet is becoming an increasingly powerful voice.

Q: ICANN works on a multistakeholder model and has a limited mandate about setting policy. Some want to relegate that authority to the UN that runs it as a think tank. Which way is better?

A: The ITU has been pushing for governance space for then years. At ICANN some stakeholders count more than others. If the UN does it, repressive countries get the keys to the Net. I don’t see the ITU play happening.

Q: With SOPA there was a lot of groupthink. It lacked subtlety and nuance.

A: We’ve had 30 years of lobbying by rights holders with a total lack of nuance: “It’s theft. It’s piracy. Shut it down.” Not reflective of what’s actually happening. So, yes, some are slackivists just clicking on a Like button. But they are more informed than the general populace on these issues. I did a talk for 8th grade students, and almost all of them had heard of SOPA and Kony, and most knew more about Kony than they knew before March of this year.

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Neelie Kroes is becoming one of the open Internet’s most influential supporters.

Kroes is Vice President of the European Commission and is responsible for its “digital agenda.” At the Forum d’Avignon I was at (see here and here) she was just about the only person in a positon of power — economic or regulatory — to suggest that the Internet is actually a good thing for culture, and that we need new ways to think about copyright and distribution. Yesterday she gave a speech at the World Wide Web Conference in Lyon in which she called for new thinking to support an open Internet. Most importantly, she explicitly recognized that openness is indeed the property from which the rest of the Net’s value springs.

That a leader of the EC responsible for the “digital agenda” understands this shouldn’t be news. But it is. She even cites Yochai Benkler. Go Neelie!

Her talk begins by nailing its main point:

The best thing about the Internet is that it is open. Indeed it’s built on the idea that every device can talk to every other, using a common, open language. That’s what explains its seemingly endless growth.

Exactly right! Thank you, I’ll be here all week, drive safe, and God bless.

She goes on to explain the many benefits openness brings: “…choice and competition; innovation and opportunity; freedom and democratic accountability.” “Look at what we could do if we opened up our public sectors and put their data online.” She touts open standards. She points to political benefits: “And just look at what openness can do for freedom of speech. The Internet gives a voice to the powerless, and holds the powerful to account.”

Then she turns to the factors that impede openness:

Sometimes the problem is ancient, pre-digital rules that we need to cut back or make more flexible. Other times, openness actually flows from strengthening regulation.

She goes on to say that sometimes it’s about changing a “mindset,” not changing the rules. She says that we need an environment were different models are available and can compete. For example, some people want open discussions and some want moderated forums. We should have all types so people can choose. Likewise, we should have many different business models. People who want to be compensated monetarily for their deserve to be, although many are happy to give away what they’ve created. She says:

Look at the complicating licensing systems for copyrighted material here in Europe. These guarantee that Europeans miss out on great content, they discourage business innovation, and they fail to serve the creative people in whose name they were established.

Woohoo!

After nodding to the need for security and privacy, she gets down to the infrastructure level:

…open competition, brought by the EU, has delivered for Europe. It offers consumers better deals and new, tailored services; market players new opportunities; and potential investors legal certainty.

She states her firm commitment to net neutrality. She is fine with having many market choices, including for cheaper plans that provide limited bandwidth, or access designed for specialized preferences. But, she says, there must always be truly open, neutral access, and she points to the BEREC study due in May that should tell us whether in Europe truly open access is being offered to everyone as an option.

Great speech, especially from a person in her position.

So, let me tell you my one concern. Kroes’ idea of openness means that the Net ecosystem should support the option for closed systems for those who want them: It needs to support copyright and it needs to support offerings from access providers that limit access. In theory there’s nothing wrong with that. The problem comes when you try to engineer an open system to support closed options. So, even the most crazed copyright supporter (let’s just call him, oh I don’t know, “Sarkozy”) is happy to let people give away their own content if they should be nutty enough to want to do so. But to support the “equal and opposite” option of being able to sell content, Sarkozy wants to rejigger the entire system to prevent “piracy.” If you want to offer the closed option with sufficient rigor to prevent all violations, the system would need to become closed. Kroes is certainly not advocating that closure, but the piece I feel is missing from her talk is the recognition that the value of openness surpasses the value that would come from a system engineered to so scrupulously protect IP. We have to accept some degree of risk for IP in order to have the openness that brings us the values Kroes is so eloquent about.

Likewise, I have no problem with access providers offering plans with data caps or that throttle bandwidth (assuming they’re transparent about it); that does not violate my idea of net neutrality. But there are conceivable plans for “specialist user needs” (as Kroes calls them) that would be discriminatory: A plan that gives priority to the delivery of movies (for example) would give those movie bits priority over the non-movie bits that other users of the Net care about. Personally, I think the best protection for the open Internet is structural separation: access providers sell you access — including tiered services — but are not allowed to sell either content or services that discriminate among bits. I don’t know where Kroes stands on this, but again I would have preferred a clear statement about it.

But now I’m just being greedy. Neelie Kroes is an Internet champion at time when we desperately need one.

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Musician and Berkman Fellow Erin McKeown has written a wonderful post expressing her ambivalence about copyright.

Her heart and her brain are on the side of copyreasonableness, and thus she reacts strongly against the insane copyright totalitarianism that has come to be taken as obvious, normal, and even righteous.

But then this happened: In 2003, she wrote and recorded Slung-Ho with some success.

