On Linux, Software Patents, Shakespeare & the Web

My first love wasn’t poetry but computers. My first substantial work was not a poem, fable or story, but a piece of software written on the Apple IIe. Presently, my primary OS is Ubuntu and I keep partitions free just so I can ‘distro hop’. The term, if you’re not familiar with it, means trying out one distrobution of Linux or BSD (or any operating system) only to remove it as soon as you’ve got it working. Every so often, I use Windows. Windows is like a dependable pony. For the most part, you can trust Windows to keep a steady pace, but that gets dull after a while. I yearn for the unpredictable stallion, the temperamental, wild and maybe ungrateful horse that would just as soon kick you out of the barn; but that’s the horse that runs like lightning.

The beauty of Linux, if you’re not familiar with it, is the vast and varied community developing both the operating system and the software that runs on it. There are hundreds, perhaps over a thousand, different Linux distributions. At the core of every Linux distro is the Linux Kernel. The Linux kernel could be compared to an engine. That one engine is the same in every car, but every car that’s built around it is different, specialized and custom. Many countries produce their own distro. At present, I’m writing this on a distribution called Ubuntu – probably the best known distribution. Sometimes I use Fuduntu. The Turkish government is putting funds behind a beautiful linux distro called Pardus (which I’ve also installed). The Chinese have been developing Red Flag Linux. From Spain you can get Triquel. Each has its own peculiarities, advantages and even disadvantages. What’s incredible though, is that all of these distributions are free and they are developed by a community of programmers who might or might not receive remuneration for their work. They do what they do because they believe in the free and, most importantly, creative sphere entailed by the free exchange of ideas.

To me, there is a striking similarity between great poetry and great programming. They’re both a kind of literature. Great poetry and coding are both jaw-droppingly elegant. A great programmer can do, in just a few lines, what takes the uninspired programmer a thousand lines. Great programming is an art form. When you see it, the first thing you ask yourself is this: Why didn’t I think of that? Just four lines of code can match and outperform 200. When we read a great passage from Shakespeare or Keats, the effect can be the same. They can make the poetry look effortless and inevitable. The same could be said for music. Johann Sebastian Bach, my favorite composer, (in another time and place) would have been a programmer of unrivaled genius. He sets forth his musical ideas with precision and develops them with such a sense of simple inevitability that one could be forgiven for thinking that his music wrote itself.  Bach was God’s sewing machine and his cloth was sound.

What’s so unique about the Linux ecology (and without getting too specific) is the licensing under which the software is circulated. The license requires that anyone can look at the source code. In other words, any programmer is entitled to look at the work of another programmer and, hopefully, tweak and improve the previous programmer’s work. This is a supreme advantage when security issues arise. The openness of the architecture means that anyone — the little kid with a great idea to the computer scientist at CERN — can patch a problem. By way of comparison, all Microsoft software is closed source.  This means that no one — not the curious child, not you, not me, not the computer scientist — can look at  Microsoft’s code. If we tried, we would risk legal reprisals. Such is the case with the brilliant young man, George Hotz, who is presently being sued by Sony. When Sony initially sold their PS3, it was advertised as being Linux capable. This opened a wide world of exploration for kids, teenagers, and even the defense department. Why was the United States government interested in Sony’s PS3? Because it could run Linux. When the natural genius of curious youths opened a pandora’s box of problems for Sony, the corporation forced them and everyone who had already bought the units to disable the Linux functionality of their PS3s. In the meantime, Sony is seeking to brand George Hotz (and the other youths associated with him) as criminals.

The dispute is between the free exchange of ideas, exploration and innovation on the one hand, and a closed, litigious and insular development model on the other. Businesses, justifiably, need to protect their intellectual property. To do so, they’re increasingly using the software patent as a means to assert property rights not just over actual programming but ideas and concepts. (See also here.)

Now, you may be asking yourself, why is a poet talking about software patents on a web site dedicated to poetry? Consider the New York Times article by Scott Turow, Paul Aiken and James Shapiro: Would the Bard Have Survived the Web? You would think, with that kind of firepower, that the authors, one of them teaching Shakespeare at the University level, would have written a more persuasive editorial.

But their editorial doesn’t do justice to the phrase cherry picking. They didn’t just cherry pick, they killed the tree. They draw an analogy between copyright law and a certain kind of Elizabethan “paywall”:

“cultural paywalls” were abundant in London: workers holding moneyboxes (bearing the distinctive knobs found by the archaeologists) stood at the entrances of a growing number of outdoor playhouses, collecting a penny for admission.

