Category: Legal, Laws, and Regs

Categories
Copyright

Inspiration is not derivation

Recovered from the Wayback Machine. 

I have branded myself outsider, if not outcast, in some weblogging circles by not embracing Creative Commons without hesitation, and not being 100% behind the anti-copyright/pro-public domain movement.

(For what it’s worth, I am behind Imaginative Pastures.)

Scott Andrew LePera wrote an excellent posting saying very nice things about my Mockingbird’s Wish. His post also highlighted what I feel is the disconnect between what I’m trying to say, and what the folks who have been disagreeing with me are hearing. Scott wrote the following:

The Mockingbird’s Wish is itself a derivative work, having roots in wishbringer mythology passed down through oral tradition from numerous cultures. The theme is a familiar one: foolish animals go before gods and spirits to ask for wishes, often getting their just desserts in the end. Rudyard Kipling drew heavily on the same themes in his Just So Stories. I’ve never read Joseph Campbell, but I’ll bet he’d have something to say about the character of the wishbringer.

Shelley has, unintentionally or not, done a bit of rip/mix/burn literature.

I’ve never heard of ‘Wishbringer’, but the concept behind god-like beings granting wishes to foolish creatures is as old as time itself, and forms much of our folklore and mythology, as Scott points out. However, I differ with Scott when he says that I derived my story from Wishbringer. I think what he meant to say is that I was inspired by a genre of writing, of which Wishbringer is most likely a part of. And that’s the heart and soul of the miscommunication.

Dictionary.com defines derivative as:

 

1. Resulting from or employing derivation: a derivative word; a derivative process.

2. Copied or adapted from others: a highly derivative prose style.

What’s even more telling is some of the synonyms for derivative: plagiaristic, rehashed, procured, second-hand, uninventive, unoriginal.

Unoriginal?

Mockingbird’s Wish is neither a copy, nor an adaption of a specific work, and I certainly hope it was not uninventive, unoriginal, and second-hand. No one story or tale was in my mind when I wrote it, and the style is, I hope, uniquely my own. However, the inspiration for the type of story, and the concept of using a parable to make a point arises from every story and tale based on folklore and mythology I’ve read over the years.

In Mockingbird’s Wish there is a little Hans Christian Anderson, and a smidgeon of “Through the Looking Glass”, and a tiny bit of Navaho legend, an atom or two of a story I read years ago and can’t find, as well as a dab of Greek mythology, a hint of the King James Bible, and more than a little general faerie god-motherness thrown in. It’s inspired, in part, by all of these influences, and more, but it isn’t a derivation of any of them. The closest you’ll come, perhaps, is that I mention the nightingale in the story, and that’s the focus in Anderson’s classic The Nightingale. But then, Mockingbird’s Wish focuses on birds, which are the subject of Alfred Hitchcock’s classic movie “The Birds”, so if my work is a derivation of Anderson, one could also say it’s a derivation of Hickcock, too.

The point I’m making is that there is a world of difference between copying or adapting a work from another and creating an original work based on inspiration. No matter how modified, or beautiful, or grand, the derivation is and will always be a copy, while the inspired work is, and will always be, an original work. This isn’t to say that derived work is “bad”. But a derived work is dependent on a specific work that, if it had not been created, the derived work would also not exist. Inspired work is not dependent on any one work or even any one artist.

Copyright laws provide controls on derived works, but not inspired works. When a work enters the public domain, it can be used for a derivation, but a work can provide inspiration regardless of whether it’s copyright protected or not. This is one of the points I’ve been trying to make, and one that seems to keep failing — to many of the people who I disagree with, there is no difference between the two, while to me, there is a world of difference.

Another point I’ve been trying to make, and one that has even less acceptance if that’s possible is that regardless of copyright, there exists another element that should impact on what we do with another’s work: respect.

An example that keeps being brought up is Samuel Beckett and his plays. Beckett, perhaps more so than most playwrights, had tightly held notions about how his plays were to be produced, including blocking two plays because female actors were brought in for male roles. Some would say that Beckett’s strict controls inhibited other’s interpretation of how the play should be produced. Scott wrote:

 

I simply disagree with the notion that any creative works are so important that we must have laws that state they cannot be interpreted in any other way other than how the author intended. Things are interpreted, and reinterpreted. It’s the way our culture works. Even our own Constitution is constantly being reinterpreted, sometimes with grave consequences.

 

Scott has a very good point, but then, so did Beckett. Beckett’s view was that he was ‘inspired’ to write a play that had a specific message, and someone else’s interpretation of his play could also change the message, and this changes the soul of the play itself.

Ultimately the question of inspiration compared to derivation compared to interpreation reduces to: does the need of the new artist to re-interpret or create a derivation of the original work take precedence over the need to respect the original artist’s wishes? This is a question that can never be answered by copyright law because it is an issue of respect as it is balanced agains innovation.

