Archive for the ‘History’ Category
The impending Bill C-11, “the Copyright Modernization Act” makes me very nervous. I’m a writer, not not a lawyer, nor a reporter, but I’m sure I will be blogging about this in the days to come.
Naturally I was very interested in Jesse Brown’s interview with the University of Ottawa’s Professor Michael Geist, who is unquestionably an authority on Canadian Copyright Law. I started put to transcribe this podcast for myself, but then it seemed silly not to share, since Jesse Brown is cool enough to license his podcasts with a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada (CC BY-NC-SA 2.5).
I have added links where appropriate, and I cleaned it up (expunging “ums” not expletives). Feel free to listen to the original Podcast at TVO while reading along. [Note: Any transcription errors are my own.]
Okay, quick show of hands… Who is against the part of bill C-11 where it says that if you break a digital lock for any reason you are breaking the law?
Okay we’ve got the Liberal Party,
we’ve got The NDP,
we’ve got a bunch of Associations,
The Canadian Association of Research Libraries,
The Business Coalition for Balanced Copyright,
The Council of Ministers of Education,
Documentary Organization of Canada,
Canadian Library Association,
The Canadian Civil Liberties Association,
The Canadian Federation of Students,
The Canadian Teachers Federation,
The Canadian Council of Archives,
The Retail Council of Canada,
The Canadian Consumer Initiative,
The Provincial Resource Center for the Visually Impaired,
The Canadian Historical Association, and, oh yeah, Canadians.
Just about every Canadian who bothered to chime in about this said they did not like the digital locks provision.
Okay. So that’s one side of it.
Now put up your hand if you like the idea that breaking a digital lock for any reason should be a crime.
Just The Conservative Party of Canada.
The thing is, that’s sort of the only hand that matters.
They have a majority, they can kind of do what they want. And they’re gonna.
Bill C-11 as it stands, is probably going to be a law pretty soon. And now it’s time to talk about what that means.
And who better to help out with that than Professor Michael Geist. Michael, welcome back to the show.
Bill C-11 is being debated in parliament, we’ve got the other parties coming out against it, we’ve got the Canadian Coalition for Electronic Rights encouraging people to come out against this… is it just too late? I mean, you heard Minister Moore on this program. He did not sound like a man who is going to change anything fundamental about this. Is the digital locks issue set in stone?
I think pretty close to that. At least that’s certainly what the minister has been saying, and you know it’s a new environment of course politically where we’ve got a majority government. And while it’s heartening to see how the opposition parties have coalesced around the digital lock issue, unequivocally, that they can’t support the bill with the digital lock provisions in the way that they are currently structured, it seems to me at this point in time that it may be past the point of no return. The Government making clear that its not looking to make fundamental changes to digital lock provisions, or frankly much else in the law.
It’s kind of bittersweet, isn’t it? I mean the other parties have never been clearer, they’ve never understood the issues better… they’ve never been more forthright in what they don’t like about it and what they can’t support — at the moment when their opinion matters least.
I think that’s right. I mean I think it is good there is that growing recognition within the Canadian Public, where you see so many groups that have come out to express concern, as well as politically, at the same time if we hold the government to their word that they’re not gonna make any big changes, there are of course some good things in Bill C-11 as well.
Around fair dealing, around the role of Internet providers, around statutory damages, some of those issues have been subject to very misleading attacks by a number of groups, and so I think it’s heartening that they haven’t resonated. In fact, I’d go even further, its clear if you see the reaction from the opposition parties, that they really haven’t picked up on many of those issues either. I think they recognize that the government actually does strike a pretty good balance on many of those other issues. The one place where the government hasn’t done so is on the digital locks and its disappointing we’ve come this far and there is that opportunity with so much awareness of the problem, frankly its just as disappointing that a fix here is relatively easy. One that would allow for compliance with our international obligations that would be consistent with what we’ve seen in a lot of other countries that would give legal protection for digital locks for those that want it, but at the same time would respect the rights of users, whether we’re talking about consumers, educators, or even other businesses.
I brought it up directly with the minister. I said why not just make it illegal to break a digital lock if you’re breaking it for the purpose of infringing, and he pretty much ignored the point.
well, there isn’t a solid answer to it. As you may know, I was able to obtain under the Access To Information Act, both the internal clause review of the bill, as well as well as fifty pages of government speaking points. And what you find is there isn’t a good answer from the government, other than ‘we think it’s the right balance’. But when you start pointing to significant issues that exist within the bill, real problems, there isn’t a good answer, you know.
Is there a good answer to why those with perceptual disabilities – the blind – may find themselves locked out of works where there is a digital lock, because the current exception that’s in Bill C-11 is so restrictive talking about not being able to unduly impair a TPM – a technological protection measure – such that the blind find themselves locked out. We’ve seen a number of those groups speak out about that issue. I don’t think there is a good answer for that.
Is there a good answer for why researchers who aren’t in the narrow scope of security research, may find themselves locked out, because there’s an exception for security research, but not research more generally. I don’t think there’s a good answer for that.
Is there a good answer for why, in the United States there’s now an exception, specifically for picking the digital lock on a DVD in certain circumstances, but we don’t find something similar in Canada. I don’t think there’s a good answer for that.
And I guess ultimately if there a good answer why many countries New Zealand. Switzerland, and many others that have recognized that you can be compliant with the WIPO Internet treaties and link it directly to actual copyright infringement, well no, there isn’t a good answer for that either. Which is why the government typically simply goes back to talking points which said this is our balance, take it or leave it.
We needn’t play naive here; we know what the real reason is. It may satisfy WIPO to have a more lenient approach to legitimate breaking of digital locks, but clearly our government does not believe that it will satisfy the Americans and they’re going to bully forth with this.