Their use of the phrase “cultural paywall” is loaded. They seem to want to imply, without doing the work to support the contention, that the culture (and by that I assume they mean the great poetry and drama that we inherited from the Elizabethans) was only possible because playgoers were forced to pay for content. The analogy, as far as it goes, asserts that the web is a kind of modern day playhouse that lacks a “cultural paywall”. Therefore, no modern day Shakespeare could possibly make a living or “survive the web”.  Fair enough, but their argument is embarrassingly simplistic and glosses over a far more complex relationship among the poets themselves.

For instance, while they credit the very existence of Hamlet to the “cultural paywall”, they completely ignore or are collectively ignorant of the fact that Hamlet was probably a derivative work based on a play by Thomas Kyd. If the copyright laws had been enforced then, as they are today, Kyd would have sued Shakespeare for every nickel he was worth. Hamlet wouldn’t have been possible. In fact, Shakespeare had the reputation, rightly or wrongly, (and early in his career) for being a hack and a plagiarist.

Money changed everything. Almost overnight, a wave of brilliant dramatists emerged, including Christopher Marlowe, Thomas Kyd, Ben Jonson and Shakespeare. These talents and many comparable and lesser lights had found the opportunity, the conditions and the money to pursue their craft.

Yes it did. And if the Elizabethans had anything like our modern laws, money would have kept changing everything. Here’s what Robert Greene, a slightly older playwright, had to say about the young Shakespeare:

‘Base-minded men all three of you, if by my miserie you be not warnd: for unto none of you (like mee) sought those burres to cleave: those Puppets (I meane) that spake from our mouths, those Anticks garnisht in our colours. Is it not strange, that I, to whom they all have beene beholding: is it not like that you, to whom they all have been beholding, shall (were yee in that case as I am now) bee both at once of them forsaken? Yes trust them not: for there is an upstart Crow, beautified with our feathers, that with his Tyger’s hart wrapped in a Player’s hyde, supposes he is as well able to bombast out a blanke verse as the best of you: and beeing an absolute Iohannes fac totum, is in his owne conceit the onely Shake-scene in a countrey. O that I might entreate your rare wits to be employed in more profitable courses: & let these Apes imitate your past excellence, and never more acquaint them with your admired inventions.’

Now, this is nothing if not a searing accusation of plagiarism. He refers to Shakespeare as nothing more than an actor, diminishing his role as an author, by calling him a Puppet who does nothing more than use

Robert Greene

the Anticks, the words and phrases, of the authors who have come before — “garnisht in our colours”. In a sense, the actor is the consummate plagiarist. That’s his job. He mouths the words of the author, but don’t confuse the actor with the author, says Greene.

Greene then goes on to prick his target with the point of his quill. There is an upstart Crow, he says, beautified with our feathers. Still don’t know who Greene is talking about? He drops a hint. He is a “Tyger’s hart wrapped in a Player’s hyde”. This is a sly phrase mocking a line  from Shakespeare’s early play Henry VI, part 3: “Oh, tiger’s heart wrapped in a woman’s hide.” Evidently, the play and the phrase were well enough known that Greene assumed most literate persons (or playgoers) would recognize Shakespeare as the target. However, Greene’s not taking any chances. He next calls Shakespeare a Iohannes fac totum, a Jack-of-all-trades, who considers himself the only “Shake-scene” in the country. Greene all but removes any doubt as to the target of his barbs.

If only Greene and Kyd had had a modern patent or copyright lawyer. Turow, Aiken and Shapiro can rest assured that, yes, money would have changed everything. Were Kyd and Greene the only playwrights who considered Shakespeare a plagiarist? Probably not. If Sidney hadn’t been killed, he probably would have wondered at the many echoes of his own sonnets in Shakespeare’s sonnets. It’s not unreasonable to wonder whether Shakespeare would have survived our modern legal system, let alone the web. The web would have been the least of it.

But there are more problems with Turow, Aiken and Shapiro’s cherry picking.Their argument dies an ugly death when they write that Elizabethan theater’s end,

came in the mid-17th century, at the outset of a bloody civil war, when authorities ordered the walls pulled down. The regime wasn’t motivated by ideals of open access or illusions of speeding progress. They simply wanted to silence the dramatists, who expressed a wide range of unsettling thoughts to paying audiences within.

