Death by Copyright

No one should ever go to jail over copyright law.

It is inconceivable to me that anyone should ever die over it. Now someone has.

Aaron Swartz killed himself on Friday. He was 26. A legend in the tech community, probably a dotcom millionaire. He could have lounged around poolside sipping designer martinis for the rest of his days.

Instead he worked for the public good, fighting the copyfight, defending the internet and the public domain.

Sometimes people of principle feel the need to challenge unjust laws. And like many reformers before him, Aaron Swartz ran afoul of the law in trying to change the world.

A murderer might have to serve as many as seven years for taking a life.

But 26 year old Aaron Swartz faced perhaps more than 35 years in jail.  Over copyright.

Lawrence Lessig characterized it as bullying.

I seem to spend an awful lot of time writing about what’s wrong with copyright law. Since I started looking at copyright with new eyes, I can’t seem to avoid seeing the harm that it does.

Copyright law isn’t a right, its a government backed monopoly that supposedly promotes innovation. Aaron Swartz was certainly an innovator. He, too, was disturbed by the harm copyright does, and so he tried to push against it. But copyright law pushed back, and made sure he will innovate no more.

There is a great outpouring of agony across the Internet.  Having myself struggled with the demons of depression, Cory Doctorow’s eulogy makes me weep. Depression can seem interminable; I can’t imagine how much worse would it be looking at potential decades of imprisonment.

But what gets me is this comment made by someone I’ve never met on Lawrence Lessig’s blog:

No amount of IP will ever be worth a human life. I don’t care how you justify it. Putting Aaron away for 35yrs may be legally justifiable, just as sending slaves back to slave owners from non slave states once was. I however cannot begin to align the life of any human with imaginary property.”

— Wayne Tedder

Aaron was only a little older than my own bright and principled child.  My heart aches for Aaron, and his family.  No family should have to endure this.  This is simply beyond acceptable. There is no harm greater than this.

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Image Credit
Aaron Swartz, released under CC0 1.0 Universal (CC0 1.0) Public Domain Dedication by Cory Doctorow

Stunning Copyright Declaration

All material in this edition is protected by copyright, exclusively held by the author and the University of Virginia Press. Permission has been obtained by the Poe Society of Baltimore from Mr. Deas and the Rector and Visitors of the University of Virginia to provide this electronic edition for academic and research purposes only. The Poe Society of Baltimore asks all users of this material to respect these copyrights, and not to exceed what would typically be considered as fair use (generally interpreted as selective quotations and/or paraphrasing of only a small percentage of the total material, and with the appropriate attribution and citation).

Although many of the images have been previously reproduced, in various forms, the copyright of an image is usually considered as belonging to the holder of the physical original. Many of the reproductions in the current presentation are provided as a result of special negotiation, and we ask that they not be pirated. Violation of these copyrights may reduce our ability to present similar information in the future.

— The Portraits and Daguerreotypes of Edgar Allan Poe (1989), title page and table of contents

[Note: the emphasis above is mine.]

This is simply incredible. Copyright is a monopoly law enacted by the state, not supposition. American copyright specifically alludes to limitation of copyright terms. Although the reality has been the American Congress bowing to the demands of the special interest group seeking infinite copyright — by granting term extension after term extension — when it comes to photographs of Edgar Allan Poe, that boat has sailed. Edgar Allan Poe died in 1849.

This resulted in extending the copyright monopoly to photographs

Photographs were not even covered by copyright prior to the US Copyright Act of 1870 (confirmed by the Supreme Court decision in Burrow-Giles Lithographic Co. v. Sarony in 1884).

Although I am not a lawyer, the only way any photograph of Edgar Allan Poe could be covered under copyright would be if it had never been published. It seems clear that some people and institutions have hoarded these images of the celebrated writer in the mistaken belief that:

“…the copyright of an image is usually considered as belonging to the holder of the physical original…”

Although the very word “copyright” implies that it is a “right,” in reality copyright is a state mandated monopoly. That’s why there are variances around the world. There have been a few cases when states have further usurped the cultural rights of citizens to grant copyright monopolies in perpetuity, like the Canadian Concurrent Intellectual Property Regimes and the Perpetual Protection of Anne of Green Gables in Canada as well as the U.K.’s Peter Pan extension. Still, neither of these instances are in American law.

Copyright may be a difficult issue, but I would expect a university press to know better.

Copyright is not about ownership of the physical original; this monopoly concerns itself with what is now known as intellectual property rights. Once the original is published; from the moment it leaves the security of the private domain ~ in this case, the daguerreotype artist’s studio — when the work first appears in the world, fixed on paper, perhaps mounted in a matte or frame, in a newspaper, book, or the Internet, the clock starts ticking on the term of copyright. When the monopoly term ends, the intellectual property enters the public domain.

Had Poe been an obscure nobody, these images might never have been published, and so may not have entered the public domain. But that is unbelievable, as Edgar Allan Poe was very famous indeeed, and his death occurred at the height of his powers. There is no reason to suppose any of these images would not have been published at that time, because copyright did not then apply to photographs, so there was no benefit to suppressing Poe photographs.

Copyright law has become a complex mess as it tries to reward this person or that corporation for hoarding cultural treasures that deserve to be in the public domain. Many well meaning people and organizations fall into the morass of copyright misinformation, and make terribly inaccurate statements like the one above.

Although some of these works may have been lost without the efforts of those seeking to benefit from copyright, there is as great a possibility copyright would have done damage, as it often drives original works further and further into obscurity.

