Confusion in the Minds of On-line Content Post-ers

The Vanderbilt Hustler printed a short article this week entitle "Facebook: Price of a Profile."  (Online version: "Vanderbilt Students Remain Unconcerned with Facebook Terms Change")  Part of the article discusses why some people in the Vanderbilt community did not care about Facebook's new terms of service, which recently caused such a massive uproar. 

The article also shows us misconceptions held by people who use sites like Facebook or post content on-line in other fashions.  Some of these misconceptions are rather disturbing.  These are smart and probably fairly tech savvy people at a good school, yet they seem to have little understanding of their own rights in their content.  The following are quotes included in the article:

• "...as soon as you join you lose rights because it is posted on the internet." - a sophomore student
• "If you put it on a Web site... It's in the public domain." - a sophomore student
• "As I understand it, the old license gave copyright to the user, while the new one gave ownership to the Facebook corp."  - an associate professor

The first two misconceptions are about posting content online in general and are related to each other in that each student believes that by posting their content online, they have given up all rights to it.  This is not true.  Simply posting content you created on the internet does not mean you give up your rights to it. 

In most cases, the site to which you post your content will require you to agree to license your content to them for certain uses.   The sites will at least require you to license your content to them for the purpose for which you are using the site.  For example, Blogger requires that you agree to license to Google (which runs Blogger) a "worldwide, non-exclusive, royalty-free license to reproduce, publish and distribute such Content on Google services for the purpose of displaying and distributing Google services," i.e. you are allowing Blogger to post your writings.  Other sites, such as Facebook, use a much broader license that includes rights to use your content commercially, change your content or sublicense your content out to third parties. 

These licenses define how the company who manages the site you are using may use your content, they do not mean you have given up all your rights, and it certainly doesn't mean your content is in the public domain.  The public domain consists of works that are no longer covered by copyright protection.  Either the term of copyright has expired, or the creator has chosen to put their work directly into the public domain for anyone to use freely with no requirements (example).  While posting your work to the internet does put out there publicly, it does not put it into the public domain.

Lastly, neither the old or new(revoked) Facebook terms of service gave ownership of the content to Facebook.  The difference between the old, reenacted, Facebook terms and the new terms was that the new terms did not allow users to revoke the broad license included in the terms of service by removing their content.

These misconceptions may tell us a bit about how users perceive on-line content in general, aside from their own postings.  We'll explore that more next time.

Are Human Readable Deeds the Solution?

There's been quite the buzz lately over Facebook's Terms of Service blunder.  One of the many responses to the debacle was a post on the Creative Commons blog entitled "The Value of Human Readable Deeds."  The post suggested that if Facebook had included human readable deeds along with their terms of service, the large misunderstanding by its users would not have arisen.

For those of you who are not familiar with Creative Commons licenses, each license includes three sets of deeds: human readable, machine readable, and the typical legalese.  The purpose of this is to ensure that everyone who needs to work with the license understands what it means, including the computer.

Now, don't get me wrong, I like Creative Commons and think their idea for using human readable agreements along with the standard ones is a good idea.  However, I also wonder if this is feasible.  What might it look like for companies such as Facebook to start using these types of multi-part license agreements?

Contract law issues: Obviously, an agreement between a company and its customers/users involves a lot of contract law.  Without trying to get too technical: If a customer reads the human readable part but not the legalese, is there a meeting of the minds, generally required for a contract to be valid? 

There's also a sort of I'm-a-dummy defense that can be used to show a lack of understanding between the parties if one side of the agreement is deemed not sophisticated enough to fully understand the terms to which they were agreeing.  As well as a kind of click-wrap defense that can be used in some situations where a computer user had to accept the terms in order to continue with a program.  What happens to these defenses?

Company Issues: Do the companies really want us to know what's in our terms of service?  In most cases, these terms of service are not in favor of the consumer, in any way.  Generally people accept it as the status quo and move on.  (The difference with the latest Facebook TOS could be that people realize these TOS concern their own content instead of their use of other people's content.)  In this respect, incorporating human readable deeds could be very beneficial to consumers by requiring companies to create terms that are more fair and balanced.  Companies should not be able to put one thing in their human readable deed and something else in their legal deed because that would probably constitute misrepresentation.

Carry-Over: If online and software companies using human readable deeds became the norm, Where else would the use  carry-over?  Rental leases?  Loan agreements?  Service agreements?  Would the general population develop an expectation of signing only agreements which contained a portion they could fully (and easily) understand?