This question, or it should be, the question asked every time a person want’s to re-interpret another’s creation. It is outside my comprehension how an innovator who is so moved by a piece of work to want to apply their own interpretation on it, not also be moved by the original artist’s wishes. If they are not, then their arrogance can’t help but obscure the original artist’s message and rather than add to the work, they detract from it.

However, if the innovator does ask themselves this question, and applies their innovation with respect to the original artist, carefully, delicately, adding their own message without destruction of the original artist’s, then the work can be enhanced. But only a person who can see beyond their own needs has the empathy necessary to merge their view with the original artist’s view.

I think my biggest concern about all of this is that we seem to be a society that is progressing towards an attitude that it’s okay to rip/mix/burn with no thought of the consequences, the results, the original artist’s views or work, or anything other than our own desires to do what we want, when we want. Cheap hacks rather than inspired creations.

Scott wrote at the end:

 

And let’s face it: sometimes the derivative is better. Or at least more consumable.

Not sure how to respond to that, except to quote what Michael Hanscom wrote about Mockingbird:

 

I’ve always tried to do my best to sing my own song. Some days I do better than others, of course, and it’s easy to get lost in the chorus, but at least I can always keep trying.

(I said in a previous posting that it was the last posting on this topic; I guess I lied. But I was inspired to write this when Mockingbird’s Wish was called a derived work. )

Categories
Copyright Legal, Laws, and Regs

Freedom to innovate

Recovered from the Wayback Machine.

UpdateOf course, I realize that I’m probably a-l-l-l-l-l-l-l alone in the viewpoint I’m expressing in this post. Which is a true measure of freedom to speak — when you can speak amidst your peers and not get stoned.

(Damn, did I just get hit by a falling link?)

And no, as a matter of clarification, I wasn’t offered a job with Disney. But I do get unhappy when I hear people say things such as “artists gouging their rights from the public”. Makes me not want to be an artist, if by doing so I’m ‘gouging’ someone out of their rights to take my stuff and do what they want with it.

If Mark Twain were alive today, he’d agree with me. You know something, else? If Mark Twain were alive today, he’d be a great blogger.

And he’d agree with me.

-earlier-

This will be my last posting on copyright, Creative Commons, Eldred vs. Ashcroft, and freedom of speech as compared to freedom of innovation. Too often in these discussions we become little mini-lawyers, spouting out rules and regs of law, citing article and verse, as if he or she who can reference more, wins. What we should be discussing is what all of this means to us, as individuals, and leave the law to the lawyers and the discussion of law to the courts.

Long ago when I talked about the Creative Commons licenses, Dorothea Salo wrote a weblog posting about how she wouldn’t be using CC licenses or copyright notices at her weblog. Her reasoning is based on a story of plagarism, revenge, and brilliance; all set in the early 1600’s and resulting, ultimately in that classic work El ingenioso hidalgo Don Quixote de la Mancha. According to Dorothea:

 

To me, these are appropriate revenges on an appropriate field of battle, revenges that enrich us all. What good to world culture is a court fight over creativity? What is the good of automatically branding creativity with the mark of the lawyers, as if there were no other way to think or act toward it?

The only unchanging language is a dead one. The only creative work never to be reworked, rethought, stolen from, excerpted, (yes, even) copied is—a dead one. The legal arena of copyright, even the benign-by-comparison Creative Commons form of it, is murdering creative works both existing and potential. Killing them dead

 

Dorothea’s choice is an unusual one today — she chose no legal path, at all. In other words, a person can take her work, do what they will with it, and she won’t sue them or otherwise invoke any law on the person. One could say that Dorothea has given her works to the Public Domain, but she doesn’t even necessarily acknowledge the Domain. Her work is. Use it, or not.

What Dorothea has done is shown us that copyright laws are only effective if the copyright owners choose to exercise their rights of ownership. If a thousand people copy a poem, a book, or a song, and the owners of same don’t sue, then ‘rights’ as granted by copyright law are meaningless. Copyright law is a passive law — it doesn’t seek to enforce your rights, you must invoke both the law and your rights.

A couple of months back, Shannon Campbell wrote a post about another weblogger, Scott Andrew LePera, copying one of her songs and then editing it, adding himself into the mix. Well, this was clearly an act of copyright infringement, but instead of getting a lawyer and suing Scott, Shannon was delighted. She wrote:

 

Having been a solo performer a greal deal of my career, I’ve never had the opportunity to hear one of my songs with bass and percussion. To be honest, if you’d asked me to pick one of the six or seven I have available for download to overdub, this would’ve been the last one, but only because I never envisioned it would work so well.

