Wikipedia a Sell Out?

05-07-2008 | 05:44 PM EST | 0 Comments

News came recently that a major German publisher plans to lift articles directly from Wikipedia to be included in a commercial book that will be printed and sold later this year. Because Wikipedia's articles are written and edited free-of-charge by volunteers throughout the world, the move has some crying foul. A cacophony of voices from around the Internet has already begun questioning whether the original content contributors won't be due some royalties and whether this act is legal. Some blogs have even received comments calling for a boycott on Wikipedia. Will this be the beginning of the end of Wikipedia as we know it?

The outcry began when German publisher, Bertelsmann, said it plans to print a book called "The One-Volume Wikipedia Encyclopedia." Bertelsmann's Encyclopedia will include a verbatim printing of some of the year's most popular Wikipedia articles. Hitting bookstores in September, the Encyclopedia will cost 19.95 euros (currently around $32 U.S.) of which Bertelsmann will pay the Wikimedia Foundation, Inc., (a U.S. registered 501(c)(3) tax-deductible nonprofit charity) one euro for every copy sold. And the writers, editors, and others whose words and work will be used directly? They won't get paid a cent. So, how can this be? Has the Wikimedia Foundation suddenly turned into yet another money hungry organization bent on, as Mark O'Neill of Now Sourcing puts it, "shafting" the contributors?

I've run across this scenario a lot lately, and I've actually been frequently addressing it offline. To me, the problem is that copyleft is suffering from its own popularity.

Under a section of the Wikipedia license titled, "2. VERBATIM COPYING," it reads:

You may copy and distribute the Document in any medium, either commercially or noncommercially (emphasis, mine), provided that this License, the copyright notices, and the license notice saying this License applies to the Document are reproduced in all copies, and that you add no other conditions whatsoever to those of this License. You may not use technical measures to obstruct or control the reading or further copying of the copies you make or distribute. However, you may accept compensation in exchange for copies. If you distribute a large enough number of copies you must also follow the conditions in section 3.

You may also lend copies, under the same conditions stated above, and you may publicly display copies.

In other words, Bertelsmann's book is perfectly legal under the terms of the license.

I jokingly commented in a recent post about Bill Gate's apparent misunderstanding of the "free" concept that lies at the heart of the various GNU licenses, but the reality is, a lot of people really don't seem to understand that the "free" has to do with freedom and not monetary cost. I think that this confusion led to fewer problems in the past, because there just wasn't the same mainstream popularity of ideologically free resources that we have today. It seems to me that people in the general public are now not only more aware of free and open source software and free culture in general, but they're also more willing than ever to contribute to it — often, apparently, without really understanding what their contribution means.

So, I think that the people who are upset with Wikimedia about this have at least a few choices at this point. 1. Accept that no laws were broken and that the spirit of GNU Free Documentation License was upheld and then continue contributing to and using Wikipedia as always. 2. Publish and sell their own compilation of their contributions to Wikipedia. 3. Create a whole new "free-ish" license of their own along with a new repository of human knowledge that promises to never monetize the knowledge without financially compensating the contributors. (Or just support only those works licensed under the Creative Commons Attribution Non-commercial license.)

Regardless of how things end for Wikimedia, I predict we're going to see a lot more of this as the desire to share and contribute freely to culture grows in popularity. Those of us who understand and support the intent of things like the GNU licenses and some of the Creative Commons licenses will just have to make sure we're doing our part to educate the general public on what exactly they're getting themselves into.

A Pragmatic Reason To Oppose DRM

05-05-2008 | 09:34 PM EST | 0 Comments

DRM (Digital Rights Management) is a general-purpose term that refers to technologies that limit or control the ways that an end-user can interact with a product. A great example of this is digital music that is stored in a file format that can only be used on a particular device or with specific software. If you've ever purchased a song off of Apple's iTunes music store, chances are you've encountered Apple's FairPlay DRM. And, if you ever wished that you could play that same song from iTunes on something that doesn't recognize the AAC format, you know what it feels like to hit a DRM wall.