And, of course the big question - What Will Hold up in Court?  (This question also relates back to the original concerns about contract law.)  The legalese of contracts developed over time because of the need for contracts to be very specific.  (Take a look at the difference in size between a human readable and legal code version of a CC-by license.)  The terms used in these contracts have specific meanings, either given to them by the law, or defined in the agreement itself.  Human readable deeds do not incorporate these terms of art.  This creates more room for misunderstandings. 

In general everyday practice, different interpretations of the human readable code will not matter much, but they will be huge when a disagreement involving one of these deeds goes to court.  How will the two versions of the agreement (human readable deed and legal deed) relate to one another?  What if one party says they were relying on something in the human readable section, but something in the legal section makes that interpretation unsound?  Would the human readable code be thrown out as un-important in deciding true legal obligations, or would it over-ride the legal code because it's what the parties truly agreed to?  There are many interesting questions about how this would play out in court, guess we'll just have to wait and see.

Happy Thoughts Series: Fair Use/Dealing

You knew this one was going to pop up eventually. 

The US doctrine of fair use has been around pretty much as long as the copyright law itself, though it wasn't codified until 1976.  There is also the related doctrine of fair dealing found in many other countries around the world.  For our purpose here in examining our third Happy Thought, we can combine the two.  (For a summary of the history of fair use in the United States and internationally, see Wikipedia.)

Fair use and fair dealing both serve to make copyrighted works (and in a way, copyright law) more accessible to the people.  These exceptions to copyright protection provide a mechanism that allows people to use works in certain situations without having to deal with the complications or expense of  licenses. 

Legislatures, courts and other law-making bodies chose the types of uses that fall under these exceptions based on a variety of determinations.  There is the social benefit aspect to fair use and fair dealing where the encouragement of creative growth and development is desired.  There is the economic aspect that tries to solve the problem of logistically cumbersome licensing requirements for small users.  And there are various other factors like history and culture, etc.

These are all part of the reason fair use and fair dealing are good aspects of copyright.  Like the US Homestyle Exemption of the last Happy Thought, these exceptions are about creating a balance between copyright users and creators that benefits society but still considers the copyright owner.

Is the Music Industry Shooting Itself in the Foot (again)?

Big wigs and lobbyists in the music industry have pushing hard to get performance royalties from terrestrial radio stations.  On February 4th, Senator Patrick Leahy, the same Patrick Leahy that introduced the PRO-IP Act last Congress, introduced "a bill to provide fair compensation to artists for use of their sound recordings." (S.379)  The bill would adjust the current legislation that provides performance royalties for digital transmission of music to include all transmissions.  It also includes provisions for special blanket licenses at set prices for smaller radio stations and public broadcast stations. 

In a world where radio is already struggling, is extorting money from radio in an attempt to save the record companies really a great idea?  But suppose this bill does pass and performance royalties are implemented for terrestrial radio, what would happen?  Here is one vision of the future.  Imagine....

Radio stations stop playing music for which they would have to pay royalties.  There is a lot of good music out there now with creative commons licenses that would allow air play without fees.  There's probably plenty more independent musicians who would gladly allow radios to play their music without paying performance royalties.  There is enough music out there, in every genre, that radios could find plenty to play without including the big record labels.  (UPDATE:  just found this out, there is already an internet radio station pretty much doing this, uses only Creative Commons licensed music.)

Radio could refocus on local musicians and stimulate new touring.  And as listeners begin to become familiar with music using creative commons type licenses, they will find out how wonderfully simple these licenses make so many things.  Can I put up a YouTube video using this song?  The license answers.  Can I play this song at my wedding?  The license answers.  And as more creators see other creators using these types of licenses, the use will spread.  Access to culture will be free-ed up in the sense that the rules will begin to be understandable by the masses.

Sure, it would be a bit strange at first, the music would sound a little different (and the oldies stations might have some additional problems), but people would start to get used to the new stuff, the same way they get used and then start to love new songs on the radio now.  The constant playing of the formerly underground music would turn it into the mainstream.  These artists would then have a market for their music.  The technology is there (and many of them currently use it) to sell their music themselves.  The record labels aren't needed in the same way.

Since the radios will be playing the music, the artists won't need the huge publicity teams for which record labels are still relevant.  They will be completely, officially, obsolete.  (Except for hoarding the old catalogues they still manage.) 

... It's nice to dream.

Happy Thoughts Series: The Homestyle Exemption

This second Happy Thought is a good thing in the US's domestic  copyright law, though it may fall under another category internationally.

Sec. 110(5) of the US Copyright Act is a bit infamous in its own way.  It was the subject of a WTO dispute almost a decade ago.  Although the law was found to be partially in violation of TRIPs, the US has not changed it.  Despite this international aspect, Sec. 110(5) is still a good part of the US Copyright Act.