You did an incredible job of working with the dynamics of the song, and building it *just right*. The harmonies are perfect, especially on the chorus, where I’ve had a lot of trouble finding the pocket for them myself. I guess it’s that whole “objectively listening to your own material” thing.

 

Derivation really is in the eye of the artist, and some artists support derivatives and others don’t or don’t support certain forms of derivation. Regardless of what you do with the copyright laws, how you manage their lengths and their enforcement, a derivative work will always be a goodness if supported by the creator, and tainted if it is performed in defiance of the creator. No copyright law will ever change this, and this isn’t a question of ‘natural’ law versus any other kind of law — this is based on human behavior.

In my comments, Timothy Phillips wrote:

 

My view is that the rights that copyright holders enjoy are rights that have been gouged out of the public’s rights (emphasis added). The public has “sacrificed” (James Madison’s word) or “derogated” (Levi Lincoln, who I believe was Attorney General in the first Jefferson administration) some of its rights to the rightsholder. Hence whatever rights the copyright or patent holder has, the public had first. The public cut off a bit of its rights to give to the rightsholder for a time. Or perhaps more exactly, the public agrees with the rightsholder to refrain from exercising its rights for a time, in order to create an exclusive privilege by way of encouragement ot the author or inventor.

 

By the very nature of this statement, Timothy has put the artist and the public almost into an adversarial position — the artist has ‘gouged’ out his or her rights to her own work. I compare this with another quote that appeared in another of my comments from Gina Guiliano:

 

“Lord Thring asked me what I thought would be a fair and just copyright limit. I said a million years – that is, copyright in perpetuity. The answer seemed to outrage him; it quite plainly irritated him” (Mark Twain [1906], The Autobiography of Mark Twain).

 

 

The point that Mark Twain makes is that these so-called copyrights granted at the sufferance of the public to the artist should be the norm; it is then up to the individual artist to decide how their art is used, copied, re-sold, or innovated on. And if the artist is comfortable with the innovation, then the derivative work prospers; but if the artist is unhappy with the derivative work, then how can the derivative be anything more than a rape of the original artist’s creativity? A mocking of that which you seek to emulate and derive?

Much of this case surrounds Disney’s control of Mickey Mouse — Free the Mouse, goes the slogan. But to what purpose? If you use Mickey Mouse in a manner that generates consternation of the Disney corporation, and most likely would have caused consternation to the original artist, Disney, then what is the point? That you used the Mouse because you could use the Mouse? That you used the Mouse as a weapon against Disney? That you used the Mouse because you lacked the creativity on your own to create your own character?

What would be the point?

Also in my comments an anonymous poster brought up the famous playwright, Beckett, and how he wanted strict controls over how his plays were staged, a strictness that is still enforced by his estate. By denying certain modifications on his work, Beckett was considered to have somehow abrogated the innovators’ freedom of speech. But how? One would have to assume that the author of a play understands his or her work enough to know when a derivation is, to the author, harmful to the original intent of the play. Should the original author’s freedom of speech be subsumed as lessor to that of the innovator?

By what standard do we measure these things that he or she creates has less rights than she or he who copies and modifies?

In one particular instance, Beckett sued a production company that wanted to use all female characters for the play, “Waiting for Godot”. He said at the time:

 

Had I wished those characters to be female, I would have said so.

 

Is Beckett to be condemned because he created a finely crafted play, with many built in dependencies, of which one such is that the players are not all women? To him, to change the sex of the characters was to change the essence of his work — to abrogate his freedom of speech as expressed in his work.

I’ve heard people say that many times a work is necessary in order to prove a point, so one must use the work in order to exercise freedom of speech. For instance, one might recite a poem at a demonstration, or give the Gettysburg Address. But neither of these is a innovation as much as it is a recitation of the original work. And when it comes to writers at least, I know of few who would ever seek to stop a speech on a campus, or have a publication pulled because it recited some of their work in order to prove a point. Forget laws, and what is or is not allowed, I know of few writers who wouldn’t like to know that their work is inspiring enough to be used to prove a point. Unless…

Unless, the writing is pulled out of context, modified, and used to prove something that is abhorant to the writer. Then few would not fight to reclaim the true meaning of their words. To reclaim their freedom of speech.

Innovation does not mean “copy and manipulate until the end result no longer resembles the original”. It means “..the act of introducing something new”. Innovation should be based on inspiration, and should be an act of celebrating an original writing or piece of art or music because it so inspires a person that they take that which is given and work to create something new from the old; but something that is an inspiration, not an exact copy that one changes key items in order to get written up in the newspaper for the audacity of such change. Even I, a person who is not heavily involved in the arts, can tell the difference between true innovation, and cheap rip-offs.