Lets assume that they do, it’s pretty likely that’s gonna be the case, what happens next. What are the copyright implications of the Supreme Court of Canada finding that linking is not publishing. What happens when you talk about an ISO Hunt type website that links to torrent files that might be infringing, but itself does no infringing. Or for that matter Google through which you can find a lot of torrent files that contain copyright infringing material.
Right. well, let’s start by saying that I think this decision that involved p2p.net and the potential liability for linking was a great decision from the Supreme Court of Canada and I think one of the things that we’re seeing from the court is a recognition of the real critical nature that the Internet plays for freedom of expression more generally, and what it’s willing to do, and we certainly see it in this case and I think we see it in some of the court’s other discussion, is that they are really willing to give specific protection for the speech that can occur online because it recognizes just how integral it has become for so many people, certainly for communications for culture and commerce but for basic freedom of expression and to protect those rights that are so central and fundamental within a democratic society. In recognizing that the Internet itself and that activity on the Internet has to be protected.
There are some pretty big implications there. I mean when you think for example of some of the proposals in other countries that have sought to kick people off the Internet based on a number of allegations of infringement. That’s to say you take that kind of proposal which is not on the table right now in Canada, but we know some of the rights holders would like to see it brought to Canada, this is a Supreme Court of Canada that you get the sense they would simply laugh that out of court. That it would not withstand any sort of Charter scrutiny given the strong link that it sees between the Internet itself and freedom of expression. So I think in that sense it’s very good.
More directly or more immediately we’ve had a number of proposals put forward that seek compensation for essentially the act of linking to copyright content. Through Access Copyright for example. Their proposal has argued that linking to content may fall within its tariff, as though we’re dealing with some sort of reproduction of the work. I think if you take a look at the analysis that we’ve had from the Supreme Court here, where it’s very clear that it does not believe that a link amounts to a reproduction, or a republication rather, in the context of defamation , I think a similar kind of analysis might well come into play if you start talking about if from a copyright context.
I mean, they were really explicit. You know, like (A) Linking is not publishing and (B) if you were to deem it so, the Internet wouldn’t work. How can you hold people accountable for what lies on the other side of a link, it can change and people have no control over that.
The Court totally understood both how information is disseminated online,how the Internet functions, and that central role that linking plays. So in that sense it was very good. And note that there are three decisions, there’s the one that’s adopted by the majority of the court, and then there are two concurring decisions each actually adopts different standards when it comes to potential liability for linking. So all agree that as a basic premise linking shouldn’t bring liability but then they get into the question of what if. Under what circumstances might linking rise to the level of potential liability, and the one that the Supreme Court ultimately adopts or that the majority of the court adopts is the one that has by far the highest threshold. One that seeks to protect as much as possible that freedom of expression online, saying yes at the end of the day you still go after the person who is responsible for the defamatory speech, that’s where responsibility lies, not with someone who has linked to this content.
Okay, but how do we reconcile that with Bill C-11 which states that if a website’s primary purpose is to enable copyright infringement it doesn’t matter whether or not that site itself infringes, it is subject, it’s breaking the law, it’s breaking Bill C-11. So I mean it seems that the precedent that’s just been set is in some sort of conflict with that piece of legislation.
I don’t know if its in conflict, but obviously its not wholly consistent. I mean what the government is trying to do in C-11 is establish a very tough rule that goes after these sites, the so-called ‘enabler’ sites.
I’ve argued that we already may have laws that can deal effectively with those sites. In fact there is already an ongoing lawsuit the Industry has brought against ISO Hunt and so there is still issues around authorizing infringement which apply whether or not we’re dealing per se with a link We could get into a debate as to whether or not links alone are enough to authorize infringement, but where you’ve got a site that seems to be by its design designed to support infringing activities, the case that would be brought would probably involve more than just pointing to the linking activity but rather the structure of the search, the way in which it has been designed to try to rise to the level of authorizing others to infringe. The truth is, we don’t fully know yet where courts would land on these issues. On the enabler provision it’s still not a part of the law, and in the cases against ISO Hunt the Industry has for so long dragged its feet seeming content to score points for the politicians by saying Canadian Law is Weak, we need legal changes, although quietly on the side, continuing to pursue legislative legal remedies using the law as it currently stands.
Now, there’s another part of this where the courts may find issue with C-11. There’s a possibility if a case were to be brought to the Supreme Court of Canada that was arguing that the prohibition on breaking digital locks is a violation of our Charter Rights, the court might find that is true. Is there any indication of where they would stand on that? Do you think that a precedent setting case like that is likely once this bill becomes law?
It’s an interesting issue and I don’t think so much that it is a matter of Charter Rights but rather a violation if the Constitution in terms of the division of powers. And the argument here, and I think its a good one, is that the way the Constitution is structured, Copyright is the responsibility of the Federal Government but Property and Civil Rights fall to the Provinces. So long as you’ve got provisions that are clearly about copyright, this is something that obviously falls within Federal jurisdiction and they can legally legislate.
The problem the Government may face when it comes to the digital lock provisions as they are currently structured, is that they seem to be far more about property rights, what people can and can’t do with their personal property that they’ve purchased than it is about copyright. In fact, as part of that Access to Information request that I obtained from the government, there was a clause by clause analysis of the legislation, and the government is very very clear in that you don’t need an actual copyright infringement to violate the digital lock rules, and the traditional defenses that exist within the Copyright Act also don’t apply when somebody breaks the digital lock rules. So if we’ve got provisions here where we’re not talking about traditional offenses under the Copyright Act and we’re not talking about traditional defenses under the Copyright Act, that doesn’t sound very much like copyright at all.
Give me an example. Are we talking about like if I were to break a digital lock on a DVD or if I were to unlock a cell phone how does that have anything to do with copyright, is that what you mean?
