IP Freely? There's a call for I.P. Freely?

[Cramulus]

Uh, is I.P. Freely here? Hey, everybody, I.P. Freely!
Wait a minute...  Listen to me you lousy bum. When I get a hold of you, you're dead. I swear I'm gonna slice your heart in half!
                                  /


Today's topic is Intellectual Property. I've been reading Ourspace by Christine Harold, and she makes some very good points about IP which I'd like to share.

Here's the basic problem: Current Copyright law is putting a serious cramp in public culture.
Here's the underlying problem: Ideas being treated like property
Here's the compromise: the creative commons and collaborative works like Intermittens

We are in a period of artistic expression characterized by re-appropriation. We live in the Empire of Signs and Signals, a culture permeated by branding and logos. Even mundane objects have identity wrapped up in them. (As I write this, I am sipping coffee out of a ceramic mug which advertises "a greener future" - choosing ceramic over paper cups isn't just a choice about the environment, it's a choice about your identity) Hip-hop relies on samples. Film and literature is made richer by referencing other cultural works. Culture Jammers are vandalizing billboards in the name of self-expression, stealing the power of the corporate imagery to strike at its own source. Hell most of the films opening this summer are reconceputalizations of old ideas. Expression and reappropriation go hand in hand these days.

And that's something that's supposed to be protected by free speech. We private citizens have the right to comment on and satirize anything we want. It's inherent to the system. This type of expression is necessary for our freedom. An artist named Dwyer, commenting on consumer culture, created this piece of art:



this is a reappropriation of the starbucks logo... This is an obvious piece of political commentary which is protected under "Fair Use" - which explicitly protects "criticism" and "comment". These are the tools through which we, as a public, are able to exert some control over the public sphere. Starbucks felt otherwise. They sued his ass sued for trademark and copyright infringement, unfair competition (??), and trademark dilution via tarnishment. This last one stuck, and will appear again, so keep your eyes peeled for it in the coming years. This is a relatively new regulation, put in place to keep corporations from having their brands watered down by other similar brands. You can't produce a line of shoes with a backwards nike swoosh, you know? But Dwyer wasn't releasing a competing brand, he was commenting on the consumer culture that starbucks propagates. But Starbucks won the case, and had Dwyer's artistic expressions pulled from the public.

This, if you ask me, is criminal. It's unconstitutional.

It's also kind of ironic, because Branding strategies inherently surrender a level of control to the public. Marketers create brands and symbols, then disseminate them freely, hoping that people integrate them into their lives. Think about that nike swoosh - the phrase "Just Do It" is a great slogan because it could mean anything to anyone. It's interpretation is personal. Likewise the "Got Milk" campaign has had great success because people can reappropriate it for anything. Marketers know that their output is going to be discussed, dissected, reassembled, talked about on the news, re contextualized by the public. In fact, they count on it. But when someone makes a comment that the corporation doesn't like, it should be protected too. Corporations shouldn't be able to just silence legitimate parody or dissent. But they have better lawyers than the artists and private citizens they're suing.

Pirates and re appropriation artists challenge the hoarding of information by recommunicating it to the public. They do not feel that the rights to certain forms of expression should be kept prisoner by private corporations. They're acting as a kind of intellectual robin hood, stealing from the rich and giving to the public.

Here's a great example of what's wrong right now: The 1998 Sonny Bono Copyright Term Extention Act was the eleventh time copyright has been extended since 1960. Disney's lawyers want exclusive control of Mickey Mouse, an image which is so ingrained in our culture that he's run for president.   All of us grew up with Mickey Mouse. Many of us have childhood memories of shaking his hand at Disney World, our families posing for a cheesy portrait wearing those stupid mouse ears. But unlike other elements of your childhood, you can't put Mickey in art. You can't write a book or movie about going to Disney World. You can't paint a portrait of Mickey Mouse. Not without Disney's permission.

It didn't always use to be like this.

Originally, Copyright was intended to inspire creativity by insuring the livelihood of artists and writers. The founding fathers of the US protected works of art under copyright for 14 years. The intent (argued by Lawrence Lessig, a Harvard IP professor who participated in the above Dwyer case) was to block off that particular expression so that other artists wouldn't just keep releasing the same works over and over again. The original phrasing was that copyright should secure "for limited times to authors and inventors the exclusive right to their respective writings and discoveries." All the current discourse is niggling about that word "limited". We've gone from 14 years to 70 years beyond the life of the author, 95 years in the case of a corporation as copyright holder.