In 2008, it was used in a commercial shown in the Czech Republic. Last year, a Czech singer issued this song. See it here because Sony, having its sense or irony removed in the operation that removed its heart and common sense, won’t let the video be embedded. Proof:

Let’s stipulate that it’s a rip-off: not a mash-up, not an homage, not an inspired-by. It’s a commercial rip-off intended to make money off the another’s creative work. And the song has done very well commercially.

Erin has mixed feelings, which she expresses honestly. That’s what makes her post so interesting.

And challenging.

I think our current copyright system is insanely inadequate for the new ecology, and that it has the opposite effect that its best-spirited defenders want it to have: the current copyright laws (and mindset) are impeding the greatest cultural flowering in our history, and if those copyright laws are taken to their proposed maximum, they will kill culture dead.

And yet. I write books that are copyrighted. I write them in part to make a living. If you published my book without my permission under your name, I’d be pissed off. If you then sold them at half my publisher’s price on Amazon, my publisher would sue you and I’d happily testify against you. And I wouldn’t feel like a hypocrite. Well, I would (just as Erin feels ambivalent), but I’d remind myself that in this case, that niggling fear of hypocrisy is evidence t hat I’ve fallen into the copyright totalitarians’ trap.

The trap uses the fact that the line between cultural sharing and ripping someone off is blurry. Was George Harrison really ripping off The Chiffon’s in My Sweet Lord? For me, that’s a really blurry line, but ultimately I was sorry that he lost the case, in part because the song was simpler, in part because it was so famous a reference that I thought it was a form of homage, and in part because when in doubt we should allow cultural re-mixing to avoid cultural chilling effects. But the fact that the line is blurry does not mean that all cases are blurry. And Erin’s case and my hypothetical case are to me clear instances where someone is stealing the rewards that should accrue to the creator. I don’t think Erin is being hypocritical in the least: supporting serious copyright reform does not require one to give up all copyright claims. We think otherwise because the copyright totalitarians have succeeded in making us think that the alternative to the current insanity is to have absolutely no protection for creators. But fuzzy lines are still lines. (Well, ok, maybe they’re actually areas, not lines. But that’s neither here nor there.)

If anything, Erin’s willingness to protect her works from an egregious ripoff should make her an even stronger voice in the movement to protect sharing from the current predatory copyright laws.

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Forum d’Avignon is an annual get-together in France to talk about culture, by which most of the attendees (and especially President Sarkozy who came to give a speech) mean how they can squash the Internet and retain their stranglehold on culture. A little harsh? Maybe, but not entirely unfair. I went last year, and both Jamie Boyle and I felt so oppressed by the relentless Internet Fear exhibited by the other presenters that we felt obliged to say, “You know, there are some good things about the Internet also.” We also both found a cadre of fellow travelers among the attendees and a handful of the other presenters, including many of the conference organizers. (Here’s a set of my posts from the Forum.)

The Forum today invited a set of people to respond to four questions. The first question is: “1. Does culture / creative imagination give you a reason to hope?” With the above as context, here is my response:

Of course! If not culture, then what would give us reason to hope?

There are a few elements coming together that make this an especially hopeful time…and a few elements that I take as cold water being thrown in the face of hope.

The elements of hope include: (a) the scale of content, (b) the intense inter-linking of that content, (c) the growing open access to that linked content, and (d) the new forms of collaborative sociality that are emerging that (e) value difference and disagreement.

(a) The scale means that we now have works that can matter to us in any way we can imagine, rather than relying upon centralized authorities to decide what counts. Of course, from those centralized sources we have gotten great works of art, but we have gotten far more gross, coarsening, commercial crap. (b) The fact that these elements are linked means that we can now explore ideas all the way to the ends of our curiosity. It also means we can continuously derive new meaning from this interlacing of ideas. (c) Open access – the growth of outlets that may or may not be peer-reviewed and edited, accessible to the world for free – means that our best ideas are not locked up where only the privileged can view them. (d) The availability of these works on the very same medium that enables us to form social networks around them – the fact that the Net is equally good as a means of distributing content and as a social medium is unprecedented – has spurred innovative new ways of working and being together. Some of these new social forms have tremendous power, and are tremendously engaging; we can do things together that we never before thought possible. (E) Finally, the Internet only has value insofar as it contains and embraces differences and disagreements. A culture that does so is far more robust and far less oppressive than a culture homogenized by a timid sameness – the sort of lack of adventure characteristic of mainstream media.

Against this we have old industries that benefited from the scarcity of works and the difficulty of distributing them. They view culture as the set of cultural objects, and believe that they are entitled to continue to restrict and control access to them. They say they are doing this in order to support the artists, but they in fact are pocketing most of the artists’ wages in the name of services we no longer need these industries to provide. Culture flourishes when it is open, abundant, connected, engaged, and diverse. Such a culture supports artists of every sort. The culture of hope is just such a culture.

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To quote Cory Doctorow at BoingBoing: “Stop ACTA & TPP: Tell your country’s officials: NEVER use secretive trade agreements to meddle with the Internet. Our freedoms depend on it!” ACTA (Anti-counterfeiting Trade Agreement) is a global trade agreement that’s like SOPA except that it’s secret and does not require legislative approval. TPP (Trans-Pacific Partnership Agreement) is a secret 9-country deal (including the US) that is even more restrictive than ACTA.

Today is a day of international protest. Please consider registering your concern via this form from Fight For the Future.

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(Hat tip to Chris Lydon.)

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Here’s an amazing video from StooTV that shows Raiders of the Lost Ark paired with identical shots from 30 different adventure movies made between 1919 and 1973. Yup, that’s how culture works…at least if we let it.

(via metafilter)

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