That’s exactly what it is. We’re talking about access in the case, let’s say, of the DVD and its the Copyright law not the Access Act, and so the Copyright Act deals specifically with copying and reproduction of works. This ventures far beyond that into people’s rights to access materials, in this case the use of the property they have purchased. The copyright holder of course owns the right in the underlying work, the intellectual property that exists within the DVD, But you still do have some rights over the physical DVD that you’ve purchased and the notion that one can exclude access part of that is pretty far afield from conventional copyright.
Now if the government would follow the recommendations that we’ve seen from so many groups, that say create a clear linkage between breaking a digital lock and an intent to infringe, well then it does start sounding again like copyright, because now we are talking about people who are breaking copyright rules and the digital locks are there to support those basic policies about insuring the copyright act is effective.
But the way the government has structured the law right now, is that they’ve moved pretty far away from traditional copyright, it really is into the realm of traditional property rights. It’s all about what consumers can and can’t do with their property irrespective of whether someone might be infringing copyright or even irrespective of whether or not they’ve got an appropriate defense of fair dealing or otherwise. And so I think it is entirely possible once this becomes operational, and we face the prospect of some actions brought against people, that we’ll see groups seek to clarify whether or not the provisions as currently structured even pass muster from a constitutional perspective.
And this is not sort of you know, lawyeringness, or a kind of niggling detail, our rights over our private property are pretty essential in any democracy. These are constitutional rights. The circumstances of where this would get fought I suppose would be if you found the right case, say a blind person who buys a book that is not available as an audio book They break DRM in order to feed it into a text to speech program so they can actually enjoy what they bought. There is no question of illegal reproduction, certainly not commercial, That might be a case that you know some interested lawyer who knows about these things. maybe yourself might actually make an issue out of it and take it to the courts and then that would challenge the bill itself.
I think that would challenge those specific provisions. So I would seek to argue that the particular provisions around digital locks are unconstitutional because they are ultra vires the federal government. In other words, provisions that involve property and civil rights, and do not directly involve copyright, are beyond the jurisdiction of the purview of the Federal Government.
There’s an easy way of course to fix that and make this legislation a bit more bulletproof against a constitutional challenge and that’s to create a link to copyright. As we’ve been discussing now, despite the fact that so many groups and now all the opposition parties have been calling for exactly that kind of remedy the government has been loath to move in that direction.
What will be the impact for average Canadians in the period of time shortly following the passing of this law. Are we going to see the same kinds of lawsuits that, I mean, Minister Moore like to say that the Industry is done with that kind of lawsuits that the Recording Industry Association filed against, I don’t know, 30,000 individual file sharers, teenagers, single moms… Of course the movie industry seems to be moving in that direction. The Hurt Locker down loaders faced lawsuits like that. Are we going to see that in Canada? Is that how this is going to hit home for people who have not paid the closest attention to this up ’til now?
Well, you know, the odd thing about this legislation is that the way that it gets promoted is so often around things like peer to peer file sharing but C-11 has very little to do with peer to peer file sharing.
The practical reality is that similar legislation has been in place in the United States since before the advent of Napster and so the notion that suddenly new digital lock protection are going to provide the kind of protections that are necessary to eradicate infringement online is just patently false. And I think everybody knows it. I spent sometime this week at a conference with a series of European experts are here and no one’s talking about digital locks. In fact in Europe a number of countries have implemented it in different ways, in some ways different than the United States has implemented it. Digital locks aren’t ultimately about dealing with peer to peer and they’re ultimately not about these sorts of lawsuits.
And so, once the legislation is passed, we’re going to see a real impact. Whether its in education, or in other places where the rules won’t be clear, that many of the traditional user rights or exceptions, around research, or around private study, or in criticism review, potentially even around education itself, if that becomes part of the law with C-11. There, once there’s a digital lock in place, those rights cease to apply and I think that’ll have a pretty dramatic impact.
Now, there’s a lot of other good things that will come into the legislation, in terms of clarifing legalization of recording television shows and back up copies. Extending or expanding some of the fair dealing rights. I think all of that’s great. But at the same time those digital lock rules will have that immediate impact. As for the prospect of lawsuits, the Industry stood up before the committee just a few months ago, just before the bill died, and was unequivocal when asked directly about the prospect of new file sharing lawsuits against individuals, and said they have no intention of doing so and just within a number of months, we now know that lawsuits have been filed with three major ISPs in Canada, and of course if those are successful, even with the changes to the statutory damage provisions in the bill, even with changes that create a cap for non commercial infringement, the door is still open to see more of these kinds of suits.
You know, I feel that most Canadians, for personal use, are going to continue to do whatever they were doing before, if in fact they are aware of this bill is a law or will soon be a law or not. It’s really at the institutional level, the universities and companies that just want to avoid liability in any way that they’re going to stop doing a lot of things that they have been doing.
That’s absolutely right. And in fact I’ve been asked many times since both Bill C-32 and C-11 about that ability to enforce and I think it is true that practically speaking, most individuals are going to be very tough to stop them from picking a digital lock, the tools are out there, even though this will make the distribution of those tools illegal, and further, its arguable that there are no real damages here either, especially if they are simply seeking to access their own works that they purchased.
But where the rubber will hit the road, where the enforcement will not only be possible but probable, and where it will have a real impact, is frankly, as usual, on the good guy. On the people who are actually going out and buying licensing, trying to make use of materials, and they suddenly find now that where there are locks there are going to be restrictions.
Where you’ve got someone who is sight impaired who wants to ensure they’ve got access if the publisher isn’t making it accessible, and where its behind the lock, they’ll be prohibited from going after it, and there will be large institutions that might want to try to do that on behalf of their users they won’t be doing it.