I hope the irony of this final paragraph isn’t lost on advocates of free and open exchange. Turow, Aiken, and Shapiro, themselves state that the theaters were closed because the “regime” wasn’t motivated by ideals of “open access or illusions of speeding progress”. Nothing so describes the current attitude of corporations like SONY, Apple or Microsoft. They have no interest in “ideals of open access or illusions of speeding progress”, unless it serves their bottom line. (The censors during the time of Shakespeare, likewise, had little interest in permitting plays that didn’t serve their bottom line: power.) When open access competitively threatens the bottom line of modern corporations, they have shown a willingness to use and abuse current copyright and patent law to criminalize whoever is cramping their wallet.

How does this relate to poetry and literature?

Poets, like composers, borrow from each other. Händel’s organ concertos shamelessly borrow whole lines of music from Telemann’s Tafelmusik (Händel liked and admired Telemann). Mozart shamelessly plagiarized an entire opening melody from JC Bach in one of his piano sonatas — a melody from one of Bach’s piano concertos (Mozart befriended JC Bach while a child). Not only that, but Mozart’s first four piano concertos were all orchestrations of piano

JS Bach by Pascal Moehlmann

sonatas by other composers. Bach rewrote Pergolesi’s Stabat Mater as Psalm 51.  The Elizabethan poets and dramatists were constantly borrowing lines and ideas from each other. Shakespeare, Dekker, Middleton, Jonson, all of them  stole whole passages and ideas from  translators and historians like Holinshed and Thomas North. They stole whole scenes from the Spanish poet, novelist and playwright Miguel de Cervantes. The lost play “Cardenio”, thought to be a collaboration between John Fletcher and Shakespeare, was just such a play. Cervantes died in 1616, the same year as Shakespeare. If Cervantes had had a modern copyright lawyer, and had been aware of all the borrowing, he could have died a litigiously happy man.

What if all this went on today? It does. The performer Vanilla Ice was hit hard by Queen and David Bowie for borrowing something as slight as a base line. Such borrowing is embarrassingly trivial compared to previous eras. Try Googling the words Beatles and plagiarism. Every time a composer wrote a set of variations, and made some money from it, they were infringing another composer’s intellectual property. Beethoven wrote dozens and dozens of variations for quick profit and recognition and almost all of them (but for those based on his own melodies) would presently be considered “infringements”.

The real title of Turow, Aiken and Shapiro’s article should have been: Would the Bard Have Survived the Copyright? 9 out of 10 Shakespeare plays probably would not exist, including Hamlet, the play which the authors hold forth with trembling quill.

Yes, writers and authors need to protect their intellectual property, but there’s more to it. There needs to be a balance. I have put all of my poetry, this editorial, and other writings on the web. I have gotten no money in return. Nothing. On the other hand, if it weren’t for the web, nobody would be able to read my poetry or writing. Though I have sent my poetry to dozens of publishers, my poetry has never been published or accepted by an editor. If it weren’t for the web then the body of work represented by this blog would be unavailable to you. None of my poetry or blog posts would be accessible.

Would I like to earn some money from my effort? Yes.

But the ability to reach a world wide audience, even without remuneration, is also worth something. The fact that I can put my poetry and articles on the web means that other artists will be exposed to it. Maybe it will influence them? What if an artist or another poet borrowed from my writing?

Good.

But there’s another side to the coin.

While I want other artists to borrow and be inspired by what I write, there are limits. Some artists and writers issue their works under a Creative Commons License. While I like the principles underlying their licenses, they go too far for a writer like myself. They allow not just the creative reuse of an artist’s work, but allow the wholesale copying and redistribution of that work. Creative Commons claims that their licenses “maximize digital creativity, sharing, and innovation”, but I would dispute that.

If Turow, Aiken, and Shapiro have an argument, it’s that artists like myself ought to be entitled to something. I agree. But where is the balance? I would like Creative Commons to develop a license that would truly encourage creativity and innovation, not just wholesale copying. There’s a difference and the current Creative Commons licenses fail to recognize it, either by choice or because such refinement is beyond the scope of their licenses. That’s too bad. I wish there were a truly creative copyright available to artists like myself.

And that brings me back to Linux, the open source community and software patent law. Programmers are creating their own literature. However, the current software patent law (like copyright law in the arts), threatens to drastically undermine, if not destroy, the spirit of digital creativity, sharing and innovation that created modern computing. If it hadn’t been for Compaq’s reverse engineering of the IBM PC, the course of history would be far different. Ironically, there probably wouldn’t be a Microsoft. Microsoft exists because Compaq dared to reproduce IBM’s BIOS. Their breakthrough allowed any number of business to create PC clones and vastly expanded the market for Microsoft software. Innovation exploded. The burst of creativity is comparable to the burst of poetry and drama during the Elizabethan era.

