One of the biggest hits of the past two years has been Dua Lipa’s Levitating — this catchy disco-inflected tune didn’t hit #1 in the US but has set quite a few records for Billboard chart longevity (e.g. 41 weeks in the top 10). Lipa, her label, and her co-writers were recently hit with a lawsuit1
by a band called Artikal Sound System alleging that Levitating was ripped off from their song, Live Your Life. At first glance, Artikal Sound System seems to have a point — take a listen to Levitating and then to Live Your Life.
But! As Adam Neely explains in this video, if you listen to it with an expert ear and with the history of music in mind, their case doesn’t seem so ironclad. For starters, Rosa Parks by Outkast (1998) and Blame It on the Boogie from The Jacksons (1978) contain very similar rhythms.
And just today brings news of a second lawsuit: “songwriters L. Russell Brown and Sandy Linzer allege that Lipa ‘duplicate[d]’ the ‘signature’ opening melody for ‘Levitating’ from their 1979 song ‘Wiggle and a Giggle All Night’ and 1980 song ‘Don Diablo’, performed by Cory Daye and Miguel Bosé respectively.”↩
It’s called reversion, and it doesn’t happen often, because it’s not automatic; there are legal hurdles to jump through to file copyright termination notices, meaning you need money, help, and strong motivation to make it happen. And in some famous cases (see virtually every famous superhero ever), if you’ve created something as a work for hire, copyright termination alone isn’t always going to get it done. But it does happen, and it’s interesting to see (and to measure, at scale) in just what cases it comes together.
That’s the subject of a new academic study by Joshua Yuvaraj, Rebecca Giblin, Daniel Russo-Batterham, and Genevieve Grant. The authors also created a complete dataset of copyright termination notices from 1978 to 2020 for other researchers to parse; their initial findings are summarized here by Cory Doctorow.
Few creators have managed to revert but the ones that have are fascinating. Stephen King is a leading reverter, as are George RR Martin, Nora Roberts and David Eddings. - successful authors who are able to claim back their works and seek new deals based on their track records.
A single YA author - Francine Pascal_ - accounts for nearly all the YA reversions, thanks to her reclaiming of all 305 of her Sweet Valley High novels (in kids’ books, Ann Martin attains another high-water mark for reverting the Baby-Sitters Club books).
But the most fascinating entry is funk titan George Clinton, who pursued his former manager Nene Montes for years, claiming he’d forged Clinton’s signature and defrauded him to steal the rights to most of Clinton’s prodigious and profitable catalog.
Thanks to reversion, Clinton was able to finally settle all question of title without expensive litigation - he simply reverted 1,413 works.
Other notable filers of termination notices include Philadelphia-based musical partners Gamble and Huff and Hall and Oates, and the heirs of Superman co-creator Jerry Siegel and playwright August Wilson. Another somewhat ironic entry is Pat Boone, who famously re-recorded many, many popular Black artists’ songs to cash in on segregated radio; Boone submitted 643 copyright termination notices for songs under his assigned copyright.
As the authors point out, there are limitations in the data set. Filing a copyright termination notice doesn’t mean that copyright automatically reverts back to the author; an author or their heirs might use the termination notice to successfully renegotiate their deal with the current licensee, or there may have been mistakes in their legal filings, or some other mishap.
Strangely, however, the authors note that while there are periodic spikes in copyright termination notice activity (for example, immediately after the statute was first passed in the 1970s), there’s currently a dip in termination requests under both sections of the copyright law that allows rights to be reverted. And the authors do not precisely whether it’s a periodic flux, or a long-term trend, or why either might be the case.
In this recent TED Talk, lawyer, musician, and technologist Damien Riehl talks about the rapidly diminishing number of melodies available to songwriters under the current system of copyright. In order to help songwriters avoid these melodic legal landmines (some of which are documented here), Riehl and his pal Noah Rubin designed and wrote a program to record every possible 8-note, 12-beat melody and released the results — all 68+ billion melodies, 2.6 terabytes of data — into the public domain.