In larger education institutions where you’ve got teachers and students who want to engage in remix and multimedia presentations and they need to be able to break a digital lock in order to do that, things that are legal as the law currently stands, that too will stop, because the guidelines I think will be unequivocal when presented within those institutions they want to stay on the side of the law and what they will do is make it clear that they can’t engage in that activity.
And so the sad part of all this, one of the sad parts about all this, is that where this will hit most directly, are on the people who are the most likely to want to be compliant with the law. And its in the one place where there are some of the best advantages of using these kinds of new technologies and providing new levels of access, new kinds of creativity and yey what the government is going to be doing
stopping some of it dead in its tracks.
Well, this is soon going to be over and then it’s just gonna be beginning.
I think that’s right. It’s the beginning in terms of some of the legal questions and issues about the bill, and incredibly, it is very likely to all start again with a new piece of legislation now on IP enforcement, that may well be introduced weeks after this piece of legislation passes through the parliamentary process.
I hope you’ll be willing to take us through that when the time comes. Thank you as always for your time, Michael
It’s my pleasure, Jesse. Take care.
Search Engine is produced by me with help from Luke Simcoe and a community of listeners who, unlike me, know their Charter from their Constitution. Email me at email@example.com Check out the blog, its at t-v-o-slash-searchengine The videos which are going up all the time go up at YouTube-dot-com-slash-t-v-o-searchengine and I’m on Twitter @jessebrown
this program is released with a Creative Commons License. Go ahead and link to it, I promise not to switch it with anything nasty. The next podcast will be up on Tuesday.
[bring music up and out]
Today is Julian Assange’s birthday.
Assange thinks human beings have a right to privacy, but democratic governments owe their citizens transparency.
Julian Assange isn’t an ordinary guy, but an innovator. Not mired in preconceived notions, he is a prime architect of WikiLeaks, the first Stateless news organization. WikiLeaks was designed to anonymously accept, vet and publish information that the public should be privy to.
It appears that elements of the United States government prefer to operate without citizen oversight. Some decades past, US government leaks given to Woodward and Bernstein brought criminal behavior in the Nixon government out of the shadows and into the open. For this service to their government and their nation, Woodward and Bernstein were lionized.
Although Mr. Assange and WikiLeaks were well thought of for their efforts in support of freedom in repressive regimes, the U.S. government attitude changed abruptly with the release of the the “Collateral Murder” video where military personnel cavalierly used unarmed civilians for target practice. As far as I know, no attempt has been made to address this problem. The war criminals implicated in the video don’t even appear even to have been reprimanded.
However, Bradley Manning, the young intelligence officer accused of being the WikiLeaks whistle blower, (the modern day equivalent of Bob Woodward’s “Deep Throat”) has been isolated, incarcerated, and held in conditions that suggest attempts to “break” if not “brainwash” the young man. It must be noted that Bradley Manning’s extreme loss of liberty has been effected even before he has been convicted of anything.
Wikileaks, and anyone associated with it, has also come under fire.
Julian Assange, as “the face of WikiLeaks,” has drawn the lightning. Various powerful people have leveled threats against Mr. Assange, including Canada’s own Tom Flanagan, reputedly a friend and mentor of our sitting Prime Minister, who advocated assassinating Julian Assange on Canada’s national public broadcasting network, CBC Radio-Canada. The video of Flanagan’s crime (counselling to commit a crime is in itself a criminal offense in Canada) has been seen around the world. Yet in spite of citizen complaints, petitions and public pressure, no Canadian police force will even bring charges against this well connected Canadian.
Currently, Mr. Assange is being held in the United Kingdom under house arrest, with an electronic surveillance ankle bracelet and draconian terms of “bail.”
Ostensibly, this is because Mr. Assange is fighting extradition to Sweden, where prosecutors wish to question him. They had previously questioned him, and declined to bring charges. Many people believe the real agenda for Mr. Assange’s extradition is simply a sham to keep him “on tap” until the American government manages to find laws under which to charge him. Failing that, existing American laws, which currently allow protection to news media when publishing material that may have been obtained illegally by whistle blowers, may be changed.
So today, on his birthday, Julian Assange remains a prisoner.
House arrest may not be as bad as incarceration in an actual jail, but it is, nonetheless, a deprivation of liberty.
In spite of this, I hope Julian Assange can have a good 40th birthday, and take heart that many ordinary people around the world support the cause of freedom, and we do appreciate his efforts.
Julian AssangeThis photo by New Media Days / Peter Erichsen is licensed under a Creative Commons Attribution-Share Alike 3.0 License.
Free Bradley Manning photo by Steve Rhodes released under a Creative Commons Attribution Non-Commercial No derivs License
Thanks to my brother, humor columnist, Larry Russwurm, for spotting and photographing the graffiti below in Kitchener, Ontario, Canada, and releasing the image under a Creative Commons Attribution-ShareAlike 3.0 Unported License.
I went searching for a photograph of Edgar Allan Poe. You would think it shouldn’t be difficult to find a photograph that can be legally shared online for a famous writer who has been dead since 1849. Even the most draconian copyright laws of today can’t possibly lock up the image of this historical figure.
Or can they?
Doing a Google search for just such an image that I might legally share online, I found this photograph:
The image is marked “copyright 1904 by C.T. Talman.”
Who is C.T. Talman? There is no Wikipedia page for C.T. Talman. A Google search returns barely two pages; the only real results direct the searcher back to this photograph. My best guess is that C.T. Talman was a man, since the preponderance of professional photographers of the day were most certainly male. So the Internet gives us very little information about this photographer whose only claim to immortality seems to be to have provided us with this priceless historical record: an image of the literary giant Edgar Allan Poe.
You have to admit, Edgar is looking pretty good in this portrait for a man who has been dead for fifty five years.
Well, it’s Poe, right? He was the king of supernatural fiction after all.
All kidding aside, how could C.T. Talman have taken this picture?
The easy answer is that he didn’t.