Siva Vaidhyanathan of NYU says, "Copyright law rewards works already created and limits works yet to be created, which is precisely what copyright was supposed to avoid. Copyright rewards the established at the expense of the emerging."

Lessig (who is the father of Creative Commons, btw) insists that "always and everywhere, free resources have been crucial to innovation and creativity; ...without them, creativity is crippled." Here, he's talking about the Commons, the body of cultural material we can draw on to express ourselves. He summarizes the case against our copyright culture here:

1. Creativity and innovation always build on the past.
2. the past always tries to control the creativity that builds upon it
3. Free societies enable the future by limiting this power of the past
4. Ours is less and less a free society

In Ourspace, Harold argues that the pirates, who seek to liberate information from those who would control it, ultimately reinforce the real problem, which is the notion of ideas as property.

She thinks that the real avenue for change, the real answer to this problem, is not piracy, but the exploration of collaborative works. The Creative Commons, Open Source Software, Intermittens Magazine -- these are examples of expressions by groups of people. None of them are territorially controlling their ideas and prohibiting them from being used by others. Collaboration under the creative commons (ie copyleft) creates cultural works which others can enjoy freely - not just in the ways Disney wants you to.

[Triple Zero]

Nicely written, and I agree with most of the points youre making.

Is this a partial summary of Ourspace, or is this an idea/viewpoint of yours that you illustrate by referencing Ourspace? I haven't read it, so I also like reading a but of a summary about what's discussed in the book.

[Cramulus]

Is it my viewpoint or Harold's viewpoint? A very interesting question concerning the nature of the topic!  

I have reappropriated many of Christine Harold's points and citations. This post covers two or three chapters worth of really dense text, so I may not be doing it justice. I agree with much of it. I would say it's partially mine, partially hers?

[Cait M. R.]

We've discussed this in IRC before, Cram.

I like the notion of IP, but I think it's gone out of control.

The biggest problem with Creative Commons is you can't live off of it. You can sell it, but who will buy? It's a great idea, to be sure, but not all of us can use it.

I think, personally, something between trademark and patent law for copyright would be good. Say, a short period of copyright "inactivity" where nothing new is being done with the copyrighted work leads to public domaining it, but it can only be extended to (imo) 15-20 years, maximum. How does that sound?

[Cramulus]

The biggest problem with Creative Commons is you can't live off of it. You can sell it, but who will buy? It's a great idea, to be sure, but not all of us can use it.

all of us can use it

many of us participate in this Intermittens thing. Who will buy it? that's unrelated to the value of the expression.

your comment is more about the inaccessability of the mass market - we as civillians don't have access to the marketing tools that corporations do. This isn't a problem with the creative commons itself.

I think, personally, something between trademark and patent law for copyright would be good. Say, a short period of copyright "inactivity" where nothing new is being done with the copyrighted work leads to public domaining it, but it can only be extended to (imo) 15-20 years, maximum. How does that sound?

I have to wonder what it'd be like if we went back to the original 14-year copyright. I tend to think we'd be hearing a lot more remixes on the radio, retelling of old stories, etc etc. People would be re-selling the Beatles albums left and right.  The emerging problem is just what you described - people with access to professional marketing and sales will make mad profit by reselling existing works. We private citizens won't become rich by repackaging Abbey Road.

But I think this is again underscoring the basic problematic premise of

       expression = geting paaaaaid




that's the nature of the beast though, I guess

[Cait M. R.]

I like the idea of getting paid to express myself. It's one of the big reasons I want to devote myself full-time to game development: because I can LIVE off of that. It won't just be something I shove to the side in favor of a house and some food.

I like the idea of ENJOYING what I get paid for, or better yet, getting paid to do something not just enjoyable, but -fulfilling-. That's why I chose game development, why I like architecture and film (and want to learn/do both at some point), why I'm writing a story for a freeware game studio. I want to do stuff that makes me, as a person, feel like I did something fulfilling... without forcing me to give up basic necessities. That's why I don't think of art -> payment as a problem.

[Cramulus]

Don't get me wrong - getting paid for your artistic endeavors is great! Profit is one of the primary reasons people create art. I just don't think profit should be the primary factor in copyright law. It is, but only because the people who are pursuing copyright litigation are doing so for their company's bottom line.

put briefly: Creative expression is protected under the constitution, and our rights to express ourselves are being whittled away because of the strong relationship between ideas and profit.

[Cait M. R.]

Okay, I prefer it put that way.

[Kai]

Very very nice Cram, and very informative.