I’m not going to debate this anymore, and I’m certainly not going to go head to head with the legal wannabes, quoting article and law. I know what I believe: that copyright is only meaningful when invoked; that many artists are flattered when their work is quoted or copied for inspiration, as long as the artists living isn’t threatened, and their own rights aren’t cast aside; that works of art are an expression of speech that must be given the same rights under the constitution as those who would seek to use this art for their own means.

I hold the copyright on these weblog postings, not because I think they are works of great writing, but because I don’t really care to have them copied elsewhere. The reason is that the postings are part of a package, which includes all the writings that surround each individual posting, the comments and the trackbacks, even the colors and the look of this weblog. All of it combines to say something that is unique to me. When everything but the writing on a particular post is stripped away, then I feel as if my words have been taken from me, and I’ve been shut out. I feel that my freedom of speech has been denied me, because my ‘speech’ is the weblog, itself, not just an individual piece of it.

But I encourage people to quote me, to pull sections of the writing into their own writings, to leave comments, to disagree, or agree, or even to tell me I’m full of it. I even give people the platform to tell me this, within my weblog. So how am I depriving the public domain of their freedom of speech because I want people to come here to read my posting in its entirety?

(Regardless, those times when entire postings have been copied, I’ve not complained — such is life on the Internet. I feel the same about my photos — as long as you don’t sell them, I’m not going to complain if you copy them. Probably will if you muck them up into something opposite of what they originally meant.)

Loren Webster writes, wonderfully, about stories and poems in his weblog, and wood s lot is famous for linking to incredible photos and articles and stories. Have they ever violated copyright law by doing so? Isn’t the question really, has anyone ever invoked copyright law on them in their actions? Would this stop them from writing?

I guess I don’t know. I don’t think so. Loren might not publish poems by one specific artist, if requested by that artist, but there are so many others to write about, either not covered by copyright, or open enough that they don’t invoke copyright. In fact, even if an artist’s poems were not covered by copyright, if the artist asked Loren not to write about their poems, I don’t think he would.

The irony of this is that Loren has covered To Kill a Mockingbird, a work banned in many schools because of the language used in the book. Where’s the freedom of speech in that?

(Loren, am I dragging you into something again? Should I pick on someone else for a while? I can pick on Jonathon, or AKMA, if you’d rather. blink blink.)

I do know that, to me, true freedom of speech has to do with speaking out against cruelty and against war; and speaking for tolerance and justice. I have the right to speak out against President Bush and Vice-President Cheney, as well as Attorney General Ashcroft, without the fear of going to prison. To me freedom of speech is fighting a war in Iraq I know in my soul will cost the lives of thousands.

You tell me how Mickey Mouse is going to make me more eloquent, or the words more imperative, and I guess I’ll become a believer. But in the meantime, I’ll just have to muddle along using my own thoughts, and my words, and my own speech, and with an occasional quote or two from my friends.

And you can quote me on that.

Categories
Legal, Laws, and Regs

Outweigh the rights of the many

Recovered from the Wayback Machine.

I wrote and subsequently pulled a posting yesterday, about the Eldred vs. Ashcroft decision. I pulled the post because I wasn’t sure if I wanted to deal with the consequences of my writing. I knew that I was not following the ‘popular’ weblogging path in my post.

However, I believe in what I wrote so I’ve re-posted it and plan on continuing the theme it started in this post. Damn the pundits, full speed ahead.

I asked in the post the question: Do the rights of the public domain exceed the rights of the author to have control over their own acts of creation? Lately, all I’ve heard is voices in defense of the commons, but what about the artist?

Aaron Swartz created a set of Tips for Book Authors having to do with how we, since I am a book author, release our works into the public domain. In the introduction to these tips he wrote:

 

The article also hints at another, more insidious kind of copyright “theft” or “piracy”: that of copyright holders who hold onto their copyrights after the author has recouped their costs. Copyright only exists to provide an incentive to authors; once they’ve done the work and recouped their cost (and possibly the cost of their next project), they should donate their work to the public domain.

Since when is an artist obligated to give their works to the public? Is this same requirement demanded of all people? Exactly when did we lose our sense of perspective when it comes to both copyright and the importance of the ‘public good’.

Rogers Cadenhead, another author, responded to Aaron with:

 

As a computer book author, I applaud Swartz for applying the terms “theft” and “piracy” to the practice of keeping book copyrights, thus ensuring that no rational discussion of his idea can possibly take place.

 

Rogers also goes on to say that if we only re-couped our costs, there would be no incentive to give up so much of our lives in order to write the books that Aaron wants us to so easily give away.

As Jonathon Delacour writes:

 

This utopian idea that authors should write for love, not money, probably reflects the majority belief that writing a book is no more difficult than baking a cake. Yet I’m reminded of a New Yorker cartoon showing two people at a cocktail party. One says, “I’m writing a novel.” The other replies, “Neither am I.”