The doors to the playhouse were a kind of paywall and they were a tremendous boon but they weren’t, in and of themselves, the source and reason for the incredible flowering of literature. Poets and dramatists, though they may have sometimes resented the borrowing, were free to draw from each others work. The genius of the age was made possible by a relatively free and unrestricted exchange of ideas. Marlowe didn’t patent Iambic Pentameter, his “mighty line”.  Sidney, Daniel and Spenser didn’t copyright or patent the sonnet.

If IBM had successfully enforced a patent on their BIOS, nothing would be the same.

Companies like Microsoft, Oracle, SONY and Apple, all in the forefront of software patent abuse, are precisely (and ironically) the companies who benefited the most from the comparative absence of  aggressive and abusive patent enforcement. It should come as no surprise that they are now vigorously (and hypocritically) using patent law to suppress the very opportunities that allowed them to topple IBM. They are our modern IBMs.

Writing software for computers is a creative art. The software that you use everyday is a precise kind of poetry and the computer is its unforgiving audience. I learned to write poetry, in part, by writing for my Apple IIe. I learned to use words efficiently, how to formulate an idea and how to elegantly structure those ideas. The FOSS community, the community from which nearly all Linux and BSD distributions arise, is one where curious children and computer scientists are free to engage their creative talents. To paraphrase Turow, Aiken and Shapiro, they needn’t fear that the “authorities” will order “the walls pulled down”; but the abusive use of patent law threatens to change all that. No individual in the FOSS community has the wherewithal to fight a corporation’s patent lawsuit; and with the alarming proliferation of trivial and over-broad patents, the odds of unintentional infringement increase exponentially. Patent abuse could strangle the FOSS community. They know that corporations aren’t “motivated by ideals of open access or illusions of speeding progress.” They know that, in many cases, for profit businesses would simply prefer to silence their competition, good and bad, worried by “a wide range of unsettling” innovations.

Would a modern Shakespeare survive in our current legal climate? I doubt it.

Though there are limits to such parallels, the current world of art, music and literature has lost much because of overly litigious and legalistic copyright enforcement. A movie like Sita Sings the Blues is breaking copyright law. If Nina Paley, the creator of Sita, had strictly followed the dictates of copyright law she could not have afforded to create her movie. And that would be a tremendous loss to our culture. Correction: Nina Paley writes:

Sita Sings the Blues is in complete compliance with copyright regulations. I was forced to pay $50,000 in license fees and another $20,000 in legal costs to make it so. That is why I am in debt.  My compliance with copyright law is by no means an endorsement of it. Being $70,000 in the hole reminds me daily what an ass the law is. The film is legal, and that legality gives me a higher moral ground to stamp my feet upon as I denounce the failure that is copyright.

Check here for the full explanation. You can be fairly certain that Shakespeare, were he alive today, would suffer much the same fate despite the posturing of Turow, Aiken and Shapiro. How many works of art have not been produced because of these very constraints?

In a similar vein, a balance needs to struck as regards software patent law. Behemoths like Apple, SONY and Microsoft are increasingly using and threatening to use patent law as a bludgeon. They greatly threaten the free exchange of ideas, innovation and creativity. Bad patents can be trivial. They can be “an idea” rather than an actual piece of code. This means that even if a company hasn’t written software, they can sue a programmer who has, simply because the programmer’s idea was similar.

By analogy, the equivalent would be if a poet patented a rhyme like red and bed.

Any other poet to use this rhyme would be violating intellectual property. Yes, software patents, apparently, really can be that trivial. If IBM had pursued the idea of the BIOS under patent law, COMPAQ could not have reverse engineered the IBM PC.

If I have an argument to make it’s that there is little difference between creating software and the creation of poetry, novels, plays or music. A balance needs to be struck. Software is its own literature.  There should be some degree of protection but also an allowance for creativity and innovation. A patent or copyright, as Turow, Aiken and Shapiro would have it, can be thought of as a paywall, but abuse can turn these paywalls into the very opposite of a “cultural paywall”. They can easily stifle and kill a culture’s creative impulse. It’s this fact which the authors overlook, either deliberately or through ignorance when they vastly oversimplify Shakespeare and the abrupt closure of England’s 17th century playhouses.

I’m a believer in the free exchange of ideas for the purposes of art, creativity and true innovation.