Over the last few decades, governments have enacted copyright “reforms.” These have have resulted in onerous draconean punishments being slammed down on individuals who have engaged in copyright infringement of a personal nature, to make “an example.” The intent is clearly to scare everyone else into not committing non-commercial copyright infringement. (What we used to call “sharing” when I was a child.)

As far as I know, this type of infringement was never even prosecuted even thirty years ago. Back then, good law abiding people thought nothing of backing up their record collections on cassette tape, or making a mix tape for a private party. But today, non-commercial and commercial infringement are routinely painted with the same brush of piracy. Personally I think this is ludicrous, because it is the non-commercial sharing and remixing that helps to keep a culture vibrant and growing. Locking it up with copyright means you end up reading the same book and watching the same movie over and over again . . .

Still, it is the law. Since copyright is not a natural right, but a monopoly, it is whatever the lawmakers say it is.

Currently lawmakers are interested only in protecting the special interests of “rights holders,” as they have a great deal of wealth and influence to fuel lobbying efforts around the world.

Although there are exceptions to the Canadian copyright law (“fair dealing”) and American copyright law, (“fair use”), the interpretation of these exceptions are both broad enough and imperfectly understood enough that it is much safer for those of us without a legal staff (aka, the public) to simply not avail ourselves of these exemptions.

Which is why the public and the public domain are not protected from copyfraud at all. There is no legal recourse to prevent statements like the one referenced.

Public domain works belong to all of us… the public. You me and our kids. This is our culture, our heritage.

This type of misinformation effectively prevents most of us from making legally allowed use of public domain works. That is called “copyright chill.” It stifles our use of creative works, and prevents us from using them to create new works, which might be anything from a personal greeting card, a high school history assignment, an original web comic, or a documentary film.

The worst is that, although that misinformation can be identified as copyfraud, no copyright law in the world moves to stop it. The public domain doesn’t have expensive lobbyists to go to court on its behalf, so the public rights are simply trampled by copyfraud.

Copyfraud is piracy.

When the public domain is eroded, we all lose.

You Can’t Copyright the Public Domain

I sent the following email to a museum today. I’ve removed identifying information because I think that the problem is really one of copyright confusion, and I truly hope that they will change their policy.

Your museum sounds quite interesting, and it is creditable to see its commitment to sharing Canadian history online.

I’m writing to inform you of a fairly serious copyright issue. While it is true that [the museum] owns physical copies of the work in its collection, that does not confer copyright ownership. Although I have not looked at your online offerings exhaustively, the one example I looked at closely shows the Museum has licensed at least one public domain work Attribution-NonCommercial-NoDerivs 2.5 Canada (CC BY-NC-ND 2.5).

This license could be considered liberal if the Museum actually owned the copyright in the work. Since Canadian Copyright Law places anonymous work in the public domain fifty years after publication, this work should clearly be in the public domain. Which makes the Creative Commons license you have chosen not a liberal permission, but rather an extraordinary restriction that effectively locks Canadians out of our own history. Further, the Non-Commercial No-Derivatives restriction prevents Canadian made cultural works.

Utilization of Creative Commons licenses is usually good, because they lift onerous copyright restrictions — but not when they are affixed to works in the public domain. Public domain work should more properly be labelled CCO or assigned a Public Domain Mark.

If [The Museum] expects branding public domain work © [The Museum] will ensure accreditation, it does not. It is more likely to inspire people to not credit you, for fear of copyright infringement consequences. Case in point: the image that ultimately brought me to your site today was shared online with no accreditation at all beyond the museum’s name stamped on the side.

The only right copyright grants the Museum is the ability to sue people who copy images so designated ~ if they infringe copyright. Of course, whether a court would subsequently uphold any museum claims to copyright of public domain work remains to be seen.

Even if the museum would win a lawsuit suing Canadians for using part of our heritage ~ cultural and historic work that is in the public domain ~ even commercially ~ would hardly endear your organization to the public. Further it may well curtail future donations of historic work to the [The Museum] Collection.

Employing the Creative Commons NoDerivatives clause will prevent Canadians from using [The Museum] Collection work in celebration and sharing of our own history through the creation of our own remixes and art, and the NonCommercial restriction further prohibits the same for commercial uses. Both of these restrictions belie [The Museum's] stated mission which suggests it “celebrates our past and present life — our history, our people, our communities” but these provisions will instead crush any attempt to use [Museum] works in any “contemporay and interactive” manner.

There is nothing wrong in selling physical copies of collection works in the public domain. If anyone wants to make commercial use of any of the photographs in the museum collection, they would likely still seek out high quality copies or access to the original work. Individuals wanting to frame prints for themselves would similarly prefer the high quality copy that the museum already sells. If I wanted to publish a history book, I would get the best quality copies available.

Copyright law has become quite complex, and so I would recommend reading Lawrence Lessig’s book Free Culture and Jason Mazzone’s book Copyfraud in hopes the Museum will reconsider its policy. Screening the NFB film RiP! A Remix Manifesto would be helpful too. You can also contact Creative Commons Canada directly for more information.

I’m not a lawyer, just a Canadian fiction writer with an interest in history, copyright and free culture, and you should be aware that I will publishing a version of this email in my blog. As I am hopeful that [the Museum] wants to fulfill its stated objectives, I will first remove identifying references from this article. I do very much hope that your museum rethinks this issue that is so important to us all.

Regards,
Laurel L. Russwurm

C-11 ~ Criminalizes TPM circumvention without Warning Canadians

Before making it illegal to circumvent TPMs, shouldn’t Canada make it mandatory for manufacturers to warn Canadians that the media and devices we buy use TPMs?

Especially since most Canadians don’t know what TPMs are?

Canadians don’t recognize TPMs.