 

If only it were as easy as baking a cake. I spent yesterday working on one section of one chapter of Practical RDF. Just one section, trying to ensure that I captured the nuances of the technology clearly, and with representative examples. One day to write the number of words you see in this post, and the last.

In the comments over at Roger’s, I wrote:

 

I’ve authored or co-authored 13 books, all related to computer technology of some form or another. None of them would live past the old copyright period much less the new timespan, because technology tends to date as soon as a book hits the streets.

As other authors in this thread can attest, computer book authors rarely make large amounts of money. Seldom can we give up our day jobs in order to write fulltime. When Aaron states that we should be restricted to only re-couping the cost of writing a book, I have to laugh; with my current effort for O’Reilly, I’d be glad if this did happen, because it’s taken well over a year to write this book.

Personal efforts aside, what people seem to forget is the larger question — when does the rights of the ‘public domain’ supercede the rights of the individual? I’m not talking about publishers or corporations — I’m talking about the artist. A book or a piece of music or painting are works of creativity that took not only effort, but time, considerable time, on the part of the artist. To say that the creator of the work has so many rights to their effort, and no more, because the will of the ‘people’ must be satisfied, is just another variation of mob rule. When are the rights of the individual respected over that of this faceless, nameless, and soul-less public domain?

Aaron has all these ideas, but he’s never published a book. He’s never had to put the amount of time and effort into writing several hundred pages, go through the editing, or listen to reviewers cutting it to shreds. He’s never paid the price necessary for him to blithley write out ‘Tips for Authors’, and telling us how much we’re entitled to for our efforts.

Cory Doctorow did an incredible thing, publishing his book online. I respect him for it. But this wouldn’t work for computer books, because chances are, free online versions of the book would cut into the sales. And these books have a short earning life span, as it is.

And I have to ask — why should we put these books online for free? I’m not denying people access to the information. They have access to much of the same information online I do, but my books help them access the information more easily. However, not having my book online won’t deny people access to the information. As for electronic forms of the book on CD, did this with Que and Sams books, and next thing we knew, they were online all over the place.

What’s worse in all of this is to be accused of being a ‘thief’ because I choose _not_ to put my work into the public domain immediately, or maybe not at all until the copyright ends. But you know, that’s my choice. Why is there this almost mob-like mentality, carrying aloft words like ‘theft’ and ‘piracy’ rather than torches, ready to condemn if one doesn’t immediately turn all of our creativity over to the ‘public domain’. Where is the good in this? To me, this is just as bad, perhaps even worse, then over-extending copyright or patent priviledges. I would rather see Disney hold on to its copyright of the Mouse, than to see artists forced to give up their creations for some ‘common good’.

 

Perhaps I should change my tag line to read: Pirating from the Public Domain since 2001.And ya know something? I plan on continuing my ‘pirating’ into the future.

Arrr!

Categories
Legal, Laws, and Regs

When the rights of one…

Update: Larry Stanton in my comments referred to posts by Jack Balkin about the First Amendment clause issue of Eldred vs. Ashcroft. This gentlemen is a constitutional lawyer specializing in first amendment law, and his posts on this issue, here, here, and here are rich reading — clear explanations from an expert’s viewpoint.

As I said earlier, I know that Larry (Lessig) is disappointed at the results of Eldred vs. Ashcroft, but this opportunity for us to see constitutional law in action, and to hear from the experts as ‘regular folk like you and I’, is worth its weight in blogger gold.

Thanks Larry Stanton for links. And I did notice that Denise Howell also had linked to Jack Balkin but I had missed it, earlier.

-earlier-

Where others have been seeing failure about the Eldred vs. Ashcroft decision, I’ve seen nothing but triumph. I do not agree with Larry Lessig that he ‘failed’; and the guiding principles behind this decision should be ones that, once the emotion of this moment passes, he also should be celebrating.

A small group of people took on not only the powerful entertainment industry but the very Congress of this land. They could do so because the Framers of the constitution instituted a court of last resort — the Supreme Court. In this court all power is set aside and two parties could argue a case based on its own merit. In this very court even the smallest of us could have one last word.

However, there is nothing in the Constitution that says that the law of the land favors the small, or even favors the fair. Because of this, the court of last resort sweeps aside all emotion in addition to the power. This is not to make it an unfeeling court, but one whose decisions are based on careful consideration of the law, as well as the impact of the decison over the future and the past — something too important and far reaching to trust to the vagaries of emotion. Who dances on the side of angels changes too frequently to allow this any influence of the decision within this court.

In the last 48 hours, we’ve been given an opportunity to read the decisions of the Justices, to get a glimpse into the minds of these, the defenders who stand at the last bulwark between law and lawlessness in our land. Adding to this richness of this experience, Larry himself, in an expression that is both simply stated as well as compelling, provides insights into the mind of the man who prepared this case. Rather than a dry recital of fact, tonelessly presented in sound bites on the evening news, we’ve been given a glimpse into how law — law at it’s best — in this country works, or was meant to work when framed many, many years ago.