Searching further, this very image was used as the biographical portrait for the Wikipedia article about Edgar Allan Poe, but the image is identified as the “1848 “Ultima Thule” daguerreotype of Poe.” Clearly the photograph was taken 55 years prior to the 1904 date inscribed on it by C.T. Talman.
The Wikipedia page doesn’t tell us anything about C.T.Talman on the File:Edgar Allan Poe 2 retouched and transparent bg.png page, but provides a link to the original upload of the image, which does:
A photograph of a daguerreotype of Edgar Allan Poe 1848, first published 1880.
Taken by W.S. Hartshorn, Providence, Rhode Island, on November 9th, 1848
The daguerreotype was made by W.S. Hartshorn and then re-photographed (copied) by C.T. Talman in 1904.
When W.S. Hartshorn made this Poe daguerreotype, U.S. copyright law did not extend to photography. Photography didn’t come under copyright until 1882 when photographer Napoleon Sarony sued the company that used one of his photographs of Oscar Wilde in an advertisement.
The Poe daguerreotype image was created and published before copyright extended to photographs, placing it in the public domain. At the time, American Copyright law required an act of registration for work to come under “copyright protection.” Yet when C.T. Talman later photographed the photograph – made a copy of this image, he affixed his own copyright on the image. Did this take it out of the public domain?
C.T. Talman unquestionably did the world of culture a great service by preserving this important historical image. At the same time, anyone looking at the image sees a copyright declaration which makes it appear C.T. Talman was the author of the photograph, when in fact, what he did was the modern day equivalent of making a scan – or a copy. As I understand it, an exact reproduction of an existing art image does not allow a photographer to assert copyright.
If I were to scan someone else’s image, and then affix my own copyright declaration, I would be guilty of copyright infringement. Back then, the only reason C.T. Talman would have made his copy of W.S. Hartshorn’s daguerreotype, was so that he could then sell the copies. This is what we know today as bootlegging, or piracy. By asserting copyright, C.T. Talman prevented others from doing so. Was this fraud? Bootlegging? Or plagiarism?
Because the worst is that by copying and then defacing this photograph with his own spurious copyright claim, C.T. Talman has secured a bit of immortality by garnering credit that should have gone to the actual photographer, W.S. Hartshorn. Most people looking at the image will see C.T. Talman’s name, and think that he was the photographer.
For myself, I am thankful that The Dark Clown shared this photograph online, because it is the only image of Edgar Allen Poe “labeled for reuse” that Google could find.
What is ironic, is that a tiny thumbnail of this image is stored in the University of Minesota’s Digital Content Library marked “Copyright: Distribution of this material is not authorized.” I would expect an educational institution to make an effort to properly attribute works in the public domain.
the worst thing
This strikes me as yet another example of copyright harming creators.
This image of Edgar Allan Poe was photographed by W.S. Hartshorn and is unquestionably in the public domain.
Thanks to the comments, I’ve learned some new things, and will be revisiting this issue with a new blog article in Early September 2012.
One biggie shared by Terry Alphonse W.S.Hartshorn was actually Samuel Welds Hartshorn (1802 – 1885).
Those of us who can’t afford a surviving 1st Edition of Poe’s 1827 poem Tamerlane can read it online here.
“Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”
This clause is often understood (erroneously) to refer to copyright, but it is not copyright. Rather, it refers to what is called:
Natural rights, also called inalienable rights, are considered to be self-evident and universal. They are not contingent upon the laws, customs, or beliefs of any particular culture or government. Legal rights, also called statutory rights, are bestowed by a particular government to the governed people and are relative to specific cultures and governments. They are enumerated or codified into legal statutes by a legislative body.
Moral rights pertain to intellectual work; a perpetual right to identify themselves as the author of their original work (that involves no copy, just the original). The author has natural dominion over the original work; and is free to lock it away, or share it, or sell it; but even if sold, the creator is forever the creator. The offense against the author’s moral right is plagiarism. This is what is recognized in Article 27 of the Universal Declaration of Human Rights, 1948.
A right is a right no matter the locality and it lasts forever; a privilege like copyright only exists for the period of time set by the law of the land. Copyright is a state granted monopoly wherever it exists, but of course sovereign nations have different laws. That doesn’t change the fact that it exists only because it is imposed by statute.
American Copyright History
The framers of the American Constitution did recognize the natural human rights of creators, and secured these rights, but again, that was not copyright. After all, the 1787 Constitution certainly didn’t recognize the US Copyright privilege that was based upon itself and not enacted until two years later in 1790.
Copyright = Monopoly
Published works lie outside of an author’s human rights, so the state grants exclusive reproduction privilege — a monopoly — over the reproduction of published works. That is copyright.
The printing monopolies predating the Statute of Anne in England were privileges granted printers, and so are even less beneficial to creators than copyright, and so not the same thing at all.
Public domain image From Wikipedia Printer in 1568 by Jost Amman (1539–1591)
Again, this article came from the comments on BuzzMachine.
Growing up I didn’t know any of my family history. One of the cool things that I’ve learned is that my paternal ancestor who emigrated to Canada from Alsace was named “Valentine.”
Parents protect their children. As a parent, I censored what my child was exposed to.
I protected my child from the information or reality that he was not able to handle.
He was probably in the first grade the first time he saw the classic movie
“A Christmas Story.”
Naturally, it made him desperate to know what Ralphie’s “F-word” was.
Once known, this word of power might be used inappropriately.
At school, say.
Or at Grandma’s… She would be horrified.
And when Grandma asks where he learned this word, he would have to say:
“Mommy taught me that word”
I don’t think so.
he just wants to know.
He will not use it inappropriately. In fact, he promises faithfully never to say it, if only I tell him.
Was he mature enough to abide by this agreement?
My greater life experience inclined me toward disbelief.