• We think we are doing something wrong when we are prevented from copying digital photos we have taken of our own kids, with our own digital camera, to the hard drive on our own computer. We can’t tell if there is something wrong with the camera, the cable, the flash drive or the computer. It would never occur to us that the software has decided we are infringing copyright — especially since we aren’t.  Our ability to copy our own digital content can be prevented accidentally or deliberately with TPMs (Technological Protection Measures).
• We don’t know the reason we have so much trouble trying to burn our home movies onto a DVD for Granny is because TPMs prevent the software from working properly.  When TPMs (more commonly called “DRM” or “digital locks”) are added to our media and our devices the functionality is often degraded. In other words, to protect the intellectual property from consumer customers, TPMs that may break the thing are often considered an acceptable risk.
• We don’t know that our legally purchased DVD won’t play in our own DVD player because it is region encoded for a different region, another deliberate TPM.   Consumers accept “region encoding” as a natural limitation of the technology, because we knew it was a physical limitation on VHS and PAL videotape formats.  But the reality is that a DVD would play in any machine except that region encoding TPMs artificially prevent consumers from playing the DVDs we purchase on the device of our choosing.
• We don’t know that the DVD we legally purchased will not play on the digital device we own if it has a Free Software Operating System (gnu/linux) without first utilizing a player like VLC to circumvent the manufacturer’s TPMs — DRM or “digital locks.”  Bill C-11 will make software like VLC illegal because it can be used to circumvent TPMs.
• We don’t know that we can’t save the YouTube video letter our grandchild uploaded for us because YouTube’s TPMs prevent this.
• We don’t know that when we’ve upgraded the hardware on our computer one too many times, the reason that our “improved” computer suddenly became a brick and simply will not work any more is because TPMs prevent it until we buy a new copy of the software. Bill C-11 will make it possible to prevent consumers from installing free software on our own computers.
• We don’t know that the Nineteen Eighty Four eBook we bought from Amazon disappeared from our Kindle because Amazon was simply exercising a is a deliberate TPM (Technical Protection Measure), more commonly called DRM or “digital locks.”
• We don’t know that the printer ink cartridge isn’t actually empty, but that the TPM has decided it is.  Sometimes because we have made a certain number of copies, or maybe because there is a TPM which tells the printer that the cartridge can no longer be used after a certain date.  So some printer cartridges can’t be refilled without resetting that date – which constitutes circumventing TPMs.
• We don’t know our scanner isn’t scanning those photographs because they have been “copy protected” with TPMs.  Even though the photographer has (a) died (b) gone out of business or (c) long ago deleted the content from their drives.   Further, we don’t realize that if we do find a way to scan the only copy of that milestone photograph of our loved one we will be circumventing TPMs, which will be illegal once Bill C-11 passes into law.

Not all TPMs are digital.

Some devices are assembled using specialty screws that can’t be turned with standard screw drivers.  So you must possess the proprietary screwdrivers just to open it up.   With Bill C-11 these screw drivers can be considered TPM circumvention devices, which will become illegal if Bill C-11 passes. Computer recycling depots, AV departments in schools and libraries, and of course repair shops across Canada will have to be very careful not to repair or refurbish any device with TPMs.  It will be safer to throw many goods out rather than risking breaking the law to make repairs.

The Copyright symbol is a TPM.  Overlaying the words “Do Not Copy” or some other kind of watermark on an image is another kind of TPM.  Very often both of these TPMs are used in the commission of copyfraud.   Creative work that was never “protected by copyright” (like the works of Shakespeare) or that have already entered the public domain (like the works of Oscar Wilde) are not subject to copyright.   Anyone can use them, because the monopoly has expired.  But there are a very large number of websites set up to sell copies of public domain art etc that claim copyright to which they have no right.

If copyright infringement is theft from the copyright holder, then copyfraud is theft from the public.  Making copyfraud an offence would actually modernize Canadian copyright law, but as it stands, Bill C-11 will actually protect copyfraud, at the expense of Canadians.

TPMs effectively allow machines authority over human behaviour, and there is no appeal.  How do you convince the hardware or software that it is in error?

No one tells us these things even *have* TPMs.

A great many of the problems we currently experience with our digital media and devices are caused by TPMs/DRM or “digital locks.”

Manufacturers place Technical Protection Measures on our media and devices in order to control our use of these things we own.  They don’t want to draw attention to this; if they did, consumers might choose not to purchase the goods.  As you can see from the examples shown, TPMs are capable of far exceeding “copy protection” and in many cases TPMs are currently employed to artificially impair the media or device to force consumers to upgrade or buy a new one.  Which sounds rather like fraud to me.

What most consumers see is that something is broken.  Some of us will take the digital goods back to the retailer, who will do their job and sell us a new one.  Never mind that adding material that might be repaired but for Bill C-11 — perfectly good digital equipment — to our landfills is hardly in the public good.

Before Bill C-11, if the TPMs manufacturers added broke the goods we purchased, we could repair them.  If the TPMs prevented us from accessing media that we were legally entitled to access, we could circumvent them. Or get someone who knew how to circumvent or repair them for us.  Bill C-11 will make this illegal.

You can’t see most TPMs with the naked eye, so we can’t even tell if it is there because most TPMs are hidden.  Which is why:

Bill C-11 Must Add Warning Labels

Citizens must be told:

1. that TPMs are present, and
2. what they do

Citizens can not be reasonably expected to follow the digital lock provisions of Bill C-11 without the inclusion of mandatory warning labels informing/explaining TPMs to consumers on “protected” media, including:

• movies,
• music,
• games,
• software,
• eBooks,
• images,
• services,
• etc.

and on “protected” digital devices such as:

• Computers,
• DVD players,
• CD players,
• game systems,
• eReaders,
• cell phones,
• cameras,
• digital drives,
• scanners,
• etc.