It’s interesting that the litigious nature of the music business and the finite number of melodies (and the even smaller number of pleasing melodies) has turned an artistic endeavor into a land-grab — whoever gets to a certain melody first owns it forever (or at least for dozens of years). (via @tedgioia)
This video catalogs every borrowed sample from Paul’s Boutique by the Beastie Boys, from the soundtrack to Car Wash to the Sugarhill Gang to the Eagles to the Ramones to the Beatles. They play the original first and then what they did with it on the album.
Somehow this video only has 31,000 views?! You can also listen to this remix of Paul’s Boutique on Soundcloud, which combines the source tracks with Beastie Boys vocals and some audio commentary.
Hip-hop sampling began as a live technique, with DJs working turntables at parties and clubs. Whether it was strictly legal or not, nobody was going to try to sue anyone about it. As the genre’s popularity grew, people naturally started recording performances and releasing them as albums. Early sampling tended to come fast and furious. In the ’80s, short clips of existing recordings were the order of the day, often — as in the case of the Beastie Boys — lots of them, layered and shuffled in a clearly creative way. As hip-hop pushed further into the mainstream, however, the stakes got bigger and so did the samples.
1990 saw the release of both M.C. Hammer’s “U Can’t Touch This” and Vanilla Ice’s “Ice, Ice, Baby.” Not only did both songs sample, they each relied heavily on one particular sample — the baselines from Rick James’ “Superfreak” and Queen and David Bowie’s “Under Pressure” — for their main hook. Both hits resulted in legal controversy.
In a recent issue of Why is this interesting?, Noah Brier collects a number of perspectives on whether (and by whom) a work created by an artificial intelligence can be copyrighted.
But as I dug in a much bigger question emerged: Can you actually copyright work produced by AI? Traditionally, the law has been that only work created by people can receive copyright. You might remember the monkey selfie copyright claim from a few years back. In that case, a photographer gave his camera to a monkey who then snapped a selfie. The photographer then tried to claim ownership and PETA sued him to try to claim it back for the monkey. In the end, the photograph was judged to be in the public domain, since copyright requires human involvement. Machines, like monkeys, can’t own work, but clearly something made with the help of a human still qualifies for copyright. The question, then, is where do we draw the line?
This week, music fans were rejoicing. The legendary hip-hop group De La Soul’s catalog was finally coming to music streaming services. Three Feet High and Rising on Spotify!
“Because Tommy Boy has not had the opportunity to sit down together with De La Soul and finalize our negotiations — something we’ve wanted to do for months — we have decided to postpone the digital release of their catalog scheduled for tomorrow,” the statement reads. “We know fans are eager to hear these amazing recordings and we are hopeful for a quick resolution.”
A rep for the group did not immediately respond to Variety’s requests for comment.
While a rep for Tommy Boy stressed to Variety that sampling was not a central issue of the disagreement and “negotiating points are still to be finalized,” the group’s catalog with the label has been plagued by legal issues over uncleared samples since shortly after the release of their first album, “3 Feet High and Rising,” some 30 years ago. That album — widely considered to be one of the best and most influential hip-hop albums ever released — and several other titles from the group never have been legally available on streaming services, as the catalog has moved from Tommy Boy to Warner Bros. and back again without the sampling issues being resolved.
“It’s a victory,” Pos, of De La Soul, tells Billboard. “It’s great that people who supported and understood what we mean to the culture, whether it’s someone who’s so dear and close to us like a Q-Tip, or someone who could admire the moves we’ve made creatively, but we ain’t necessarily been in the room with each other nothing but maybe three times together, like a Jay-Z. You can have people just feel like, ‘Culturally, I support and understand where they are coming from.’” …
“He [Tommy Boy’s Tom Silverman] can legally do what he wants, but the issues that I raised [was that] in all that you’re doing with what you’re able to do, did you clear it? Did you clear those samples? When he got the catalog back, is it cleared? What he said on the phone was, ‘If anything comes up, we will deal with it the way we’ve dealt with it in the past.’ And what I know that to be is that if a lawsuit comes up, we’re gonna settle because we’re in the wrong. I say we because we do suffer from that.”