Now, I've heard a lot of arguments against DRM that I found personally very convincing, but I can't count how many times I've seen these same reasons fall completely flat against other people. In these cases, it seems like the argument against DRM goes something like this:

Person 1: What will you do when you want to watch that movie on something other than what the DRM restrictions allow?

Person 2: But, I don't use anything else to watch movies.

Person 1: Okay, then how about when you want to listen to that music on something else?

Person 2: But, this is the only way I listen to music! I'm pretty happy to use everything exactly as the manufacturer suggests, so this DRM stuff really isn't an issue for me.

Okay, maybe that conversation was a slight exaggeration, but you get the picture. The bottom line is that there are some people that say they're happy doing what they're currently doing, they don't ever want to do anything different, so DRM's not a problem for them. I've often had a hard time knowing what to say to people like that, because I just can't imagine not at least wanting to know the freedom is there to do whatever I want with what I bought — even if I never do anything different than exactly what the manufacturer suggests. But, a recent article by the EFF about MSN Music and DRM got me thinking about a new angle to try when explaining the potential risks of using DRM restricted media and devices.

You can (and should) read the complete EFF story over there, but in a nutshell here's what they say:

"MSN Music sold song downloads encumbered with digital rights management (DRM), allowing the music to be played only on approved devices. If you upgraded your computer or operating system, you needed to 'reauthorize' your music files with MSN Music's DRM server. But last week, Microsoft announced that it would deactivate those servers because of the complexity of maintaining the technology -- meaning that customers face losing the ability to play their purchased music if they get a new computer or if the hard drive crashes on the old one. Microsoft's only suggestion for customers so far is to export all purchases onto a CD and then recopy it back onto new computers."

So, here's my new response to people who say DRM's not a problem, because they don't want to do anything different. Sure, you might be happy to keep doing whatever you're doing right now, but what happens when the manufacturers decide they don't want to do it anymore? At best, you'll get an apology and maybe some technically difficult or time-consuming way to recover your purchase; at worst you'll get an expensive pile of unusable media and devices!

Music Riles the Savage Beast

05-02-2008 | 05:39 PM EST | 0 Comments

The old adage tells us that music soothes the savage beast. Well, it would seem that when the beast is the RIAA or the Atlantic Recording Corp and the music in question belongs to them, there ain't nothin' soothing.

On Monday, April 28, 2008, U.S. District Judge Neil V. Wake of Arizona released his decision in Atlantic Recording Corp. et al v. Howell. In this case, husband and wife, Jeffrey and Pamela Howell, are accused of sharing 54 songs over the Kazaa file-sharing network. By placing the music in a publicly shared folder on their computer, the Kazaa software was able to make the songs available to any other Kazaa user. The Atlantic Recording Corp hired and authorized RIAA investigators at MediaSentry to download the songs from the Howell's shared folder and used this instance of downloading as the proof that the Howells were illegally distributing the Atlantic Recording Corp's copyrighted work. To the delight of many Kazaa file-sharers, Judge Wake ruled that simply making copyrighted music available in a Kazaa share-folder doesn't equate to infringement. This is particularly noteworthy because, as Wired points out, "The 'making available' argument was essentially the RIAA's way of getting around the technical problem of proving that someone actually downloaded a shared file." Unfortunately, there was also a problematic second component to this ruling. Judge Wake did allow that 12 of the songs that RIAA investigators downloaded could be used against the Howells. This is a first of its kind ruling which has drawn attention from a number of experts, including William Patry Senior Copyright Counsel, Google Inc. In his personal blog, Patry writes, "The court thus permitted the labels to use their investigator to engage in conduct that the labels then pointed to in proving their allegations. But authorized conduct cannot be unauthorized conduct, and since the only evidence of actual distribution (if that is what the downloading is) was authorized, there could be no infringement, as EFF pointed out." Indeed, the Electronic Frontier Foundation (EFF) filed an amicus brief which, among other things, clearly takes this issue to task. So, where does that leave consumers and would-be file-sharers? It would seem that for the time being, making your music publicly available is a perfectly legal activity, but if anyone (especially anyone in the RIAA's service) downloads your music, even at the behest of the copyright owner, you might be going to court!