C-11 criminalizes circumvention of TPMs we don’t know are there

If Bill C-11 is passed without also mandating manufacturer warnings that inform consumers of the existence and parameters of the TPMs that we may not legally circumvent simply in trying to make our own digital media and devices work,

Bill C-11 will make all Canadians into inadvertent criminals

There is still a tiny bit of time left to contact our MPs and let them know we don’t want them to pass this Bill C-11 as it is There is still time to say “No”

Theft by Copyright: C.T. Talman vs. W.S. Hartshorn

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:

Edgar Allan Poe photographed by W.S. Hartshorn, 1848

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

Wikipedia: File:Edgar Allan Poe 2.jpg

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.

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post script

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).

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Those of us who can’t afford a surviving 1st Edition of Poe’s 1827 poem Tamerlane can read it online here.

Image Credits
W.S. Hartshorn’s original daguerreotype photograph of Edgar Allan Poe
was copied by C.T. Talman in 1904 and later shared by The Dark Clown

Happy Earth Day

home sweet home

Between trying to get my debut novel, “Inconstant Moon,” ready to launch, computer technical difficulties, and the current federal election (I’ll be posting an #elxn41 piece to Oh! Canada later today) it would have been easy to forget all about Earth Day.

The weather is fairly miserable this year, but it is still an important day. One of the common themes in science fiction read in my youth was the caution that if we mess up the planet irreparably, without space travel humanity will be, ahem, screwed. Personally, although I am in favor of space travel, it is still important not to destroy this planet. Even if I could move to Mars or the Pleiades with Desdemona, I’d still want the option of coming home to visit.

Earth is my home.

As it is home to other forms of life.

One day a few years back I found a baby chipmunk stumbling around, wandering into the street.  A closer look showed that his eyes weren’t open yet.  A few days before I’d seen a dead chipmunk on the side of the road, so it was a very good guess that this little guy was an orphan.

So I brought him home.

Amazingly we managed to raise him.  I had been advised to start him on goat’s milk with acidophilus to help digest it, and that did the trick. As he got older, I fed him husked sunflower seeds and grass &tc. but his favorite was tender dandelion greens, which fortunately were not covered in pesticide in my yard. So Chippy Baby grew up.

I got him a large cage so he would be able to build muscle so that when released he’d be able to run away from predators and survive.

Chipmunks live underground, but ours was raised in a hamster cage with a climbing tube.  He could sit at the top of his cage and look around, secure from being picked up by human hands.

When he told us it was time to go, we released him.

Happily he survived, and can be seen checking on us from on high.

Happy Earth Day.

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Image Credits
“Earthrise” NASA image photographed by astronaut Bill Anderstaken on Apollo 8 mission. All NASA photos are released into the public domain.

All other photographs are by laurelrusswurm released under a Creative Commons Attribution 3.0 Unported (CC BY 3.0) License

“Inconstant Moon” update ~ CC by-nc-sa

Glyn Moody directed me to an article taking aim at non-commercial Creative Commons licenses, miscellaneous factZ: Creative Commons and the Commons.

Rufus Pollock makes some interesting arguments, and points out a possible problem in the Creative Commons organization: that it is an independent hierarchical organization, and unaccountable to anyone, really. Still, what was most ironic to me was his interest in removing data(base) material from the public domain (which impacts on his work) while advocating elimination of the noncommercial option from CC licenses (which impacts on mine).

my choice

As a writer about to self publish my first novel, I have considered carefully, and chosen to license it with a Creative Commons Attribution-Noncommercial-Share Alike 2.5 Canada, or CC by-nc-sa.

This license allows any type of remix desired save commercial. I think all cultural material should be absolutely free for personal use.  Personal use must be sacrosanct for culture to grow.

Since I’ve been mulling over and learning about copyright over the past few years, I’ve become an advocate of free culture. I’ve learned a lot, beginning with the copyright consultation submissions made by thousands of Canadians (who were led to believe that the government was interested in what citizens felt to be important in any new copyright law*), and from reading, and having online discussions with many people.

challenging perceptions

Drew Roberts is a multi-disciplinary creator who passionately champions free culture, going so far as to publish his NaNoWriMo novels as he writes. His credo is “Free the Art and Free the Artists.” Although I admire his bravery, for myself, no one reads a word I write until I am satisfied with it. In his inimitable way, the eminently reasonable Drew has gently encouraged me to release Inconstant Moon without the non-commercial restriction.

I’ve also had discussions with copyright abolitionist Crosbie Fitch, who naturally looks askance at the very idea of self publishing, as he feels that all published art and creativity rightfully belongs to everyone, and should be firmly in the public domain. Not that he thinks artists should be denied the opportunity to make a living, just he thinks that they should be paid properly first, but once art is released into our culture, it should be free to copy.

Both Drew and Crosbie are highly intelligent, informed, committed and passionate about the issue, and I’ve learned a great deal from them both. But still, these are radical ideas. Change is difficult. It takes time for new ideas to be understood, and take root. So like many other independent creators today, I am feeling my way in an attempt to decide what combination works for me.

Yet I believe very strongly in the importance of the public domain and the commons.

I may at some point decide to venture the release of a novel without the noncommercial restriction, but not this time. The law of my land (Canada) places all IP under full copyright by default, and contrary to what our American neighbors contend with their absurd USTR propaganda, existing Canadian copyright law is both “stronger” and more restrictive than is good for our culture. Canadian culture is fighting its way to freedom from all the restrictions imposed by both corporate special interests and copyright collectives wanting to lock down our culture even further through the imposition of bad laws and DRM.