As De La Soul’s Mase told Variety, the band has never earned money from its recorded catalog because of the levies the original copyright owners have placed on the band’s samples. “Let’s be straight up: We don’t really financially benefit — there’s so many infractions around this whole thing that we’ll probably never see no money from it or any project that has these infractions.”
It’s a shame, because De La Soul created some of the most exciting—and original music of the late 1980s and early 1990s. Let’s hope that the band and label can come to an agreement, the samples can be properly cleared, and we can hear these albums on whatever service we want (with the band finally getting their fair share) soon.
Popular Mechanics has a quick look at 15 Patents That Changed the World, including the maglev train from back in 1967, the 3d printer, a “bionic eye” retinal prosthesis from 1968, GPS, CRISPR-Cas9, and graphene. Fun to read through but I’m including it here because it was found through Chris Anderson who had this comment:
One thing that allowed the modern drone industry to innovate so fast is that most of the core patents were filed by aerospace companies back in the mid-twentieth century and have since expired. The quadcopter patent, for example, was filed in 1962 https://t.co/rY0zLzqAAE
Earlier today I tweeted this Boing Boing post about the upcoming US public domain infusion, the first since 1998. In the case of both patents and copyright, it’s important to remember the innovation and creativity their release provides, not just the original work or invention it represents.
The Gloucestershire-based photographer now claims that the decision is jeopardising his income as anyone can take the image and publish it for free, without having to pay him a royalty. He complained to Wikimedia that he owned the copyright of the image, but a recent transparency report from the group, which details all the removal requests it has received, reveals that editors decided that the monkey itself actually owned the copyright because it was the one that pressed the shutter button.
But shouldn’t Wikipedia take it down anyway because they don’t have the monkey’s permission to release the photo into the public domain? (I mean, probably not…monkeys don’t have any rights under the law, yes?) (via @capndesign)
Update: A previous version of this post stated that Wikipedia said that the monkey held the copyright. They said no such thing…that was my poor paraphrase. In the US at least, monkeys obviously can’t hold copyrights. From the Compendium II of Copyright Office Practices, section 202.02(b) states:
The term “authorship” implies that, for a work to be copyrightable, it must owe its origin to a human being. Materials produced solely by nature, by plants, or by animals are not copyrightable.
Interesting phrase, “owe its origin to”…perhaps Slater has a point. (via @stvnrlly)
The US Copyright Office, in a 1,222-page report discussing federal copyright law, said that a “photograph taken by a monkey” is unprotected intellectual property.
“The Office will not register works produced by nature, animals, or plants. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings, although the Office may register a work where the application or the deposit copy state that the work was inspired by a divine spirit,” said the draft report, “Compendium of US Copyright Office Practices, Third Edition.”
Update: PETA has filed a lawsuit on behalf of the monkey photographer, seeking to award the copyright and any sales proceeds to the monkey. Alt headline: PETA Thinks Famous Monkey Photographer Is Too Stupid To Manage Own Money.
Sometime earlier this year, Scott Kildall and Brian Sera used archival photos of the hard-to-find set, turned them into 3D models of the chess pieces, and made a pattern for 3D printing your own set:
Something tells me Duchamp would have loved this whole thing.
Update: Welllllll, Duchamp may have loved this, but his estate definitely did not. Duchamp’s estate sent Kildall and Sera a cease and desist letter, forcing them to remove the 3D models from Thingiverse. Which, the irony! So, Kildall and Sera, riffing on Duchamp’s mustachioed Mona Lisa, have created a set of six 3D-printed chess pieces with mustaches modeled on the Duchamp set. Fantastic.