Also of RIAA note is the sudden and inexplicable increase in filesharing takedown notices from the recording industry that have recently been received by universities around the country. The most interesting part of this new RIAA onslaught is that, according to Wired, the universities themselves are saying that "many of the recent notices don't correspond to entries in traffic logs, which also don't show any overall increase in file sharing." So what's with the surge? Who can say. RIAA spokeswoman Liz Kennedy didn't respond to Wired's request for an explanation of the increased volume and claims that the notices were being sent without proof of infringement. In light of the Wake ruling, I can't help but wonder if the RIAA isn't secretly hoping that simply the act of opening a takedown notice or cease and desist letter can be used as evidence of illegal file-sharing.

On a final note, don't let the actions of the RIAA and Atlantic Recording Corp. get you down on the entire music industry. Earlier this week, record label, Magnatune, announced $11,570 in sales via the (in my opinion, absolutely fantastic) free software media player, Amarok, which Magnatune has been supporting since last July by way of hiring a software developer to work on Amarok. Moreover, Magnatune reported that it would donate 10% of sales made through Rythmbox back to the Rhythmbox project. As Creative Commons writes, this is "a practical win-win for users (ready access to DRM-free, CC-licensed music), developers, artists, and the whole movement."

Who Owns This Image? Art, Access, and the Public Domain After Bridgeman v. Corel

04-30-2008 | 03:42 PM EST | 0 Comments

On April 29, 2008, The New York City Bar Association's Great Hall was the setting for a one-and-a-half hour public panel discussion on the Bridgeman v. Corel ruling of 1999. The discussion, cosponsored by Art Law Committee, New York City Bar Association, College Art Association, ARTstor, Creative Commons, and Art Resource, was comprised of a distinguished group of panel members. Moderated by Virginia Rutledge, Chair, Art Law Committee, New York City Bar Association, Vice President and General Counsel Creative Commons, the audience in the filled-to-capacity Hall heard from Dr. Theodore Feder, President, Art Resource, Artists Rights Society; Hon. Lewis A. Kaplan, United States District Court, Southern District New York; Christopher Lyon, Executive Editor, Prestel Publishing; William Patry, Senior Copyright Counsel, Google; and Maureen Whalen, Associate General Counsel, J. Paul Getty Trust.

The evening began with Rutledge explaining that there was a change in the panel lineup. Because Hon. Richard A. Posner, United States Court of Appeals, 7th Circuit, was unable to attend, Hon. Lewis A. Kaplan served as his replacement. This change added a particularly exciting and unexpected twist to the discussion as Kaplan was the presiding judge in the case that was to be discussed. Following this announcement and a brief introduction of each of the panel members, Rutledge quickly summarized the case for the audience and set the stage for some of the points that would be discussed by the panelists in-depth. Finally, before passing the podium off to Kaplan, Rutledge took the assembly through a brief discussion (visually aided by a PowerPoint presentation) of the copyright confusion that persists to this day over the "difference between a reproduction and the real thing."

Judge Kaplan prefaced his evening's remarks with the disclaimer that he has "vast respect" for photographers and artists in general. From there he took the audience first through a brief history of copyright itself followed by a detailed look at the thinking process that led to his ruling in Bridgeman v. Corel. Of particular note were three key copyright concepts which Kaplan attributed to Justice Laddie and considered when making his ruling: originality of rendition, originality of timing, and originality with respect to subject matter. Through the use of anecdotes which brought laughs to the room, Kaplan explained that originality of rendition referred to the skill that goes into making the artistic work, originality of timing has to do with the artist being in "the right place at the right time," and originality with respect to subject matter deals with the unique way that the artist poses and arranges the subject matter. In the end, Kaplan believed that Bridgeman's claims simply failed to meet these standards. In conclusion, Kaplan related to the audience that his ruling in Bridgeman v. Corel was not indicative of some general stance he has against photographers and their claims to copyright. In fact, he explained that just two years ago, he presided over another case where he felt the photographer did show substantial grounds for copyright claims. That case was ultimately heard by a jury who found in favor of the photographer.