If creative commons licensing did not exist, the only choice available to me as a creator would be to publish my novel under full copyright restrictions. I don’t want that. But again, I am trying it on, seeing what’s what, whistling in the dark.

Lately there has been talk floating around that Creative Commons licensing is too confusing. It is certainly more confusing than outright copyright abolition would be. Some people feel more strongly about various elements of Creative Commons licenses. Like Rufus Pollock, many people think that the Noncommercial restriction should be dropped altogether. Others, like @openuniverse, believe there is no place in the Creative Commons for a “no derivatives” restriction. Others feel share-alike is too restrictive.

Rufus suggests that since most Creative Commons licenses are designated noncommercial, we should be dropping it altogether. He thinks people are dazzled by the Creative Commons “brand” and thinks that it should all be perfectly interoperable. But what Rufus doesn’t look at is the only way for all IP to be perfectly interoperable is Crosbie’s way: through the abolition of all forms of copyright. Crosbie is perfectly correct: the only perfect cultural interoperability is to be found in the Public Domain. Because for some, even a compulsion to provide attribution is too onerous.

[I confess I am looking forward to sinking my teeth into Crosbie's "The 18th Century Overture · A Crescendo of Copyright, Natural Finale and Reprise" as soon as this novel distraction is in hand.]

The point is, it shouldn’t be up to Rufus or anyone else to tell me how I can or cannot release my own creative work.

Existing copyright has long since ceased to be beneficial to creators (if it ever really was). And it is because existing copyright copyright law is both dictatorial and stifling that creators have begun to reject it. Creative Commons licensing offers a work-around that allows creators to get free of the yoke of copyright.

The reason Creative Commons is so successful is precisely because it offers all these choices. It is the variations in licensing that gives creators the confidence to release our work in this fashion, in the way in which we feel most comfortable, rather than allow the status quo of full copyright.

Something to remember is that once work is licensed, the license can only be altered to make the work more free. So in many ways, it seems more natural to begin with a more restrictive license. After all, it can always be lightened later.

As beneficial as I believe Creative Commons licensing to be, my concern is that restrictive license provisions will remain in place as long as the current copyright terms. Which can only be a disaster for the Public Domain.

And one of the most harmful aspects of existing copyright law is the ridiculous terms. It shouldn’t outlive the creator, nor should it be transferable, particularly to inhuman corporations. That’s a large part of why copyright has become such a problem today; corporate interests do not coincide with creator interests.

So I’ve decided to put my money where my mouth is. I really don’t know what will happen.

Although I believe it to be good, “Inconstant Moon” may or may not generate income.

Either way, it is my test case. Regardless of how well it does,

“Inconstant Moon” goes into the public domain 5 years after publication.

I want to do this for two reasons.

First: because I truly believe that a strong and healthy public domain is essential for all of our shared culture as human beings.

But my second reason for emancipating my work is far less altruistic: I want to give my creative works a fighting chance of surviving me.

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* The later unveiling of Bill C-32 indicated a total disregard for the feedback provided by Canadians in the Copyright Consultation.

Image Credits
All Creative Commons logos licensed by Creative Commons with a Creative Commons Attribution 3.0 License

Inconstant Moon banner and cover art Creative Commons Attribution 3.0 Unported (CC BY 3.0) lothlaurien.ca

My Submission to The Legislative Committee on Bill C-32 (CC32)

January 31st, 2011

To: The Legislative Committee on Bill C-32 (CC32)

As a writer, one of the people copyright law is supposed to serve, I’m concerned with effects of Bill C-32 on my ability to use technology to create and disseminate my work.

I was willing to trade my creative sovereignty for the opportunity to have my work produced and distributed on television when I was young, because it was the only game in town. That was then. Today, advances in digital technology and the Internet have made a host of new options available to creators. And even though Canada’s current copyright law is problematic, Creative Commons has introduced work-arounds which make it possible for creators to release our “Intellectual Property” as we see fit.

Canada’s current copyright law is harmful to me as a creator, and there is evidence that it is harmful Canadian culture as a whole from aspects like copyright terms that are so long they are detrimental to both creator and public interest. Yet Bill C-32 doesn’t reduce copyright terms or protect the creator’s right to share.

There is also no justification for the existence of Crown Copyright in a democracy. Why doesn’t Bill C-32 follow the good American copyright example of releasing of government funded work directly into the public domain (on the understanding that taxpayers have already paid for it)?

Sharing
Culture grows through sharing. It used to be Canadians bemoaned the lack of a Canadian “identity.” This cultural void was certainly tied in to the limited exposure Canadians had to our own culture since a few corporations controlled all of our culture.

Today’s combination of hardware, software, media devices, and the Internet makes it possible for creators to create and distribute our work directly to our audience. The new technology has been an incredible boon to both creators and consumers.

The independent Canadian music industry is ushering in an incredible golden age, in spite of the CD levy which penalizes independent creators. Canadians are leading the world with Independent music production and distribution. And nobody is looking for a “Canadian Identity” anymore since Canadian culture is thriving– through sharing– on the Internet. For the first time in more than half a century, Canadian musicians don’t have to sign away the rights to their music to get recorded and distributed.

Special Interest Groups
The major record labels find this a problem because as more musicians choose independence, the established record industry loses market share. CRIA used to own 99% of the recording industry. Now they’re lucky if they have 70% of it.

It’s a challenge for corporations. Historically it would have led to corporate adaptation or demise. Today’s conglomerates have instead chosen to influence legal change.

But copyright law should not be employed to force creators into unsatisfactory arrangements in an attempt to prop up an industry unwilling to adapt.