The song “Space Oddity” is under copyright protection in most countries, and the rights to it belong to Mr Bowie. But compulsory-licensing rights in many nations mean that any composition that has been released to the public (free or commercially) as an audio recording may be recorded again and sold by others for a statutorily defined fee, although it must be substantively the same music and lyrics as the original. But with the ISS circling the globe, which jurisdiction was Commander Hadfield in when he recorded the song and video? Moreover, compulsory-licensing rights for covers of existing songs do not include permission for broadcast or video distribution. Commander Hadfield’s song was loaded onto YouTube, which delivers video on demand to users in many countries around the world. The first time the video was streamed in each country constituted publication in that country, and with it the potential for copyright infringement under local laws. Commander Hadfield could have made matters even more complicated by broadcasting live as he sang to an assembled audience of fellow astronauts for an onboard public performance while floating from segment to segment of the ISS.
We live in a world where sending a guitar into space is trivial while ironing out rights agreements is the tough part. (via waxy)
The death on Friday of Adam Yauch, best known as the Beastie Boys’ MCA, surely sent many of us back to old albums we may not have heard for a while. And anyone who threw on Paul’s Boutique, the Boys’ best album, was surely struck by the sense that they don’t make records like that anymore. That’s not just because tastes and styles have changed. The entire album is based on lavish sampling of other recordings. “Shake Your Rump,” which leads Slate’s #MCATracks playlist, features samples of 14 songs by 12 separate artists. In all, the album is thought to have as many as 300 total samples. The sampling gave Paul’s Boutique a sound that remains almost as distinctive today as it was when it was released in 1989.
Perhaps the main reason-and certainly the saddest reason-that it still sounds distinctive is that a rapidly shifting legal and economic landscape made it essentially impossible to repeat.
We were a bit surprised to receive a notice on Monday from Caters News, telling us they represented David Slater with respect to the syndication of those photos, and asking us to take down the photos. The notice was not a DMCA takedown notice. It doesn’t even mention copyright, though that seems like the only basis upon which they would make such a takedown request. And, to be clear, it was not in the least bit threatening. There is no legal language and no threat at all in the note.
When asked for clarification by Techdirt, a representative from Caters replied:
Michael, regardless of the issue of who does and doesn’t own the copyright — it is 100% clear that the copyright owner is not yourself. You have blatantly ‘lifted’ these photographs from somewhere — I presume the Daily Mail online. On the presumption that you do not like to encourage copyright theft (regardless of who owns it) then please remove the photographs.
Onionesque. Please someone interview the monkey about his/her views on this.
Technically, in most cases, whoever makes the actual work gets the copyright. That is, if you hand your camera to a stranger to take your photo, technically that stranger holds the copyright on the photo, though no one ever enforces this.
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.
Unfortunately, Baio’s post does nothing to dissuade me that Maisel is a joyless putz. Seeing this kind of behavior from large clueless companies is almost expected but from a a fellow creative artist? Inexcusable. Surely some reasonable arrangement could have been made without visiting enormous stress and a $30K+ bill onto a man with a young family. Disgusting.
Steve Jobs praised an iPad RSS reader called Pulse in his keynote yesterday. Then the NY Times complained about the app and Apple pulled it from the store later in the day.
The Pulse News Reader app, makes commercial use of the NYTimes.com and Boston.com RSS feeds, in violation of their Terms of Use*. Thus, the use of our content is unlicensed. The app also frames the NYTimes.com and Boston.com websites in violation of their respective Terms of Use.
Four things:
1. Why is there a comma after “The Pulse News Reader app” in the laywer’s note to Apple?
2. The very same NY Times ran a positive review of the very same Pulse a few days ago. Doh!
3. Seems like all the Pulse guys need to do is unbundle the NY Times feeds and open the actual nytimes.com pages into a generic browser window and all is good.
4. I wonder why the Times et al. haven’t complained about Instapaper yet. It might not technically infringe on copyright, but magazines and newspapers can’t be too happy about an app that strips out all the advertising from their articles…as much as we would all be sad to see it go.
In defending itself against a copyright lawsuit brought by Viacom, YouTube notes that the media company has been surreptitiously uploading its copyrighted content to YouTube for years.
For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately “roughed up” the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko’s to upload clips from computers that couldn’t be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt “very strongly” that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.
I heard that the staff of the Daily Show and Colbert Report upload the shows to YouTube as soon as they can after the shows air and then the next day, lawyers from Comedy Central hit YouTube with takedown requests for the uploaded shows.