Dr. Feder took the microphone next and explained that he would "dispute rather strongly" with the Bridgeman ruling. Feder began by asserting that Kaplan's decision was actually an anomaly with scant support. Furthermore, Feder pointed out that the decision was made only in a lower court and he did not believe it was a matter of "settled law." From there, Feder went on to question whether under different circumstances Kaplan wouldn't have ruled differently. Specifically, Feder cited Kaplan's own written remarks deriding Bridgeman's attorney. Had it not been for this "regretable" lawyer, Feder asked, would the ruling have gone a different way? In regards to originality and skill, Feder argued that the photographers involved in making faithful reproductions of public domain works actually bring great individual talent and technique to each photograph they create — thereby questioning the claims against originality in these cases. Lastly, Feder noted that beyond the copyright questions, museums typically require an additional contract for use of their digital reproductions, which he felt further supported the argument against rulings like the Bridgeman case.

The third panelist to speak, Christopher Lyon, brought in the art book publisher's perspective. The crux of Lyon's remarks centered on separating the "photograph from the photographer" and the idea that, in publishing, a photograph's rights are typically determined by how the photograph is used. While Feder maintained that the originality of the photo lay in the unique skills of the photographer taking the photograph, Lyon argued that the photographer (in this very narrow field) was actually only one of usually five people who come together to make the photo happen. And, in fact, creativity and individuality "have no role to play." The photographer does not "compose" the image according to Feder; the editor and designer order something very specific which ultimately dictates the shot that the photographer takes. Feder went on to say that when dealing with photographs that faithfully reproduce without adding to the subject, the image must be "transparent to its subject." In conclusion, Feder asked "why is the institution given exclusive rights" when all of these forces work together to make the image happen?

After a momentary pause and quip by the commentator that the panelists were all being way too polite, the reigns of the discussion were handed over to Maureen Whalen. Whalen began by describing her professional and legal background and set out to paint her ideas as potentially different in that she takes a practical approach to the law. Interspersed with jokes about putting copies of public domain works on shower curtains, Whalen had the audience simultaneously laughing and pondering the bigger abstract questions. What is the role of the museum in providing/curating this type of image? Why is there something like twenty times more licensing going on in the UCLA library now compared to just six years ago? What kind of timeline should we even expect these types of decisions to be made in? Whalen did say that she thinks "that the museum world in general wants to do the right thing." But, she also pointed out that "we're dealing with four hundred year old paintings. We can't expect expediency." In the end, Whalen suggested that the ultimate goal for a museum in this debate should be to "maintain curatorial integrity of objects."

The final panelist of the evening was William Patry. After some opening remarks describing his former and extensive work with the federal government, Patry went on to declare that we shouldn't look to the government to solve this problem. He further explained his belief that any solutions that are reached will probably have to be private ones. From there, Patry asserted that Bridgeman was actually a "mainstream straightforward decision" and he defended the ruling and its strength — even though some others took exception to the fact that it was decided in a lower court. The heart of Patry's remarks came in the form of a question, "Why is copyright such a big deal?" Patry compared copyright status to magical fairy dust that got sprinkled on works thereby validating them and the artist. To which he followed up with, "you really wouldn't want your self worth determined by the copyright office." In short, Patry argued that copyright status really isn't the ruler of worth.

At the end of the evening there was only time for a very short question and answer session that touched on topics ranging from whether the quality of reproduction had any bearing on copyright infringement to how much society's attitudes and fashions affect how public domain is understood to patent and trademark issues. The night concluded with a final thought raised by an audience member who teaches at the Brooklyn Law School — regardless of the Bridgeman decision, in the end, the risk of litigation is simply too high, so most people continue to pay for the licenses and obtain the permissions just to avoid a lawsuit.