The Supreme Court denied the challenge of Eldred vs. Ashcroft, true. Who is to say that their reasons are not good? Larry wonders if the reason the justices denied the challenge is because the Court will only accept a role to defend the rights of the states against Congress, and not the public domain. But what is the public domain that it needs defense?

A question lingers through all of this: Do the rights of the public domain exceed the rights of the author to have control over their own acts of creation?

We may say that copyright is evil, that it denies the ‘public domain’; but to the artist, copyright is the only law they have that allows them ownership of their own work. It’s true that the copyright laws have benefited, hugely at times, major corporations, but ultimately there is that barely known writer or painter whose only defense against theft of his or her work is copyright law. Could this not have weighed strongly with the justices, this image of the artist rather than the corporation? The rights of the individual versus the rights of the common good? It’s at the back of my mind; are they so very different from me?

However, the copyright law itself was not the wearer of the black hat in this particular challenge. And the law itself was not the basis of Larry’s arguments. Instead, he sought to show that the Congress basically overreached itself with its extension of the copyright. What was unsaid in the arguments he provided, because they had to be unsaid, is that Congress overreached itself due to the influence of power and money — the same Congress that in its purest form should be beyond both.

However, the Supreme Court answered that though it may seem as if the Congress has overreached itself, it is not up to the members of this court to reign in a Congress that allows itself to be overly influenced by power and money — it is up to the people who put this Congress into office, and then ignored the acts of this same Congress. For the court of last resort to deny this is to deny the responsibility of the voters to ensure that the Congress acts in the best good for all.

The Supreme Court was never meant to abbrogate our own responsibilities.

Larry wrote:

 

What the Framers of our constitution did is not enough. We must do more.

I both agree and disagree with Larry — the Framers of our constitution framed it exactly right; and it is now up to us to do more.

Categories
Legal, Laws, and Regs Technology

Common Law

Recovered from the Wayback Machine.

The text within this weblog posting is licensed under a
Creative Commons License. Please email author notice of re-use as a courtesy.

Denise Howell is our first non-CC lawyer taking a walk on the Creative Commons wild side — she licensed her weblog. I liked Denise’s write-up of the process, including clear details of her mental processes as she made her way through the steps in the application process. She writes:

 

To better convey my intent that the “work” in question is everything I create and post here unless I say otherwise, my notice reads: “Unless otherwise expressly stated, all original material of whatever nature created by Denise M. Howell and included in this weblog and any related pages, including the weblog’s archives, is licensed under a Creative Commons license.” By these revisions, I mean to advise the world that I do not purport to license things appearing here that I did not create (the base HTML template, for example), and also to preserve for myself the right to differently license, or not to license, specific items or posts on a case-by-case basis (I can’t really foresee wanting to do this, but it could happen.

 

In comments attached to the Bombs away! posting, Matt Haughey, creator of MetaFilter and member of the Creative Commons, asked if I was going to license my content now that some of my concerns about the technology implications had been addressed. My initial response was to say No. I did and still do think that there is too much of a rush to adopt the CC licenses without full understanding of consequences. In particular, there is a mix of technical implementation and law that we don’t fully understand, yet, associated with CC licenses.

(When technology and law meet, it’s usually to the detriment of both.)

However, Matt presented some good arguments. In particular, he wrote:

 

Here’s the reality of my situation and why I applied licenes to my work: over the past few years several dozen people have emailed me to request permission for reuse of my photos and essays. I had to answer each one individually, and I’d like to make that automatic for them instead. This way, more people use my creations (since they don’t have to go through the bother of asking first), my name gets out there in more places (with attribution requirements), and wild new creations are made based on my work (since I allow for derivative works). Putting something online and into the world already has lots of risk, but I don’t want to interfere at all with the legitamite reuses of my work, in fact I want to encourage it.

 

Good points. Enough to make me question whether I was being cautious or just plain stubborn in my refusal. My conclusion was a little bit of both.

Because many of my concerns about the legality of CC licenses were allayed by Denise’s writeup, I decided to incorporate CC licenses, gradually, throughout my web sites. starting with this weblog. However, I am doing so a lot more carefully than earlier in the week, when I blithly attached the CC license to the weblog without thinking through the consequences.

Now, I’m taking it by the numbers. License in haste, repent in court.

Bird finds religion

The first major decision I made, in this process of bringing my weblog over to the light, was that I’m not going to license the entire weblog. No offense to the general public, but my look and feel is unique to me; good or bad, this look is mine and says something about ‘me’. My branding if you will. I’m not interested in giving someone permission to copy it wholesale.