Under such conditions, the tide of amateurism cannot but recede until there will be left only the mechanical device and the professional executant. Singing will no longer be a fine accomplishment; vocal exercises so important a factor in the curriculum of physical culture will be out of vogue. Then what of the national throat? Will it not weaken? What of the national chest? Will it not shrink?
Amazon’s mp3 store has another one of those deals today where you can get hours and hours of classical musics for pennies a song: 99 Bach masterpieces (8+ hours!) for $2.99. Even though Bach’s works preceded copyright protection, this is a good example of how our culture benefits from sensible copyright term limits: eight hours of some of the finest music ever composed for about the price of a Happy Meal. More good classical music mp3 deals here.
Does this mean that nearly all of Twitter’s content is in the public domain? Or can you copyright a collection of tweets…the entire output of one person, for instance?
Brock sent along a short reply to my question, reprinted here with his kind permission:
This is information and not advice: It’s possible (and likely) that the majority of individual Tweets are in the public domain. But copyright protection may extend to a compilation of otherwise non-protectable Tweets. The question of whether ‘you’ can do that as opposed to the author of those Tweets is tricky and would depend on how it’s done. If the compilation is authored in such a way as to suggest a false designation of origin (i.e., that the person compiling the Tweets actually authored them), you might run into false designation claims. Also, as a practical matter, you may still get sued and forced to spend tens of thousands of dollars to defend a lawsuit you might otherwise win - if you can afford to get to trial. In the end, if you are a Tweet author and want to protect your Tweets, then you should probably compile them and seek protection with the US Copyright Office. If that works out for you, you’re set. If the Copyright Office denies your application for registration, you have your answer.
I admit, I think a protectable Tweet exists in theory. I have read hundreds if not thousands of Tweets and have yet to read one I believe would be protectable, but the possibility exists. The question is not: Are Tweets Copyrightable. The question is: Is This Tweet Copyrightable. The copyrightability of Tweets is not dependent on the fact that they are Tweets. Rather, it’s dependent on the analysis of the Tweet in question. The all-encompassing response that all Tweets are either protected or not protected is misguided. The real response is that it depends. However, when you analyze most Tweets, they would never individually pass copyright muster.
Does this mean that nearly all of Twitter’s content is in the public domain? Or can you copyright a collection of tweets…the entire output of one person, for instance? Let’s say I want to publish Tweatise: The Wit and Wisdom of Merlin Mann, an unabridged book of Merlin’s Twitter stream…can I do that?
Sita is a goddess separated from her beloved Lord and husband Rama. Nina is an animator whose husband moves to India, then dumps her by e-mail. Three hilarious shadow puppets narrate both ancient tragedy and modern comedy in this beautifully animated interpretation of the Indian epic Ramayana. Set to the 1920’s jazz vocals of Annette Hanshaw, Sita Sings the Blues earns its tagline as “The Greatest Break-Up Story Ever Told.”
I put on the DVD and start watching. I am enchanted. I am swept away. I am smiling from one end of the film to the other. It is astonishingly original. It brings together four entirely separate elements and combines them into a great whimsical chord. You might think my attention would flag while watching An animated version of the epic Indian tale of Ramayana set to the 1920’s jazz vocals of Annette Hanshaw. Quite the opposite. It quickens.
Why let all of your ideas die with you? Current Copyright law prevents anyone from building upon your creativity for 70 years after your death. Live on in collaboration with others. Make an intellectual property donation. By donating your IP into the public domain you will “promote the progress of science and useful arts” (U.S. Constitution). Ensure that your creativity will live on after you are gone, make a donation today.
Includes a downloadable template for a sticker that you can affix to the back of your driver’s license.
Attributor, a copyright monitoring service, launched today. It’s currently available only to enterprise subscribers, but they’ll be launching a service for small publishers and bloggers next year. Of special note is the (purported) use to which publishers want to put the service—link credits:
Attributor splits up the world between sites that exhibit extensive copying (more than half of an article, for instance, and just some copying. It shows which sites have linked back to the original source and which have not. “Often, that’s all they want—a link,” says Brock. Below is a typical dashboard view of what a customer would see. In this case, the content from People.com is being analyzed (based on its feed). Of the 265,000 matches, 103,000 don’t link back to People.com.)