So I told him the word was
Having just vowed to ‘never’ use the word,
naturally the first thing out of his mouth was “Frankenweenie.”
So there was some vindication in my decision to censor.
(He did, of course, learn how to both say and spell the actual “F word” when it was spray painted on the wall of his elementary school a year later.
Only then was it safe to show him the Tim Burton classic Frankenweenie film.)
But as a parent, there were things I knew would disturb him. Being in tune with my child, I was uniquely positioned to have a good idea what protection was necessary. For instance, in the early years, good guys could never die. As he grew and learned acquired the ability to protect himself, the terms of censorship changed. Before he was 18 he had acquired enough maturity that external parental censorship was no longer necessary.
Of course I never did show him Old Yeller, a film that traumatized me as a child. Just seeing a commercial for it makes me burst into tears to this day.
rewriting history is a bad idea
Although there is a time to protect children, I thoroughly disagree with the practice of rewriting literature to “protect” children.
The portrayal of the Jewish moneylender Shylock caused offense to a great many forward thinking people. In an era of political correctness many schools banned the play from the curriculum.
The “N-word” caused the same fate for Huckleberry Finn. Even worse, liberal minded people thought a reasonable compromise was to change the text. Rewrite it to make it ‘suitable’ for children.
One of the great philosophers who influenced my adolescence was Lazarus Long. To this day it doesn’t matter to me that he was a fictional character.
A generation which ignores history has no past: and no future. “
Rewiting history doesn’t change what has come before. It merely serves to prevent any possibility of learning from the mistakes of the past. Personally, I have always learned best from my mistakes. I was horrified to hear that revisionism was extending to Nancy Drew and Hardy Boys books. Seems everything that was a ‘bad influence’ was redacted. Look around. Has the world become a better place for it? I don’t think so.
Personally I never much liked Tom Sawyer. Sorry folks, I think Tom was a creep. He’s dishonest, venal, manipulative. Even his friends can’t trust the guy.
Now, Huck Finn, there’s a character I can get behind. I admired Huck. Maybe because he came from nothing, he is one of the least judgemental characters in literature. Certainly one of the most egalitarian. Yet some people wanted to remove the N-word from the world. How can you teach a book that uses the N-word to impressionable children?
Easy. You TEACH children. You talk about it.
What a wonderful opportunity to talk about what people said and did back then.
Removing the “N-word” is a small obscenity in a book that includes a big obscenity called slavery. Contrast that with the good in the book. A central part of the story is the incredible friendship between Huckleberry Finn and his friend Jim. That was unheard if in the day. Huckleberry Finn is a wonderful book capable of engaging empathy, and changing the way people think. Watering it down into a politically correct revision helps no one. Teaches nothing.
A Merchant of Venice
A smash hit at a time when Jews were prohibited from full citizenship in Elizabethan England.
Religion permeated the laws of the land at that time. Usury was illegal for Christians… that meant Christians could not charge interest on loans. The net result was that Christians with money were singularly unwilling to loan money to strangers for business start-ups or investments. This was particularly rough on the economy.
Although prevented from holding many jobs or owning land, Jews were legally allowed to lend money. Charging interest was one of the few sources of legitimate income available to a Jew in England in Shakespeare’s day.
Looked at in the context of the times, it is incredible that Shakespeare was able to write and produce a play in which a Jew could hold such an important part.
Certainly in some ways Shylock is a caricature, but everything he does and says is perfectly understandable in the historical context.
Even more importantly, he delivers some of the most powerful dialogue ever to address the issue of racism:
If you prick us, do we not bleed?
if you tickle us, do we not laugh?
if you poison us, do we not die? “
–Shylock, William Shakespeare’s A Merchant of Venice
Shylock made Jews real. You might not like him, but there is no question of his humanity. And although Shylock is the villain of the piece, his daughter Jessica is also a Jew. Of course Jessica is quite ready to throw away her heritage to be accepted in the wider world in which she lives. Just like any normal girl.
What an amazing window into history. What an incredible opportunity to discuss perception, religion, race and even human rights. What better place to deal with it but within the education system. Banning “A Merchant of Venice” teaches that it’s best to sweep what we don’t like under the carpet.
That doesn’t address problems, or overcome them. When we bury a social problem like racism, we just drive it underground.
When that happens, it is almost inevitable that it will gather force in the dark, and come back as a more resistant strain.
We need to look racism in the eye and say “that’s wrong.”
If we don’t, it grows and spreads.
How has the world changed since Martin Luther King Jr.‘s day?
I suspect Dr. King would not be happy to see so many citizen protections that existed even before his Civil Rights movement have been curtailed. I kind of think Dr. King would prefer to see a little more citizen protection. I can’t imagine he would be glad to see the erosion of civil rights he fought for.
Those who cannot learn from history are doomed to repeat it.
- George Santayana, eire.com: QUOTES ABOUT HISTORY
Image credit: Fair use of black & white publicity Frankenweenie still portrait of named title character from the early Tim Burton short film.
A.F. Bradley’s 1909 Photograph of Mark Twain, internationally available in the public domain, downloaded from WikiMedia Commons.
From Wikipedia Public Domain engraving of William Shakespeare, Title page of the First Folio, by William Shakespeare, with copper engraving of the author by Martin Droeshout. Image courtesy of the Elizabeth Club and the Beinecke Rare Book & Manuscript Library, Yale University.
Project Gutenberg’s preservation of the Public Domain work Huckleberry Finn provided this E.W. Kemble frontispiece illustration of Huck from 1884
Our family tree research goes back to Valentin and Catherine Russwurm and slams into a wall. Because when these paternal ancestors emigrated to Canada, around 1840, they were completely cut off from the world they left behind. At the time, although crossing an ocean was do-able, it was a biggie. I imagine there was correspondence, for a time, but none survives as far as we know. Letters took a very long time back then. But those were the choices people had. Back then, if you decided move far away from your family, for work, or a better life for your own children, you very likely will never see them again.
