Posts about copyright

Do as I do, not as I say

When Larry Lessig appeared on Colbert last week, the host said no one should remix the show. Of course, right on cue….

[via Laughing Squid]

Hey, Saul

I can’t not respond to Saul Hansell’s nanny nattering at me and other bloggers over the AP Affair.

What the AP and The New York Times’ Hansell don’t seem to realize is how hostile an act it is to send lawyer letters to individuals. They have armies of attorneys. We bloggers don’t. The mere act of sending us a letter can cost us money out of our own pockets. Sending a lawyer letter is an assault.

Saul tweaks me about having a conversation first: “Mr. Jarvis, in particular, often talks about blogging as a conversation. It seems like the A.P. wants to talk, and many bloggers would prefer a temper tantrum to a discussion.” Saul, I don’t think you’re cut out for a career as a playground monitor for you don’t have the most basic skill of the job: recognizing who started it. The AP sent its lawyer letters. It declared war.

And so, Saul, I’d say you should pose this to the AP: Why didn’t it start a conversation — an open conversation — before starting war?

I would have appreciated it very much if Saul had noticed my efforts at conversation namely this post in which I tried to explain to the AP our ethic of the link and suggest that they try it on. The AP’s Jim Kennedy called it constructive.

I think Saul misses an important point made in the blogosphere: that it’s not up to the AP to set the definition of fair use. They can’t rewrite the law. You may say that they are trying to create safe harbor by setting their own rules. From our view, they are trying to put up a fence where it cannot legally exist. All they can say is this is when they will and won’t sue or send their threatening letters. That’s not saying whether they’ll win or should. It’s not so much a safe harbor as slightly shallower water. See fellow big-media blogger Matthew Ingram:

But that’s kind of the point: the AP doesn’t have to offer a “safe harbor” to bloggers or other media sites under certain circumstances. The fair use exemption under U.S. copyright law already does that, whether the newswire likes it or not (and clearly it doesn’t). If it wants to get someone to say whether a few sentences excerpted on a blog qualifies or not, then it can go to court and try to get a judge to do so. But sitting down and trying to negotiate some kind of blanket pass for something that is already permitted under law seems like a mug’s game.

Finally, Saul says it’s silly to talk about boycotting the AP because bloggers don’t pay it (yet). That’s where Saul is farthest off the mark. He’s ignoring the value of links. More on that in the next post.

Only fair

Jackson West at NewTeeVee — one of my daily reads — has an excellent and brief primer on fair use and comment. Nut graphs:

Section 1074 – remember it kids – of the Copyright Act defines the potentiality of a fair use defense as copyrighted work used “for purposes such as criticism, comment, news reporting, teaching…scholarship or research…”

Generally, it’s all about commentary. How can you prove, or how can your entertainment lawyer prove, that the nature of your use of the copyrighted work is critical. A limited excerpt of the work during a review or critique is clear cut fair use.

The rights of the author

Nevermind copyright for the moment. I want to look instead at creators’ rights.

A federal judge just ruled against CleanFlicks’ sanitizing of movies, editing out the allegedly naughty bits and then selling cleansed copies. The judge said this was a violation of copyright. The Salt Lake Tribune’s coverage adds: “The ruling does not affect another Utah company, ClearPlay, which has developed technology in DVD players that edits movies on the fly as they play.” So this ruling does come down to copyright — the right to copy — yet it also raises other issues.

Out of this news comes to opposing views from two web authors. (I love it when that happens. The web should be a neverending Oxford debate; may the best argument win.) Nick Gillespie, editor of Reason, takes CleanFlicks’ side, arguing that it’s our right to remix. Infotainment rules, on the other hand, argues that in this case copyright is a good thing for it is keeping bad things from happening to creative work.

I’m not entirely sure where I come down (yes, mark this day in your history books). On the one hand, I’m encouraging media people to submit their creations to the great remix out there: If you’re remixed, you’re part of the conversation, I say, and the conversation is the new distribution. But on the other hand, I would hate it if something I created under my name were mangled: I hate editors; that’s why I blog.

So get past the rights of ownership to the rights of authorship. When you create something, what rights should you have — ethically and legally — to maintain your creation in its full form, to protect your ideas and thoughts from bastardization?

When I wrote for People magazine, way back when, I wrote a favorable review of Concealed Enemies, a PBS miniseries. As I told the story here, the then editor-in-chief of Time Inc. took it upon himself to change not just the words but the opinions in my review (to make it favorable to his friend and mentor, Whitaker Chambers). He tried to put opinions that were not mine under my name. I said I would resign rather than let that happen. I saw it as a journalistic and ethical right to protect my views and my reputation with them. I won, by the way.