Nearly all of my poetry is here, published on the web and free.

All my articles are free.

Greene, Shakespeare, Marlowe, Jonson and Middleton all thrived because there was a balance, if at times uncomfortable, between what was considered private and public. While they might have resented some forms of plagiarism and the unauthorized distribution of their plays, they also benefited from the same. If there was one place where Shakespeare would currently survive, it would be the one place most like the free-for-all that characterized the Elizabethan notion of intellectual property: The Web.

Who knows, maybe Shakespeare would have a blog.

And it would be a good one.

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123 responses

  1. You said:

    While I want other artists to borrow and be inspired by what I write, there are limits. Some artists and writers issue their works under a Creative Commons License. While I like the principles underlying their licenses, they go too far for a writer like myself. They allow not just the creative reuse of an artist’s work, but allow the wholesale copying and redistribution of that work.

    …If Turow, Aiken, and Shapiro have an argument, it’s that artists like myself ought to be entitled to something. I agree. But where is the balance? I would like Creative Commons to develop a license that would truly encourage creativity and innovation, not just wholesale copying. There’s a difference and the current Creative Commons licenses fail to recognize it, either by choice or because such refinement is beyond the scope of their licenses. That’s too bad. I wish there were a truly creative copyright available to artists like myself.

    Later in the article, you cite several examples where many creators had borrowed freely from each other. Is your only objection to CC licenses that they allow wholesale copying and not just modifying? How can there be one without the other?

    Also, your initial analogy isn’t quite accurate. The Linux kernel is itself almost infinitely modifiable, and in fact almost always is by each distro. Heck, I can’t remember the last time I ran a stock, generic kernel in any distribution. They just don’t come packaged that way.

    Keeping that example in mind and thinking about poetry, how can there be a grant to allow borrowing from your work to create something new if we also disallow copying? How do we then judge which is a sufficiently small sample? If we follow the question to its logical extreme, don’t we quickly come back to the Vanilla Ice scenario where a simple bass line was deemed to be too much copying?

    Instead, why not just choose to create a CC licence that allows modification but no commercial redistribution? Wouldn’t that create an environment where you can re-license your code to a publisher for publication? (Think in terms of MySQL’s dual licensing options for one example from the software world)

    • I don’t like the language which allows another “to copy, distribute and transmit the work”. There might be occasions where I would like that license, but generally not. Why not a license which simply says: Free to remix or adapt?

      I wonder if that’s too legally vague?

    • Yes. Sorry for not acknowledging your post earlier. That’s exactly the example that I was thinking of when I quoted the license in its entirety.

    • Is your only objection to CC licenses that they allow wholesale copying and not just modifying?

      Yes.

      How can there be one without the other?

      I gave some examples. Mozart used JC Bach’s opening theme (for his piano concerto) to write a whole new piano sonata. If laws existed then, as they do now, Bach could have sued Mozart. However, this would be an example of the creative use of another’s work without wholesale copying. (Mozart didn’t copy the entirety of Bach’s piano concerto.) Does that make sense?

      The Linux kernel is itself almost infinitely modifiable, and in fact almost always is by each distro.

      Thanks, you’re right. For the purposes of the article though, I think it’s fair to say that each iteration of a Linux Kernel, no matter what distro it finds itself in, has more in common than not.

      Keeping that example in mind and thinking about poetry, how can there be a grant to allow borrowing from your work to create something new if we also disallow copying?

      Again, I can only give examples from the arts. T.S. Eliot regularly copied individual lines from other poets, but only a line and not the entire poem. Look here for examples from Eliot and other poets. I think most of us intuitively know the difference between wholesale copying and the creative reuse of the another’s work. A set of variations is a prime example of one artist creatively reusing the work of another.

      How do we then judge which is a sufficiently small sample?

      I don’t know. I’m not a lawyer and maybe that’s the reason why the Creative Commons hasn’t attempted a license like this?

      Instead, why not just choose to create a CC licence that allows modification but no commercial redistribution? Wouldn’t that create an environment where you can re-license your code to a publisher for publication? (Think in terms of MySQL’s dual licensing options for one example from the software world)

      It’s not a bad idea. I’d like to see something like this tried or least go in a direction like this.

      EDIT: I just want to stress that the artistic world really needs a license like this. Artists could, at the very least, signal to other artists that they’re not going to go all Perry Mason on them when their base line shows up in another singer’s songs.