What is Copyright Law Supposed to Do?
Isn’t copyright supposed to recognize and support the creator’s authorship?

Where did the idea that copyright law was somehow responsible for monetizing the ‘intellectual property’ industry came from? It makes no sense at all. Isn’t it customary for Industry to establish business practices through negotiations and contracts?

If we are to accept this as a valid premise, and proceed to impose Bill C-32 legislation that runs contrary to societal expectation, why stop there? Wouldn’t it be reasonable to apply the same thinking to all other Canadian business endeavors? Instead of contracts and negotiation, the government could legislate precise terms for all industries. The government could set the rates of pay for each job, define the responsibilities. Is that what we want? I suspect we don’t. Why is copyright treated this way?

Copyright Control
The needs and best interests of corporations are almost always very different from the needs and best interests of human creators. Copyright should not be transferable, certainly not to corporations. At most, corporations should be limited to licensing copyright for a limited time. A great many of the current problems with copyright law are directly attributable to undue influence of corporations and copyright collectives. We have seen little or no input or consideration for the two most important copyright stakeholders: creators and citizens.

Copyright Collectives
Like corporations, the interests of copyright collectives can differ from the interests of the people who are members. But if membership needs would be better served by removal/reduction of the collective, the existing collective will work to ensure continued existence, even if it is contrary to the best interests of the membership.

Yet some copyright collectives have been vocal in claims they speak on behalf of their entire membership, while others have claimed to speak for all Canadian authors.

There has been copyright collective support for both the CD levy, as well as expansion of it, as well as opposition to the expansion of fair dealing in Bill C-32. That isn’t surprising because the collectives benefit financially from both of those misguided initiatives. That is my perspective as an independent writer, consumer and parent.

Technical Protection Measures, Digital Rights Management, Digital Locks
Regardless of what term you choose, digital locks should not fall under copyright jurisdiction for the simple reason that creators have no control over them.

As written in the current incarnation of Bill C-32, technical protection measures are the most important provision.

This effectively strips all authority from creators. Because creators– and most especially independent creators– don’t hold the keys to these locks.

As an independent writer I oppose digital locks that can be used against me.

Digital locks can be employed to prevent my utilization of digital media, devices or Internet protocols to distribute my work as I see fit.

The freedom technology has lately made available to creators will taken away by Bill C-32.

As a consumer I can’t support a law that allows digital locks to prevent citizens from legitimately using media and devices. It should be illegal for digital locks to impede access to digital material that is in the public domain.

Made In Canada?
Canadian cultural sovereignty should belong to creators, not corporations.

There have been some very persuasive arguments that Bill C32, like Bill C-60 and Bill C-61 before it, has been written to appease our American neighbors. In itself, sacrificing Canadian sovereignty to appease foreign interests would be problematic enough if Canadian copyright law were made to conform to the contours of the American DMCA.

Worse: Bill C-32′s digital locks go far beyond the terms of the American DMCA provisions, so it would not simply be a case of leveling the playing field, Bill C-32 as will effectively put Canadians at a distinct disadvantage.

Iceland is contemplating putting all Icelandic literature online to foster and spread their culture. I submit this would be a better model for copyright emulation than the American DMCA.

Unintended Consequences
The American DMCA contains provisions for mandatory adjustment every three years, and over time it has in fact been lightened up as unintended consequences have been addressed. Yet Canada’s Bill C-32 simply contains a suggestion to look at it every five years. In terms of the speed of digital change, 5 year suggested revision term is horrendous. Bill C-32 would require annual review as a feature.

Independent Creators
Copyright needs to be simple enough for all citizens to understand, because more and more people are participating in our shared culture. Many artists believe things must change. The existing law is too strong, but rushing to enact legislation as flawed as Bill C-32 because we are tired of copyright is not the answer.

There are many reasons to use Free-Libre Open Source software for our endeavors. Yet the primacy of digital locks will impede access to such software for all of us.

I want to be able to make my work freely available. My right to do so should not be sacrificed to special interests. Canadian copyright law must support all Canadian creators, even those of us who believe in the importance of sharing.

Conclusion
I cannot support Bill C-32 as it is.

Perhaps I could if you were to remove TPM/DRM/Digital locks altogether. Some people think amending the Bill to permit circumvention for lawful purposes would solve the problem. I disagree. I don’t think consumers should have to circumvent digital locks. If digital locks are applied, it must be up to the parties holding the keys to guarantee the locks will be opened for lawful purposes.

Thank you for the opportunity to be heard. I will of course post my comments to my personal blog. [ http://laurelrusswurm.wordpress.com/ ]

Regards,
Laurel L. Russwurm

CC: The Right Honourable Stephen Harper email: Harper.S@parl.gc.ca
CC: The Honourable Tony Clement email: Clement.T@parl.gc.ca>
CC: The Honourable James Moore email: Moore.J@parl.gc.ca
CC: The Honourable Michael Ignatieff email: Ignatieff.M@parl.gc.ca
CC: Legislative Committee Members
(Charlie Angus email: Angus.C@parl.gc.ca , Sylvie Boucher email: Boucher.S@parl.gc.ca , Peter Braid email: Braid.P@parl.gc.ca , Gordon Brown email: Brown.G@parl.gc.ca , Serge Cardin email: Cardin.S@parl.gc.ca , Dean Del Mastro email: DelMastro.D@parl.gc.ca , Marc Garneau email: Garneau.M@parl.gc.ca , Daryl Kramp email: Kramp.D@parl.gc.ca , Mike Lake email: Lake.M@parl.gc.ca , Carole Lavallée email: Lavallee.C@parl.gc.ca,
Dan McTeague email: McTeague.D@parl.gc.ca and Pablo Rodriguez email: Rodriguez.P@parl.gc.ca )
CC: Harold Albrecht email: Albrecht.H@parl.gc.ca

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[Image Credit: the copyright jail from Question Copyright Sita Distribution Project remixed with my “Inconstant Moon” cover art by laurelrusswurm]

publishers, writers and rights, oh my

The Internet has changed the world faster than any other technological revolution in history.

corporate vs. creator copyright

When that obsolete stuff known as videotape was new, it, too, wreaked havoc. Suddenly movies and tv shows were being released on the new medium. But the big media companies felt no compulsion to actually share the new found wealth with the creators.