Sec. 1110(5) allows special exemptions to small bars, restaurants and shops, or bars restaurants and shops that have minimal sound and video equipment who play broadcasts in their establishments.  This covers things like corner pubs with a small television, restaurants that play the radio for their customers, and shops playing music in the backroom that can be heard out front.

The original homestyle exemption was added to the 1976 Copyright Act as Sec. 110(5) after the famous Aiken case.  In Aiken, the Supreme Court decided that the owner of a small chicken shack was not infringing the copyright of rights owners whose work was being played on the radio station to which Aiken had his radio tuned despite the fact that customers in the restaurant could hear the radio. 

Congress amended Sec. 110(5) in 1998, splitting it into two parts: one a narrower version of the original homestyle exemption and the other another variation in line with the original exemption that came to be known as the business exemption.  The amended Sec.110(5) was part of a package deal negotiated and worked out by Congress to protect small users from abuse at the hands of the collecting management organizations but still recognize the right holders' rights by limiting the exceptions in terms of size, equipment and type of performance (i.e. only re-broadcasts).  That is why it is a good thing in the US's copyright law: it shows a successful balancing of interests between users and creators/owners.

Happy Thought Series: We Have a Copyright Law

Although the news is filled with plenty of people upset with copyright law and how it is being used, the existence of copyright law is itself a good thing.

Copyright law gives us a basis from which to work.  It provides a framework in which different licensing schemes like open source and Creative Commons can function; it allows them to choose how the parameters of their licenses function within the larger picture.  (For more, see Dtrizzle's post on Open Source supporting strong copyright.)

Copyright law also encourages creators to share their works.  (There's plenty of debate as to whether or not copyright encourages people to create, so we'll leave that alone for now.)  Most people create because they want others to see, hear and use their work.  They want an audience to relate to their work; they want to speak through their creations.  But, one thing people generally do not want is for someone to take their creation and make millions selling it, even if the creator is attributed as such.  (I'm not talking about including a work as part of a newspaper or other type of compilation that may be commercial in nature; I'm talking about making money solely from someone else's work.)  It goes against our very notions of fairness.  Copyright law allows us to prevent this from happening.  Knowing that they can share their work without the risk of someone running off with it for his own profit gives creators the security they need to feel free to share their works.

Without copyright law, their would be creative anarchy.  The winner would not be the one that created, but rather, the one that got the work to the market first.  And, (as seen in Dtrizzle's post) even some creators who want to encourage sharing will be out of luck.  There may be other ways to afford the same end result without copyright protection, but for now, the existence of copyright law is our first happy thought about copyright.

(If you have ideas about how other laws or social norms could create the same benefits as copyright law, we'd love to hear them.  Please leave a comment.)

Think Happy Thoughts

The beginning of a new mini-series

Spend half an hour trying to gather up a good smattering of thoughts on copyright; you'll find plenty of opinions from a range of perspectives.  But chances are, they will all say one thing: something's wrong, this isn't working.  From claims that the 'law's not working, we need to throw it out,' to 'society's not following the rules, we need to make the law tougher,' with plenty in between, it seems most current discussions on copyright focus on what's wrong. 

From Bridgeport to Tennenbaum, through blog posts and news articles, in  Lessig's Remix and Jenkin's Convergence Culture, we're inundated with examples of bad law, unfair rules and thieving kids destroying the foundations of prosperity.  Well, this Ipper's had enough!  And she's left asking: Where's the love?

Well, we have an answer: Here.  Ip's What's Up is beginning a new series looking at good things in copyright, in domestic copyright laws, in world wide agreements, and in how copyright is used.  We may not focus on positive bites every posting, but they'll be sprinkled in until we run out of good things to say about copyright.  Reform's good, but you can't change what isn't working without understanding what is.

 

Stay tuned...

Remix - A Review (or perhaps just some thoughts)

A few of my fellow twitterites  have asked me to share my thoughts on Lawrence Lessig's Remix.  Now that I have finally finished the book, here they are.

Lessig is to law and technology what Stephen Hawking is to physics.  There's a reason Remix is on airplanes, coffee tables and nightstands around the country, and it's not just because of the pretty colors on the cover.  His stories are familiar, his language easily accessible and his explanations simple, yet thorough.  His message is clear: Our current system is turning our kids into criminals.  "They come to like life as a 'pirate'." However...

Lessig is a lawyer.  Remix is written by a lawyer.  Sounds like I'm stating the obvious, but here's why:  A lawyer is supposed to persuade you, to present his side and convince you that it's the right answer.  He does this by presenting facts and drawing you through arguments down a path that feels logical.  If he does it well, you don't even realize how far you've traveled during the course of his argument.  Lessig does it well.