I can’t think of anyone better suited to answering questions about the state of culture in the Age of the Blog than Cory Doctorow. Whether it’s running Boing Boing, writing (and giving away—while still profiting from—his novels and short-story collections), or speaking out for our electronic rights, Cory is a ubiquitous presence on every vector of this discussion. I caught up with him by phone at his London flat.
JT: Let’s talk about the ‘Pixel-Stained Technopeasantry’ discussion in the sci-fi community this summer. I thought it was sort of ironic that someone like Hendrix—a sci-fi writer— would resign over the use of technology—
CD: He didn’t resign: He just didn’t run again.
JT: —Or just didn’t run again. OK, so that was just his parting shot? There was another line he used, too—what was it? Webscabs. What’s the deal with giving away your stuff for free?
CD: There are three reasons why it makes sense to give away books online. The first is that publishing has always been in this kind of churn and flux—who gets published, how they get paid, what the economic structure is of the publishers, where the publishers are, all of that stuff has changed all of the time. And it’s just hubris that makes us think that this particular change—the computer change—is the one that’s going to destroy publishing and that it must be prevented at all costs. We’ll adapt. If we need to adapt, we’ll adapt. And today, the way that we adapt is by giving away e-books and selling p-books.
So that’s the economic reason. But then there is the artistic reason: we live in a century in which copying is only going to get easier. It’s the 21st century, there’s not going to be a year in which it’s harder to copy than this year; there’s not going to be a day in which it’s harder to copy than this day; from now on. Right? If copying gets harder, it’s because of a nuclear holocaust. There’s nothing else that’s going to make copying harder from now on. And so, if your business model and your aesthetic effect in your literature and your work is intended not to be copied, you’re fundamentally not making art for the 21st century. It might be quaint, it might be interesting, but it’s not particularly contemporary to produce art that demands these constraints from a bygone era. You might as well be writing 15-hour Ring Cycle knock-offs and hoping that they’ll be performed at the local opera. I mean, yes, there’s a tiny market for that, but it’s hardly what you’d call contemporary art.
So that’s the artistic reason. Finally, there’s the ethical reason. And the ethical reason is that the alternative is that we chide, criminalize, sue, damn our readers for doing what readers have always done, which is sharing books they love—only now they’re doing it electronically. You know, there’s no solution that arises from telling people to stop using computers in the way that computers were intended to be used. They’re copying machines. So telling the audience for art, telling 70 million American file-sharers that they’re all crooks, and none of them have the right to due process, none of them have the right to privacy, we need to wire-tap all of them, we need to shut down their network connections without notice in order to preserve the anti-copying business model: that’s a deeply unethical position. It puts us in a world in which we are criminalizing average people for participating in their culture.
JT: What was it that the philosopher J. L. Austin said? “Things are getting meta and meta all the time.” Almost of necessity, because if you don’t have meta-level discussions and filters (and we have MetaFilter), bloggers like kottke and boing boing—in academia I’m going to Arts & Letters Daily and Crooked Timber—you’d never be able to fire through all the cool things to which we now have access. By making use of a small number of editorial nodes, we can cover lot more of the network. But it’s more interesting than simple efficiencies, isn’t it? I interviewed Douglas Wolk earlier this week and he said something pretty profound: “Each blogger is a gravitational center, great or small, but there’s no sun they’re all orbiting around.” Yochai Benkler, too, with his idea of the bow-tie model, talks about how, because of shallow paths and the small world effects of the Internet, this idea that there are these multiple centers of gravity mean it’s not like there’s one giant “culture” that’s omnipresent, along which there’s this Power Law distribution that drowns everything out. Instead, there are tons of these smaller gravitational centers, each with their own orbits; each with their own authors, interests, inclinations to reach outward and bring other things in… it pretty well vanquishes certain notions of centrality, the cry that says, “Holy shit: I’m not in The New York Times! Nobody in our culture will ever find me!” That’s nonsense. You can have an audience of millions, maybe none of whom have ever read The New York Times.