Some creators took issue with this, and fought it out in court.   And courts duly ruled that creators were entitled to compensation from these new revenues.

Having written the music for the Disney classic “Lady and the Tramp,” Singer/songwriter Peggy Lee was at the forefront of the fight. Urban Legend has it the Disney company did not take the court decision very graciously and vowed not to release the popular children’s film again until after Peggy Lee’s death.

It doesn’t matter if the legend is true or not, it would be a reasonable business practice; a sound corporate strategy. Suppressing the work warns other would-be litigants about the economic risk of asserting their legal rights with the added bonus of imposition of artificial scarcity which inflates the value of the product when finally released.

To me it illustrates the difference between corporate and creator agendas, and in particular why corporations should never be allowed to hold copyright. Creative works of any kind, what human beings call art, are valued differently by human beings, while to a corporation, the only value of art is the bottom line.

enter the lawyers

Here in the Twenty First Century, Intellectual Property Law has become the “sexiest” area of the legal profession because it is both one of the most lucrative areas of law and the source of mind boggling power.  IP law has been changing the world.

The primary changes to copyright and lawmaking have been driven by the big media interests.

Music, movies and television “rightsholders” have been driving the changes since those are some of the most lucrative forms of intellectual copyright product.

All the changes to Copyright Law over recent decades have been made to benefit corporations at the expense of both creators and culture; the rules of copyright have been quietly becoming madder and madder (as in the hatter).

writers and publishers

Ironically, although copyright began to provide incentive for the creation of literary works by making it possible for good writers make a living, the publishing industry has not been in the forefront of the current copyright war. The American book publishing industry was built on commercial piracy, more properly called bootlegging.

In the early days of twentieth century paperback novels sold for less than a dollar and writers were paid only a few pennies a word.

Nearing the end of the century I was surprised to learn that writers were still being paid mere pennies a word although paperback novels sold for upward of ten dollars.

The justification was always the great expense borne by the publisher. Printing and distribution costs rose with inflation while payment to the creators did not keep pace. Publishers impressed upon writers that demanding better pay would make books too expensive and lead to fewer books sold. Physical costs were tangible and so always managed to take precedent over the writer’s intangible creativity.

The 21st Century we have seen the introduction of ebooks. Digital books differ from physical books in one crucial way: they cost next to nothing to copy.

Yet customers have been conditioned to spend on the order of twenty dollars for a physical book. Naturally publishers have been happy to sell the average ebook in the ten dollar range. After set-up production costs are negligible, making the revenue stream approach 100% profit.

Amazingly, these same publishers begrudge any change in the royalty payments to the authors. Instead of sharing this good fortune with their writers, the golden egg laying geese of the publishing industry, most publishers have been trying on the same power grab movie companies tried with video: laying claim to legal rights they had not been granted.

One of the most compelling reasons I never seriously considered placing my novel with a traditional publishing house was the problem William Styron’s heirs had with the publisher.

Mr. Styron’s family believes it retains the rights, since the books were first published before e-books existed. Random House, Mr. Styron’s longtime publisher, says it owns those rights, and it is determined to secure its place — and continuing profits — in the Kindle era.

The discussions about the digital fate of Mr. Styron’s work are similar to the negotiations playing out across the book industry as publishers hustle to capture the rights to release e-book versions of so-called backlist books.

–New York Times: Legal Battles Over E-Book Rights to Older Books

That was my tipping point. Would you trust this industry to do right by you?   I wouldn’t.   Given the choice, I’m not willing to hand over my creative work to traditional publishing. Particularly since this same digital revolution gives me choice: technology has made self publishing a valid and viable option.

The arrogance of publishers to assert claims to ebook rights by default– simply because they’d published traditional physical paper version– is ludicrous.

At issue is who holds digital rights in older titles published before the advent of ebooks. Publishers argue that the ebook rights belong to them, and authors and agents respond that, if not specifically granted, the digital rights remain with the author.

–The Guardian: Publishers rage against Wylie’s ebook deal with Amazon

On Friday (June 23rd, 2010) the Wylie Agency shook the world

by taking a stand for authors and against the publishing houses. (And for themselves, never forget that. Wylie has launched a whole new business here; this may well be straying into anti-trust waters.)

This Literary Agency is setting up the Odessey Books imprint under which they will release older works as ebooks; specifically books whose digital rights have not been signed over to the physical publishers.

The publishers who believed themselves entitled to this copyright are of course greatly outraged that works they believed safely under their control has been snatched out from under them.

Odyssey certainly appears to already be a going concern, with a set of clean simple text based digital book covers for the classics they are releasing exclusively through Amazon’s Kindle for the first two years.

Good for Wylie, good for Odyssey.

From a consumer’s point of view I have reservations. I only looked at the pricing for one book, so the prices may vary, but I have to wonder how the ebook version of a books could cost more than the physical paperback version also sold through Amazon. Yes, the ebook version is sleek and lightweight, but the Kindle is after all a reader laden with DRM that I understand prevents copying for both format shifting and backups. In other words, the ten dollar ebook will be locked inside a brick if the Kindle breaks down or becomes obsolete. But that’s another story.