I'm all for Lessig getting more people over to his side, but the problem is that there are some places in the book where the logic of the argument is stretched just a little too much.  If you're reading and going along with it, you won't notice; you'll probably be on his side.  But, as soon as you catch one of these, you start to feel sort of tricked and wonder where else he's pulled the wool over your eyes.   Hopefully, the sudden realization of feeling duped will encourage people to think critically about what Lessig is saying, help them draw their own conclusions from the information he presents and give them something to contribute to the dialogue on copyright reform.

 

Throughout the book, Lessig consistently interweaves history with the future.  We see not only where we are and where he'd like us to be, but how where we've been fits in with these things.  From the development of technology to the development of the copyright law and, more importantly, the development of the clash between the two.   The book opens with the two in a head-on battle, horns locked together and then goes on to explain how they got that way and how to pry them apart without completely killing either.

The preface and the first section, entitled "Cultures," were a really quick read, but then came section two, "Economies".  It was like someone had stuck a different book in the middle of the one I was reading.  A classmate of mine described it as "a 100 page tangent".  Despite knowing something about open source software and being familiar with Linux, I still found the section hard to plow through and a little off to the side of Lessig's main argument.  Perhaps the tangental feeling is because Lessig is breaking things down so simply.  By the end of the section, you'll really understanding the three types of economies: sharing, commercial and hybrid and their roles in society's relationships to copyright.  (Though I'm still wondering why so much Linux/Unix/etc. information was needed.)

About 50 pages into the book, you get the idea that Lessig would like everything to be released on a cc-by-nc license (creative commons attribution non-commercial), maybe even throw in sa for good measure (share alike).  By the end of the book, he's pretty much said just that.  This doesn't sound like such a bad idea, especially if it's done in the manner of Creative Commons as "an alternative, privately built copyright system," where the system is comprised of those who have chosen to opt into it. 

There's a lot of good ideas in the book and a lot of good observations about society.  Lessig points out that today's society demands access.  It's expected.  It doesn't necessarily follow that this access has to be free, but it has to exist.  Effects of the copyright law, he explains, are interfering with that access.  They are also interfering with the way our culture communicates and creates.  We are, what he calls, a 'read-write' culture as opposed to the 'read-only' culture of the last century.  This point was painfully obvious to me while reading the book.  It felt strange to read something to which I could not post a comment or where I could not click a link to get more information.  I couldn't say, "hey, you're missing the word 'at' in the first sentence of the second paragraph on page 65," or "what about....?"  As a blogger and someone who spends a lot of time reading other blogs, I'm used to a conversation, to words that talk to me, invite me to respond and respond back.  Here, the words were talking at me.

Despite his great perceptiveness about our culture, there are also points in Remix where Lessig seems to be writing, not from the customary ivory-tower, but rather from a Bay-Area bubble.  Scattered throughout the book are examples or comparisons that the reader is obviously supposed to think are ridiculous.  Most people in the Bay Area (of California) would probably have that reaction, many people in other parts of the country, especially the large middle, would not.  In other places, his arguments seem to ignore important "east-coast" (i.e. government) factors.  Lessig himself acknowledges that he is ignoring the US's international obligations for the sake of simplicity when he talks about possible copyright reform - and he does, in the footnotes, offer some suggestions - but these suggestions are short-sited.

Lessig sets out five suggestions for the law to help the law better conform with society and then also some suggestions for helping society conform to the law.  The two might not be meeting at the middle, but looking for change from both sides is an important step that many critical of the current copyright/piracy situation fail to take.

The book finishes with a dramatic, Obama-esque soliloquy that sums up where Lessig believes we're headed and leaves us filled with hope that we can reform not only copyright law, but the entire governmental system.  It's also a beautiful depiction of Lessig's own transition, from the copyright and technology work that made him famous to the Congressional reform on which he is now focusing.

There's a lot to agree with in Remix, there's also a lot to disagree with, but most importantly, there's a lot to make you think.  You'll walk away with a better understanding of us, of what we value, how we communicate and how the law affects us all.  Hopefully, you'll also walk away with ideas on how you can contribute to the debate and copyright law remix.

 

 

In his acknowledgements, Lessig thanks a lot of people, but he also recognizes someone whose work he thought deserved to be presented by the author herself: "Dana Boyd generously shared her rich and extraordinarily interesting learning about youth and creativity.  In the end, I came to believe that the research should first be presented by her."  This work recently became available to the public under a cc-by-nc-nd license.  You can download it here.