(To be honest, I don’t think there’s hordes waiting at the door to grab my site design. and if someone were to take it I probably wouldn’t complain — but I don’t want to encourage anyone to take it. )

Instead of applying a license to the weblog generally, I’m licensing specific components, bit by bit. one component at a time.

Design Components: As regards the pieces of my page design, such as the font settings used for this paragraph, there’s nothing stopping anyone from copying stylesheet settings and layout design for their own use. People don’t need a license to copy individual settings or general layout design. At least, it hasn’t stopped any of us since the second person to design a web page did so by copying and modifying the web pages created by the first.

Hopefully the lawyers in the room will correct me if I’m wrong, but I believe that this type of copying would be covered under Fair Use laws, and the CC license wouldn’t be necessary. Or, at the minimum, one wouldn’t be able to distinguish the copied material from original material at a thousand other sites.

Client-side Scripting: In reference to the Javascript in the pages, it’s already covered by a software copyright notice added to the page by Moveable Type. The copyright is owned by Ben and Mena Trott, and I’m required to keep that notice in the pages, unmodified. If I don’t Ben and Mena will hire mean, hungry lawers and come after my butt. Don’t let those nice smiles in those attractive faces, and their demonstrated interest in contributing to the community without compensation fool you — if I removed the script copyright ‘tag’ from the page, there’d probably be a lawyer in my face faster than you can say “Would you like whipped creme with that tort?”

Well, no, not really. I have a feeling that Ben and Mena would take my removal of the copyright information in stride, but I would be betraying my honor and a shared trust if I removed their legal rights from code they created, regardless of the fudgery I might use to do so. And personal honor and trust means a whole lot more to me than a lawsuit. So the notice stays, as is.

As for my own JavaScript, there is none and will never be any in my weblog. The few other places where it’s used, I’ve attached a software license notice to the code allowing full re-use with attribution. (See more on software later.)

Photos:I don’t have the people clamoring for my photos as Matt does (sniff), but I’m willing to release most of the photos for re-publication using the CC license; allowing people to publicly duplicate them for non-commercial use. The photos so released will be licensed as Attribution-NoDerivs-NonCommercial, same as Denise’s weblog. A few photos I’ll keep under the general copyright laws, but chances are if anyone wanted to use these photos I would allow them to. I would just prefer that they ask first on some of the pics.

To handle this, without individual CC licenses sprouting across my pages like fungi on a dead tree, I’m not attaching CC licenses to individual photos appearing in the weblog. Instead, I’ll attach license information to the photos in my photo gallery.

Luckily, the software that I use to manage my photos (Gallery, an open source application managed at Source Forge) allows me to add a caption for each photo. Best of all, I can embed HTML into the caption, which allows me to embed CC license graphic and link to the license in the page, as you can see demonstrated with the St. Louis Arch album.

If the photo software was not capable of accepting user-supplied HTML, I would have included the “This photo is…” text, the license type, and the URL of the license type in the caption, instead.

Flash: I don’t do Flash.

Video:I don’t do video.

Music: I don’t create music files, but will no longer include music in this weblog from other sources that is not freely released for re-duplication.

Other Images I’ll most likely create an image page that lists all the graphics at my sites that I’ll open under the CC license, and link to this from my main burningird.net page. However, I will not license any of my logos, such as the burning bird logo attached to this weblog.

Server-side source code: My source code for my own personal projects is always open source, and I use Source Forge to manage my one bigger project. However, all of my source is covered under software license, and I prefer to continue using software licenses for software. The CC licenses were not initially focused on providing software licensing, primarily because there are software licenses that have been in use, successfully, for years.

As the organization states in its web site, there is a gap in available licenses for other web resource types, such as writing within a web page, images, video clips, and music. Just these will keep the Creative Commons folks busy for many, many years. There’s no need to drag the nice CC people into the murky, Darwinian world of software development.

(One glance at a posting Lawrence Lessig wrote about one specific issue related to software is enough to demonstrate the problems associated with licensing and software.)

XML Vocabularies: All my XML vocabularies (RDF/XML) are open, of course. If they weren’t I would again cover them with the appropriate software or XML-related license.

For my PostCon system, I am adding the CC license information to the RDF/XML used to describe each web resource managed by the system. However, I have modified the CCL RDF/XML to provide a better fit with my RDF/XML vocabulary. This didn’t result in a change to the underlying RDF model — just changed the RDF/XML ‘abbreviated syntax’ used. (Covered in more detail with documentation associated with project, when released.)

Writing: As for the weblog writing, well, this is a bit harder.

My article titles are public domain already, so can’t protect them, (Lawyers, is this true for in-article titles as well as external titles?). And excerpts of the post writing can be re-published under Fair Use laws. As for the text of the entire post, well that’s the thing.