CD: You just recapitulated in reverse the panic of Andrew Keen. What Andrew Keen has got his pants in such a ferocious knot about is that we are losing our “culture.” Basically, if you unpack his arguments they come down to this: He thinks The New York Times did a pretty good job of figuring out what was good and he doesn’t like the idea that they’re not the only way of doing it and that it’s getting harder to figure out who to listen to and media literacy is getting harder and that means bad stuff is going to become important and that wouldn’t have happened if only the wise, bearded, white-robed figures at The New York Times had been allowed to continue to dominate our culture. That’s really where he’s coming from at the end of the day.
JT: In fairness to the Times, they not only pay well, but they do a good job of reaching out—to their guest-bloggers, for instance. The Guardian does, too.
CD: Yes, they do and they do. But as a writer, actually having all these different venues in which my work can appear has actually turned out to be better and not worse. So for one thing, the free online distribution of my work has created new opportunities—it’s like dandelion seeds blowing around that find all the cracks in the sidewalk that I never would have been able to find just by walking around and planting them. One of my favorite reprints was one I sold to a magazine who’d found the text in the word-salad at the bottom of a spam e-mail. So even the spammers are helping me.
JT: That’s really funny. In another interview I did, the one with Ted Genoways, he said something that I hope a lot of people pick up on, because I think it’s incredibly important to this discussion. What Ted said was that, after doing their big South America in the 21st Century issue—for which they got a lot of good press: authors on NPR, segments on PBS—they got a small amount of traffic from mainstream media. But then Jason posted a small link and they got 25,000 visits that week from kottke.org.
CD: I think the most important thing about that anecdote isn’t the amount of influence that kottke.org wields, although that’s an interesting component of it, but how cheap it is to become kottke.org—to maintain Kottke Enterprises, Ltd. It’s so cheap it’s the rounding error in the coffee budget of the smallest department of one of the main publishing conglomerates. That’s all it costs Jason to run his website.
Boing Boing, and I’m not just talking cash costs—but also organizational costs, the Coasian costs, of doing this are so low. Boing Boing, for the first five years, we never had a physical meeting. We had never all been in the same room until we had been in business for five years. We had 25 phone calls in the entire history of the business.
So, a lot of bloggers can wield tremendous influence, and become disruptive forces in the media marketplace, very cheaply. If you have someone who’s enthusiastic and compelling and that person is very close to the purchase decision—you know, it probably drops off with the square of the distance, right? So you can have a person like Oprah, who’s so compelling that the fact that she’s extremely distant from a book she’s pitching is not wildly important, because she sends such a strong signal that even though it attenuates quickly that signal is still very strong. Who was the President who popularized the James Bond novels? Kennedy? He mentioned it and he turned James Bond into a phenomenon. The corollary of this is that a weak signal heard close in is also an extremely powerful way to sell books. So, we’ve historically relied on strong signals at great distances, but the other way to do this is weak signals close in. And we have new ways to get close: with things like Amazon links, the signals don’t have to be very strong at all.
This is also an essential component of the value of the free electronic copy. The microcosm for that is “here’s a free electronic copy… talk about it in IRC with two other people.” And that gets you the same thing. You don’t even have to send out a physical review copy & those people, if they like your book, will start sending the book to their friends.
JT: It all sounds good—but let me go on record as, in the broadest range of things, a middling copyright defender. But I loved Tim Wu’s piece in Slate. Did you read that? On how selective enforcement of copyright shows just how broken copyright law is? But—let’s get to the complications of sending out free work. If somebody started passing off your work as their own, you would not be happy.
CD: I went to elementary school with Tim. It’s a small and funny world that the two of us would end up as Lessig’s proteges. But to your question: that’s not copyright, that’s fraud. That’s plagiarism.
JT: OK, if a publisher started selling a book written by “Frank Smith,” but that contained only your words—isn’t that a danger to giving your stuff away electronically, for free?