I think I'm gonna start operating under the 14 year copyright myself. My previous problem with violating copyright has been moral obligation to those who create works I enjoy. Now that I start to think of it in more the context of your above article, I don't feel poorly about it. People shouldn't be penalized for creativity. On the other side of the coin, people who are creative (and almost everyone has some sort of artistic creativity) shouldn't be allowed to become mired in their past works, thus stunting their creativity. This is for their benefit, and everyone's.

I still very much believe in attribution aspects of copyright though, yet another moral obligation on my part.

Also: May I have permission to share this elsewhere?

[Requia ☣]

The current copyright in not 95 years, it is forever, they already retroactively expanded it twice, its just a gimmick to avoid getting smacked down by the courts.

I think, personally, something between trademark and patent law for copyright would be good. Say, a short period of copyright "inactivity" where nothing new is being done with the copyrighted work leads to public domaining it, but it can only be extended to (imo) 15-20 years, maximum. How does that sound?

This is pretty close to the pre-Mickey Mouse law.  It used to be that you got 26 years as long as you declared copyright (something I wish we could go back to, though now that its changed to everything is copyright the logistics of reversing it would be insane), if you wanted, after 28 years was up you could extend it for another 28.

86% of all works in the library of congress were never extended, which is  a measure of just how much culture we've lost in order to protect the mouse and a handful of other still profitable works.

[Rococo Modem Basilisk]

I actually use viral licenses on my stuff :P. It's about as assholish as what Disney is doing, but in the opposite direction. There are enough viral licenses out there (between the GPL/LGPL for code, the creative commons BY/SA for other things, etc) that you can probably apply a viral license to any creative work. On the one hand, it means that advancement is somewhat limited because for-profit companies will be afraid of the changes to the way they determine profits and do business if they fund derivative works of something like this (and likewise, how much the media can actually propogate into their other IP and contaminate it) -- this is already one of the biggest reasons that a lot of for-profit businesses avoid open source software or make absurdly complex special licenses that serve as a buffer (Microsoft and SUN both have their own open source licenses, which although ostensibly compatible with the GPL will legally serve as a buffer such that the GPL cannot infect their code). On the flipside, it means that if a work like that *does* become popular (a minor example, I suppose, is Cory Doctorow's various novels, and a better though less familiar example is the open source community, which has more or less culturally bifurcated from the entire rest of the computing industry) the virally licensed work can spread much faster, spreading the license with it.

Take for example the novella a friend and I are working on. It happens to be licensed under the Creative Commons ShareAlike/Attribution license. If and when we release it, we may or may not end up having an audience of fans. Let's say, optimistically, that it becomes a cult classic: all the fans are legally allowed to make derivative works without asking us, as long as they license it the same way. This means that fanfictions, comic adaptations, etc are all fair game. Crossovers may pop up, and as such leak the licensing potentially into other franchises (at least in the fan community, where all fanwork is already technically illegal the same way that jaywalking and making mix tapes are). Studios by and large will avoid making a film version, because if one is made all the footage, trailers, etc. cannot be controlled for optimal bottomline status -- in fact, they couldn't even have that FBI warning on the DVD, and they would be legally barred from preventing people from recording camrips in the theatre. They could not regulate filesharing, nor could they even prevent other studios from making an adaptation of the same film or prevent people from reselling the DVDs. This doesn't mean they won't make any money at all, it just means that their normal business model would fail to work.

At the point at which there is a saturation of this kind of product around, with viral licensing, the industry would have had to change itself totally to deal with the very different situation. That is my goal.

[Triple Zero]

hmmmmm awesome idea. I will attach SA to my CC licenses from now on.

[The Good Reverend Roger]

I still don't understand how "protecting property rights" = "cramping culture".

After all, it's not like being able to rip off Kipling is going to add to our cultural achievements.

[Cainad (dec.)]

I think the point is that if/when copyright law becomes more than a basic agreement between the government and its citizens that creative work has value and that the creator has the right to protect and pursue that value, we run into bullshit like the Dwyer vs. Starbucks case. Or something like that. I know I'd be pretty upset if I got sued for making a mockery of some company's logo.

[The Good Reverend Roger]

I think the point is that if/when copyright law becomes more than a basic agreement between the government and its citizens that creative work has value and that the creator has the right to protect and pursue that value, we run into bullshit like the Dwyer vs. Starbucks case. Or something like that. I know I'd be pretty upset if I got sued for making a mockery of some company's logo.

The law already provides for mockery and parody.  The judge that allowed that to go to trial should have been shoved off his bench.

If you wish to see the glorious economy that you get with no copyright and/or patent law, just take a good, long look at Bulgaria.