I don’t want someone copying my posts in their entirety; that’s why I don’t support content-encoding of entire posts in my RSS feeds. I prefer another weblog or other site link directly to my posting rather than replicate it; and I prefer that a person visit my weblog to read a posting rather than read it in an aggregator or RSS browser.

The reason why I want people to come here, rather than read my words there, is because the sum of the parts is greater than the whole. My weblog postings are an aggregate of the writing, contained within the weblog look and feel, annotated with updates, and enhanced by communications through trackbacks, comments, and so on.

As an analogy, you can give a child a doll, but there’s a difference between just handing them a doll and handing them a doll contained in a fancy box, wrapped in pretty paper, and tied with a big fat bow with a card attached that has bits of glitter and “Love,____” written on it. Think of my weblog writing as that doll.

I know this stinginess isn’t public spirited, but what can I say? I’m a control freak.

Still, a step or two in the direction of the public good would be a beginning in my quest for self-redemption. Based on this soul searching, I’ve decided to license some of my posts (i.e. allow re-publication of entire weblog text), and leave the others under general copyright.

To allow for this mix of CC licensed posts and non-CC licensed posts, the posts covered by a license will be marked as such, including the graphic hypertexted to the license, and with the RDF/XML embedded within the post. This post shows it at the beginning, but normally the information will be at the end of the post.

If you want to completely republish the writing in a weblog post covered by the license, such as the writing in this post, you can now do so without asking my permission. Well, as long as you don’t alter the words, profit by it (the license is designated as “not for commercial use”), and attribute the writing to me.

As can be seen in the text associated with the license, this license covers the text only. Any photos included in the posting will be covered as described above.

For my other non-licensed posts, you’ll need to get my permission to re-publish or I’ll come after your butt with a mean, hungry lawyer. And I’m not nice, like the Trotts.

RSS: Adding CC licenses to individual posts is going to create a challenge in the RSS feed. For instance, if I don’t put the CC license information at the bottom of the post, it’s all that will show in the RSS feed for this post (since I only do smallish excerpts).

In addition, both RSS feeds I support, Userland RSS (RSS 2.0) and RDF/RSS (RSS 1.0) are generated from templates. These templates process every weblog posting the same. There is no way to designate one posting as licensed and one as not.

Ben Hammersly created a module for RSS 1.0 to embed CC license information for the specific resource in the feed. Now, once this is approved I can modify my RSS feed template to support this. However, this still won’t solve my problem of some posts being released under CC license; and some not.

Another approach would be to depend on the content-encoded element, which I had removed from the RSS feeds. I could allow this back in the feed, and my posting in its entirety would be included in the feed. This should then pass along not only the writing, but the HTML of the posting, including the license.

However, there’s a problem with this — I know of at least one online site, News is Free, that publishes the content from the content-encded element regardless of copyright. If this site, and others like it, don’t check to see that a specific item is covered by the CC license, all of my posts will be published in their entirety. And this includes photos embedded in the posting, which I already covered above (photos in posting are not released CC).

This is one of those tricky things that happens when you start mixing tech and law.

However, there is a short-term solution. Duplicating the CC license information to the feed isn’t required. If a site wants to publish the entire posting, they’ll need to come to the source of the writing, the weblog posting itself. There, they’ll be able to see if the posting is open under CC license or not. Since I only publish excerpts to the RSS feeds, they’ll have to get the entire posting from my weblog pages, anyway.

Until the tools that generate RSS, such as Moveable type, and the tools that re-publish RSS, such as News is Free, incorporate CC license information in their processing, the approach I’ll take for now is to not include CC license information in the feed — a compromise that should work for the nonce.

(Ben Hammersley also nominated me for admittance to the RSS working group. The man’s a brave, brave soul and I thank him. I don’t expect to become part of the group, but it was nice of Ben.)

Summary

There you have it: Burningbird becomes enlightened. However, as you’ve seen, I’ve exercised my enlightment cautiously, treating the CC licenses as they should be treated — as binding, legal contracts between me and the people who would re-use my material.

12/23 Update:

Jonathon Delacour steps into the CCL arena with a professional artist’s eye:

 

What recourse do I have if one or more of these photographs is used in a context of which I disapprove? For example, on a poster advocating euthanasia for terminally-ill infants or in a right-to-life brochure—both published by non-profit organizations.

What’s to stop someone overlaying racist captions on photographs I took in the New Guinea highlands twenty-seven years ago, should I choose to release them under an Attribution-NonCommercial License? Or to include the photographs in a white-supremacist collage? How am I to respond when the pictures I made at a Jewish funeral appear as illustrations in an anti-Semitic diatribe? Not only has my artistic intent been subverted, but I have also allowed myself to be portrayed as a racist or an anti-Semite.

 

Removing the rose colored glasses indeed. Being aware that CC licenses are ‘permanent’ and cannot be revoked is sobering.