CD: So, let’s pick the issues right. Let’s first of all say that fraud or plagiarism is bad for a number of different reasons—not all of them having to do with the writer, some of them having to do with the reader. Readers deserve to know that the thing that they buy has been accurately labeled. I also wouldn’t approve if someone sold Coke in a Pepsi can. Not because I particularly like either beverage, but I think fraud is wrong. So that’s the first question. The second question is, “How would I feel if a corporation misappropriated the fruits of my labor and profited by it without my permission?” And that’s a meatier question, but when you conflate the two you just confuse the issue.
I guess it depends on the kind of profit and how they’re profiting by it. So, I don’t get upset if a carpenter sells a bookcase to someone and makes money because that person needs somewhere to put my book. Even though that carpenter is benefiting from my labor. So I think reasonable people can agree that there are categories of use that you have no right to recoup from. And I think that, for example, search results fall into that category. You know, the fact that Amazon or Google want to show quotes from your book alongside search results for people who are trying to find out which books contain which string, I think it’s just crazy to say that you deserve to be compensated for that—even if they could figure out a way to make money off of it. Indexing books is just not in the realm of things that we deserve to get compensated for, any more than library lending is.
And I know that in Europe they do have a library right, and you actually do get compensated for library use. I actually think that’s kind of gross. I don’t think that’s good public policy. If we want to subsidize writers with public money, don’t take it out of the budget of the library. What a disaster for public policy, for good stewardship, to take money out the hands of the public libraries. What a disaster that writers have actually endorsed this plan.
So that leaves us with a narrower category of uses, which are the uses that are neither cultural nor in the realm of accepted, normal, reasonable exceptions to one’s copyright: where it’s a direct infringement and there I do in fact object to a commercial publisher reproducing my work without giving me money for it, holus-bolus, in a way that is not consistent with fair use and historical exceptions to copyright.
But that’s not the same thing as objecting when a reader does it. I think that we’ve always had a different set of rules for what non-commercial actors do than for what commercial actors do. What commercial users of a work do is industrial—that’s copyright; what non-commercial users of a work do is just culture, and culture and copyright have never had the same rules, although according to the law books they do. But the costs of enforcing them culturally—against the person who sings in the shower—those enforcement costs are so high that historically we’ve treated that activity as though it weren’t an infringement, when in some meaningful sense it is. So, the fact that the Internet makes it possible to enforce against certain cultural users I don’t think means that we should enforce against cultural users, or start pretending that schoolchildren should be taught copyright so they can understand it better and not violate it. If things that schoolchildren do in the course of being schoolchildren violate copyright, the problem is with copyright—not with the schoolchildren.
Snape breaks into Hogwarts and rescues Lucius Malfoy from Azkaban Prison. Harry believes that he can defeat Snape and Voldemort only by strenuously practicing charms. Professor Slughorn, inspired by a book from the East provided by Cho Chang called “Thirty-Six Strategies,” devises a plan enabling Harry to seize Snape in the Ministry of Magic. But Gryffindor’s sword, which hung in the headmaster’s office, assassinates Professor McGonagall.
When Harry confronts Voldemort at Azkaban, the Dark Lord tries to win Harry over as a fellow descendant of Slytherin. Harry refuses, and together with Ron and Hermione, kills Voldemort instead. Now what will Harry do about his two girlfriends?
In another of the books, Harry is assisted by Gandalf. No appearances by Han and Chewy, AFAIK.
Larry Lessig is shifting the focus of his work away from IP and copyright issues and toward tackling what he calls corruption. “I don’t mean corruption in the simple sense of bribery. I mean ‘corruption’ in the sense that the system is so queered by the influence of money that it can’t even get an issue as simple and clear as term extension right. Politicians are starved for the resources concentrated interests can provide. In the US, listening to money is the only way to secure reelection. And so an economy of influence bends public policy away from sense, always to dollars.”
For the four or five of you that haven’t yet read Moneyball, the entire thing is available online, courtesy of a Russian site presumably out of the reach of the American legal system.
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