For my part, I and the friends I attended the discussion with all thought that it was a lively debate which raised as many good questions as it sought to resolve. One thing that we noted was lacking, though, was the perspective of the photographers themselves. It would have been very interesting to have had photographers on the panel to discuss how the Bridgeman decision directly affects them and what they see as their rights in this matter. It would have also been great to give photographers a voice in the debate over how much the artist is an original, creative, autonomous being in this type of work versus simply a skilled technician taking orders and inputting as little of their own vision into the work as possible. Moreover, it would have been extremely useful to have the panelists discuss the consequences of the Bridgeman ruling and the other hypothetical outcomes put forth. If that final supposition is true, that regardless of the ruling against Bridgeman people still continue to treat these types of work as copyrightable (requiring licensing and permission), then it would almost seem that the spirit of the society supersedes the spirit of the law. And in that case, for those of us on the side of looser copyright restrictions, maybe our focus really needs to be on changing the attitudes of average citizens rather than the laws that govern them.

Ahoy! Thar be Pirates Everywhere

04-28-2008 | 06:00 PM EST | 0 Comments

These are dangerous times. From a Canadian Parliament member worrying about Canada's flagging global image as a result of its current copyright laws to China's recent "self-imposed" nationwide crackdown (more here and here) to the Bush administration's new "priority watch list," it seems that everywhere we turn these days, we're told that pirates abound. They're illegally trading music and movies in cafes, libraries, and at work. They're stealing our jobs and generally hurting our economies. They're threatening our health and safety. And the worst part is, they're anyone and everyone! Long gone are the innocent days when we believed pirates to simply be disgruntled, socially awkward young males sitting in dark bedrooms in front of brightly lit computer monitors. No, we now know that pirates are organized crime syndicates, children, grandparents, soccer moms, college students, politicians, and every other demographic you can name. They're even hired by large corporations to do their bidding. (Which, ironically, is a little like the historical relationship between nautical pirates and privateers, I guess.) Simply put, there is much to fear.

Oddly enough, what I find myself fearing more than the piracy itself are the lobbyists and mouthpieces of the IP owners that are selling this message of fear. Now, I'm not in anyway trying to make a case for "piracy." For one thing, I think that the term itself is practically ambiguous at best and meaningless at worst. "Pirates" and "piracy" seem to get conflated with other (possibly similar) words like "counterfeiters," hackers/crackers, and much more. For another thing, through these bait and switch linguistical tactics, it's easy to get mislabeled as being in favor of something entirely different than what you really do support. For example, does the person who supports the call for relaxed laws on reproducing music and movies also, by necessity, advocate for black market pharmaceutical creators and distributors? I don't think so, but I think some other people do.

The RIAA (Recording Industry Association of America) and MPAA (Motion Picture Association of America) have spent a lot of time, money, and other resources over the course of the last few years doing what they can to "educate" the world's youth on the evils of copyright infringement. To be fair, I get why copyright issues are of paramount concern to them, and I get why they want to target future generations as early as they possibly can. And, in all honesty, I don't even have a problem with it when they argue that copyright infringement hurts their bottom line. (To people on the pro-consumer side of the argument, it's not about economics as much as it's about personal liberty and freedom.) What does bother me greatly, though, is what I perceive as the purposeful campaign to confuse the language, pepper the message with fear, and advocate for stricter laws with harsher punishments across the entire spectrum of "piracy." What good could come from living in a world where people are so afraid of being mislabeld that they're afraid to speak their minds? Or, how about a world where dissenting voices are simply excluded from the debate? Unfortunately, both of those already happen all too frequently, as in the case of the copyright scholar, Howard Knopf's, uninvation to the INTELLECTUAL PROPERTY REFORM: INNOVATION AND THE ECONOMY program.

In the end, my message is really pretty simple: don't let fear inform your decisions. By reacting quickly and emotionally to exaggerated and vague claims, you lose part of your own power to make up your own mind and decide what you really believe. The sky may be falling, but is it the underground bunker makers telling you that?

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