From an author’s point of view, there may be financial problems. Odyssey doesn’t seem to be offering authors such a great deal.

“Yes, there are costs of creating a digital version, but offering a 25, 30% royalty is insulting.”

~Kassia Krozser, Today in Publishing: A Skirmish

Although I don’t believe the Guardian’s assertion that Wylie’s Amazon deal brings the end of the publishing world nigh, I certainly do think this is a good thing.

It sounds to me that the Wylie Agency is stepping in and performing the service that that publishing houses should have performed for their clients. Adaptability is key to any business long term survival. The total control they have long held seems to have seduced the publishing industry in much the same way it has the recording and movie companies into believing that they deserve control of these copyrights.

this story can help start the copyright conversation

Technology has changed the world indescribably, and corporations have exerted untold amounts of pressure on lawmakers the world over to legislate anti-progress in the form of copyright laws and treaties.

@tonycurzonprice rt @tom_watson
DRM lobbyists are back in parliament. they want even more.

The changes being made to the world in the name of copyright are still largely unnoticed by most people. Demographically young computer savvy people are among the most knowledgeable sector of society about these issues, but they are a minority. And the fact remains that the whole world NEEDS to be part of the conversation. Allowing corporate interests to control the conversation is increasingly leading to greater and greater imbalance.

copyright and the public domain

I’ve never understood how anyone besides the creator is entitled to the proceeds from copyright. License the work to the publisher sure, but giving them copyright? No legal system should ever have allowed this. Copyright was meant to encourage creation for the good of culture.

In the beginning there was the commons. Ownership of the songs and stories of belonged to everyone. Story tellers preserved and shaped the culture, and in return society made sure they could make living at it. Minstrels telling a good tale or singing a good song were fed. The introduction of the printing press changed things in that the words of the writers could now be spread and shared through this artificial means. Copyright is an artificial right assumed by society in an effort to encourage creators to continue to create by controlling the monetization of their work for a finite period of time. When the term was up, the work went into the public domain so that all of society could get the benefit.

tweets from ORGcon

The UK Nonpartisan Open Rights Group, working to fight the UK’s ill advised hastily passed Digital Economy Act, today held #ORGCon. Cory Doctorow tweeted highlights. Copyright and the Public Domain were central to the convention, and much of what @doctorow and other attendees shared online, particularly comments by keynote speaker James Boyle provide some powerful background for this article:

James Boyle

tweeting at #orgcon
@doctorowsez:

rt @thepublicdomain
aka James Boyle keynote at #orgcon

• For the 1st time in human history, all the works produced by our contemporaries are inaccessible to us
• Paradox: absent Creative Commons etc, none of us will be able to share/use/mix anything made by our contemporaries in our lifetime
• Most works exhaust all commercial viability in 5 years
• Prior to 1978, 85% of works went into PD after 28 yrs b/c most authors didn’t think it was worth renewing copyright
• Of works in British Library > 28 yrs old, only 3-5% are commercially available
• Retrospective copyright extensions cut us off from our own culture to the benefit of no one
• If industry norms on copyright clearance were given as exam answers in law school, you’d flunk out
• Why not say “Hell with it. Copyright is dumb… ignore it.” Because culture’s viability shouldn’t be dependent on lawlessness
• Copyright maximalists have created a generation of lawbreakers, some guilty, some joyful. This is a great harm
• Prior to GOOGLE Book Search, books had been transformed into the least accessible place to put information

rt @owenblacker

Our educators’ understanding of copyright is akin to playground understanding of sex

rt @footage
Baby Boomers can legally share/use/mix much of their own history after 28 yrs. Generation X & Millennials can’t. Copyright discriminates.

rt @rob_jewitt:
The odds of copyright incentivising dead authors is pretty low

@elmyra tweets:

• Jennifer Jenkins: What used to be considered creativity is now thought of as theft.
• We’re the first generation in history to deny our own culture to ourselves.
• The Digital Economy Act was the result of the biggest lobbying operation @tom_watson (not speaking on behalf of his government) has seen in his political life.
• “An entire generation has given up the idea that breaking the law is wrong”~ James Boyle

For further first person #org coverage read:
Elmyra’s ORGcon 2010 Livejournal

rt @doctorow: Until the tenth Century a musicians just needed to play.
Until the 19th century musicians just needed to be literate.
In the twentieth century, musicians needed to be geeks,
But in 21st Century musicians need to be lawyers.

These laws will force all of us to be lawyers.

Everyone from professional media makers to children putting together school projects.

The United States has enacted the DMCA. The UK the DEAct. Canada has tabled Bill C-32, copyright legislation misleadingly titled “The Copyright Modernization Act”. And the secret international copyright treaty A.C.T.A. seeks to subjugate the copyright laws of the whole world.

Copyright is no longer simply an area of special interest to publishers and writers. Changes being made in the name of copyright effect culture and the the way we access culture in every country of the world.

We all need to be part of the conversation.

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Image Credits: spider web used under a CreativeCommons Attribution 2.0 Generic license (by) 2004 cybershotking
Fate of videotape (en:obsolence) © 2004 by Tomasz Sienicki used under a Creative Commons Attribution 2.5 Generic license
William Styron, Santiago, Chile, 1988 photo by Marcelo Montecino Creative Commons Attribution-NonCommercial-ShareAlike 2.0 Generic
Wikipedia cropped cinema image of Peggy Lee, used under the public domain in the US and fair dealing in Canada

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