Contrast that with today. The methods of transportation have become better and faster and cheaper. Travel is easy. Communication can be instantaneous.
So making the decision to go to school or take a job thousands of miles away or on the far side of an ocean have been made with the understanding that you will be able to go home, you don’t have to say good bye to your family forever.
The problem is, the TSA scanning issue clearly shows just how drastically “they” have changed the rules.
People who do not comply with invasive searches can be faced with being cut off from their families forever as a direct result. Legally.
Because the government assumes everyone is a terrorist.
I’ve just written about Human Rights and the TSA in my Oh! Canada blog. Although I should be writing my NaNoWriMo novel, I’ve been following the issue on boingboing, and of course, being me, making comments. (Who’d have thought that a website devoted to neat stuff and adult toys would end up being one of the 21st Centuries most vocal advocates for democracy?)
There has been a call for people who are flying to be with family for Thanksgiving tomorrow to opt out of the BS Scanner process in protest. We’ll have to see what happens but there are a couple of comments I read on boingboing that bear repeating, so I wanted to include them here. And because boingboing (unlike, say, CBC) publishes under a Creative Commons License I can happily and legally reprint the words of others.
Lots of people have ideas about disruptions, as part of the opt out, but it seems to me that this is
the best advice on Opt-Out
It is clear that the TSA are changing the rules at the last minute so that the traveling public are uncertain (FUD factor). Additionally, the ‘blame’ for delays will be passed on to anyone who, for whatever reason, refuses the porn scanner and, should they also object to having their personal areas groped, to be labeled as potential terrorists. The onus being placed on you complying and not spoiling other people’s travel plans by them having to close a security area should you attempt to go through again.
There is a simple solution.
1. Refuse the x-ray as there is uncertainty regarding their safety – a simple check on the interwebs will show this differing opinion.
2. In a normal voice, but sufficient for those in proximity to you can hear, emphasis should be placed on point 1 above.
3. Opt for a pat down IN PUBLIC. Do NOT go to a private area.
4. Ask questions. This is important. If you are about to be touched by a stranger it is important that you understand the WHY and the HOW of what they are proposing.
5. Ask for the person about to pat you down to put on a new pair of gloves within your sight.
6. Ask for a copy of the rules to ensure that you are both complying properly and also that the rules are being properly enforced. How can you comply if you do not know what the rules are and are?
Above all, be polite and do not be embarrassed or made to feel at fault for ensuring the TSA are able to do their job properly and protect the traveling public. Similarly, if you are clearly complying and being nice there is no reason for the bottom inspectors to detain you. You know it make sense…”
They might not like it, but it’s not against TSA policy as long as you’re not shooting their video monitors or holding up the line. From their site:
“TSA does not prohibit the public, passengers or press from photographing, videotaping or filming at security checkpoints, as long as the screening process is not interfered with or slowed down. We do ask you to not film or take pictures of the monitors. While the TSA does not prohibit photographs at screening locations, local laws, state statutes, or local ordinances might.”
It might be handy to have this printed out in case an agent tries to demand otherwise.”
flatfive in reply to Anonymous
#232: Ask for a law enforcement officer to witness the search. They abide by different rules than the TSA (the Constitution, for example), and they often don’t much care for their assignment to hang out with the government Rent-a-Cops. And by all means, if something happens you don’t like, tell the cop you want to press charges, then and there.”
Also, probably a good idea to have a lawyer on speed dial, with whom you’ve talked to about this prior to the day of travel.
flatfive comment on “Don’t TSA me, bro: Boing Boing open thread, and new rules for those who refuse patdown”
how far is too far
I agree with most of what lectroid and a few other commenters have said concerning better ways to react to the TSA officers and the policies they are being told to carry out.
“I’m so turned on” and fake boner jokes may get attention, but they are also more likely to get you, and your valid concerns, written off.
It is always a good idea to speak with passion, listen with respect, and assertively but humanely broadcast your message. I really do appreciate the stunts some people have pulled to bring more attention to the issues (naked protests, etc.), but in the long run treating everyone–your fellow passengers, your frisker, your congressman, and your mom–with respect and consideration will help ensure that your message won’t be thrown out with all the other jerks and bad jokes. Respect and righteous anger really can coexist. I want the TSA officers and my political representatives understand and hopefully agree with me. They are less likely to do that when I’m mocking them. You don’t have to degrade or mock someone to vocally disapprove of or try to arrest their actions.
I’m having a hard time imaging the effectiveness or longevity of Gandhi’s or Thoreau’s messages of civil disobedience had they been carrying exaggerated sex toy, feigning orgasms, or dehumanizing their assailants. Even when they themselves were being dehumanized. Nonetheless, you are free to do any of these!
I want my foes to know I see them as human beings, which is exactly why I am so disappointed in their actions. Be angry, be articulate; just don’t be a huge asshole.”
“The correct definition is this: terrorism is a tactic. It is force applied with the primary goal of causing fear among a population in order to affect political change.”
This seems to accurately describe what the TSA is doing (albeit by order of a third party). American citizens are being terrorized by their own government.”
I may be old fashioned, but I think human rights and freedoms are very important.
A friend of mine who would like to remain nameless says,
There’s a concept called “seasoning” used to refer to how a pimp breaks the will and reduces the ego of a woman in the process of coercing her into prostitution. It could be considered brainwashing, or thought reform, or, in other words, the steady creation of a holographic crisis in her brain, developed with the intent that she reach a breaking point. Increasingly terrible things happen to the woman at the hands of the perpetrator of the violence. Eventually, the woman comes to think of the abusive relationship as “normal” (with normal being whatever doesn’t require identifying adjectives.)