So what if someone took something I wrote here and changed my opinions utterly? What if the so-called Parents Television Council took a post of mine and made me an enemy of the First Amendment and Howard Stern? What if Dell made me into a satisfied customer?

Steven Spielberg wouldn’t allow so much as one “fuck” to be taken out of his Saving Private Ryan and that’s why some stations refused to be caught in a vice between him and the threat of an FCC fine and so they didn’t air the movie. Was that Spielberg’s right? I’d say so. He would rather that his movie not be seen than mangled by someone else.

So in one sense, the CleanFlicks decision is just a copyright fight: You can’t copy and sell a movie. But it raises these issues of authors’ rights. And so does that other technology that takes out the dirty bits for you.

But on the other hand, if you bought a DVD of Private Ryan, don’t you have some rights of use and ownership? Couldn’t you hit a dump button every time the F bomb is dropped if your kids are in the room? How do your rights of ownership clash with Spielberg’s rights of authorship and ownership?

And what if you’re a TV station reporting on the controversy over Ryan and you go into the movie and compile all the scenes with no-no words but show it on the air with bleeps. You do this to avoid FCC fines. Or what if you’re a comedy news show and you take all the bleep words and turned them into jokes: “Motherflower… Goddogged…” You do this to make fair comment on something in the news.

All this is timely around here as I talk about the need to reinvent the book, not to mention the rest of media; the need to get into a conversation; the need to be collaborative, the benefit of the remix; the value of the direct link. And the question often is raised: What is the role of the author in this new world? In journalism, I say that the author becomes more of a moderator, and when you’re seeking facts and information, that makes sense.

But in art, the author is the creator and has rights surrounding that creation. But that may change, too, as art itself becomes more collaborative. So what are the rights of the author? Do copyright and Creative Commons protect those rights? And what are the ethics of the remix? Is linking to the original sufficient? Is permission required? Is fair use a license to quote and thus to comment? Aren’t selection and alteration forms of comment? What rights does the audience have to change? In an age of the permalink and the deep link and the ability to track and compile consumption, in an age when consumption becomes an act of creation, isn’t that ability to just get to the good bits the audience likes a form of editing?

Here’s what Gillespie says:

As a viewer, I am already acting as a “third-party editor” to Apted’s–and every other directors’–films. As a writer, I can sympathize with Apted’s sense of creative ownership and his fear of losing control of his work. . . .

But here’s the rub. There is only unauthorized editing whenever a piece of culture is put in front of an audience. The individuals watching in the darkened theater, the family room, or on a computer screen are constantly making choices, skipping over stuff, misinterpreting things, and more. The audience, alas, has a mind of its own, and that mind doesn’t care about the creator’s intentions. . . .

But the old model, in which a producer produces and an audience passively consumes culture, is over. To be completely honest, that old model was never the way culture worked anyway, but even the pretense of full artistic control is finished in today’s environment, in which individuals have an ever-increasing ability to produce and consume culture on their own terms.

And here is Infotainment’s argument:

In the conversation about the coming digital revolution in books, I argued that many authors will want to keep their books whole–not to cling to copyright for its own sake but rather because sometimes it is the integrity of the work that makes a particular book exceptional: it is of a piece, and every word is essential to making it what it is, so altering it takes something away from the work. Books like that exist. Let’s say, for the sake of the argument, J.D. Salinger’s The Catcher in the Rye and E.L. Doctorow’s Ragtime. Others will have their own examples.

So too with films. Whether you’re colorizing them to get eyeballs not used to black-and-white or chopping them up to make them Palatable for the Pious, you’re destroying their integrity.

It’s a valid argument, and an argument we need to be clear on–and one we will need to stand up for–as the digital revolution continues apace and the Moral Marauders start to take advantage of it

What’s yours?

Copyfights

While many in this country are trying to reduce the length of copyright protection, in Britain, they’re talking about extending it, or so says the head of a British music trade group in the Guardian:

At the moment, copyright protection in the UK for recorded music lasts for 50 years. This means that all the artists who took part in the 60s music revolution will soon see their recordings fall out of copyright and their earnings dry up….

“Who made this stupid law in the first place?” Kenney Jones, drummer of the Small Faces and the Who, asked recently in a Sunday newspaper. …

It is not only the musicians who will lose out. So will British music. The BPI announced this month that 17% of revenue from the UK recording industry is invested in new recordings. This is proportionately more in R&D than the aerospace, computer and car industries.

This investment has contributed to a boom in new British music from artists such as Arctic Monkeys, Corinne Bailey Rae, James Blunt and Kaiser Chiefs. Seven of the Top 10 best-selling albums for the first quarter of 2006 were debut albums. Insufficient copyright protection, however, will reduce revenues and limit reinvestment in new talent. …

I wonder how similar fights are playing out in Germany, France, Asia, and the rest of the world.