Seasoning is also used to describe the process someone goes through in abusing a child. He practices hurting her. He gets better at it. Eventually, hurting her is normalized for him, and possibly for her.
A third application of this notion happened in pre-WWII Germany. In anticipation of violence in the streets – to which it was in the interests of the government that people were inured – pornography became more and more violent. Individual acts of violence became normal: and, indeed, people became inured. Because of a combination of this inurement and their inculcated fear, most people kept walking when someone was being beaten in the street.
Now, people stand in long lines at airports and watch while other people are publicly humiliated by being sexually fondled. They stand, passively,listening and watching while children scream in protest with their parents standing by helplessly or even holding them while they’re molested.
To me, this looks like another kind of seasoning; the beginning of the process of normalizing acts of brutality carried out by government authorities, unencumbered by interfering members of the public.
Just a little theory. I don’t think there’s a conspiracy. There doesn’t have to be.”
On the lighter side (!) I will end with a link to:
Robomonkey’s awesome music video:
Have a safe Thanksgiving.
EFF: Common Sense and Security: Body Scanners, Accountability, and $2.4 Billion Worth of Security Theater
Acknowledgment: Thanks to Xeni Jardin and boingboing for using
Creative Commons Attribution-NoDerivs-NonCommercial 1.0 Generic License
There’s so much beautiful Victorian and Edwardian architecture on the University of Toronto campus that it’s really easy to overlook this Great War Memorial. What at first glance appears to be a decorative border along the top begins with the numerals 1914 and the word Ypres, and is followed by other place names of the battles fought by Canadians in France during the “War to End All Wars.”
In 2010 prospective students tour the U of T campus concerned with the problems of the 21st Century.
The Great War was a long time ago. Yet if we look inside the memorial, we can see the names of the 628 young men educated at this university who lost their lives in the trenches of Europe and were buried in Flanders Fields.
A doctor educated at the University of Toronto wrote the most famous poem of the Great War, so it is no surprise to find the poem carved into the left side wall.
The 45 year old Dr. John McCrae died of of pneumonia in January of 1918, “over there,” so he didn’t live to see the ceasefire that marked the end of hostilities on 11 a.m. on 11 November 1918.
The war to end all wars clearly did not.
You’d think we would have learned something from it. Instead, Canadians are today serving and dying in a war not so romantic as Dr. McCrae’s Great War, but every bit as deadly.
Canada’s mission in Afghanistan is winding down and so far in 2010, 14 Canadians have died in action
In Flanders fields, the poppies blow
Between the crosses, row on row,
That mark our place; and in the sky
The larks, still bravely singing, fly
Scarce heard amid the guns below.
We are the Dead. Short days ago
We lived, felt dawn, saw sunset glow,
Loved, and were loved, and now we lie
In Flanders fields.
Take up our quarrel with the foe:
To you from failing hands, we throw
The torch; be yours to hold it high.
If ye break faith with us who die
We shall not sleep, though poppies grow
In Flanders fields.
John McCrae B.A. 1894 M.B. 1898
I was going to be ready long before November 1st. Hah. Almost a whole month to get ready to write. think I will? Or will all the prep happen in the last few days before lift off?
First I have to self-pub last year’s novel. Then I get to prep the new one.
27 October, 2010
Urk. Less than a week to get ready to write.
Five days. *gulp* Teacher interviews tomorrow.
A garbled phone message may mean distant relatives may be dropping by. So here I am. Running late, AGAIN. I’m still working on my self-pub of last year’s novel, “Inconstant Moon.” I am hoping to have the final proof uploaded to Create Space before NaNo begins. But right now the most important thing is prepping for this year’s NaNo. Self pubbing is slowed up; I’m waiting for a bit of fresh-eye feedback. Hoping to be ready to go before NaNo… fingers crossed.
Got the cover redesign almost done. But I finally got some decent work done on the outline.
Running late, AGAIN. Still working to self-pub last year’s novel, “Inconstant Moon,” hoping to have the final proofed version uploaded to Create Space before NaNo begins. Then I can begin serializing it whilst writing this new one.
But right now the most important thing is prepping for this year’s NaNo. Finally got some decent work done on the outline. It’s coming along. The worst of it is – I know better. The best of it is, I’m having fun….
2 November, 2010
Last night was the first write in. I’ve enough of the outline to begin writing, so I’ve made my word count. So that’s the priority today. Except…. Last week the CRTC renegged on the conditions Bell needs to satisfy in order to go ahead with Usage Based Billing. So that will be happening in 90 days. Since I think UBB is a horrible idea that is incredibly detrimental to Canadians, about a year ago I started a public Service Blog to raise awareness of UBB since the media (much of it owned by Bell, like the Globe and Mail and CTV for instance…) So that’s all coming to a head right during NaNoWriMo.
Today the infamous Canadian DMCA, Bill C-32, went for it’s second reading. I was developing characters for the novel, and working on the outline to some extent but clearly I was more tuned in to Copyright. It’s so frustrating because the one MP who seems to get it, the NDP Digital Critc Charlie Angus, is still messing around with the CD levy, which is not only a bad idea for consumers, it’s a worse one for artists. Too tired to get into it now, but that’s one of the blog posts I haven’t written yet.
So Bill C-32 is front and center during NaNoWriMo too. Well, the only thing for it is to do NaNoWriMo first, and only AFTER I’ve made my daily wordcount, and finished the outline or whatever, THEN I can check email and approve comments or write blog posts.
This is necessary because it’s day 2 and I’m already behind… a mere 2,332 words so far. This is especially important for me as I’m planning to write the entire first draft of this novel during November.
(Rather than NaNo’s suggested 50,000 words, that’ll probably be more like 100,000 words total).
This will be the last post here until I’m caught up.