    • Something like this, then? Creative Commons, Attribution-NonCommercial version 3.0, U.S.:

      http://creativecommons.org/licenses/by-nc/3.0/us/

      I found it just by following this link and answering 2 questions and picking a jurisdiction:

      http://creativecommons.org/choose/

      You are free:

      * to Share — to copy, distribute and transmit the work
      * to Remix — to adapt the work
      *

      Under the following conditions:

      *

      Attribution — You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work).

      Attribute this work:
      Information
      What does “Attribute this work” mean?
      The page you came from contained embedded licensing metadata, including how the creator wishes to be attributed for re-use. You can use the HTML here to cite the work. Doing so will also include metadata on your page so that others can find the original work as well.
      *

      Noncommercial — You may not use this work for commercial purposes.

      With the understanding that:

      * Waiver — Any of the above conditions can be waived if you get permission from the copyright holder.
      * Public Domain — Where the work or any of its elements is in the public domain under applicable law, that status is in no way affected by the license.
      * Other Rights — In no way are any of the following rights affected by the license:
      o Your fair dealing or fair use rights, or other applicable copyright exceptions and limitations;
      o Apart from the remix rights granted under this license, the author’s moral rights;
      o Rights other persons may have either in the work itself or in how the work is used, such as publicity or privacy rights.
      * Notice — For any reuse or distribution, you must make clear to others the license terms of this work. The best way to do this is with a link to this web page.

    • Thanks SG. The only part of the license that would seem to answer my concerns are the “fair use rights” mentioned at the bottom. That said, the license explicitly states that one is free to “copy, distribute and transmit the work”.

      I suppose one could modify the terms of the license but, if I were to do so, I would nullify the first part. That’s half the license. If I’m going to do that then why use the license at all? That’s why I’d like to see the Creative Commons come up with a sort of “creative adaptation” license?

    • I just can’t see how you can get to “That’s why I’d like to see the Creative Commons come up with a sort of “creative adaptation” license?” without allowing copying of at least some portion of a work. The problem is, defining what is a simple modification of a theme or other small quote gets very grey very quickly. Grey areas only make lawyers rich. Everybody else gets poor and deprived, which puts us right back where we are today without licenses like FOSS and CC.

      I think that’s why the GPL, the BSD, and other FOSS licenses chose to draw a line in the sand and say, “You either allow copying and redistribution on our terms, or don’t use our code. Period.” The CC licenses tend to echo the lessons learned in that arena pretty closely for the same reasons.

    • I just can’t see how you can get to “That’s why I’d like to see the Creative Commons come up with a sort of “creative adaptation” license?” without allowing copying of at least some portion of a work.

      I don’t have a problem with copying “at least some portion of a work”. That’s adaptation. The only problem I have is that it permits wholesale copying without any sort of limitation.

      The problem is, defining what is a simple modification of a theme or other small quote gets very grey very quickly.

      I agree. That is the problem. But the term “fair use” is also a grey area but seems to work and is generally understood.

      I think that’s why the GPL, the BSD, and other FOSS licenses chose to draw a line in the sand and say, “You either allow copying and redistribution on our terms, or don’t use our code. Period.”

      The comparison between poetry (let’s say) and code is imperfect. A poem is an endpoint. It represents an artist’s ultimate expression of his artistic identity. Shakespeare didn’t circulate his sonnets with the expectation that they would be tweaked, upgraded, and patched to prevent viruses. There’s no artistic merit or self-expression in simply copying another artist’s work. There can be artistic merit in adapting another artist’s work.

      Software is a starting point. The value of Software diminishes steeply over time. Its merit is in its functionality. It thrives when the sum of its parts can be freely distributed and revised. The FOSS community is a recognition of collaboration’s benefits. Because software thrives through adaptability, a company like Red Hat can be profitable.

      I don’t have to allow wholesale copying of my work to encourage another artist’s self-expression. In fact, permitting the copying of my work impoverishes me and does nothing to encourage self-expression in others.

  2. 1) REALLY liked this article.

    2) I think that there is a miscommunication in the comments above, and I’m not sure from where it stems.

  3. HA – sorry, I accidentally hit tab then enter.

    miscommunication about copying and variations.

    a simpler analogy would be the blues. If I were to wholesale play BB King’s “How Blue Can You Get” note-for-note, that is copying. If I were to play the theme and riff the melody, that could be improving on the original, (or screwing it up completely, I’m not a guitar genius….)

    Thanks again for your article!

  4. Maybe cultural paywall should be slightly rephrased as cultural berlin wall.

    Great article, thanks for your articulate writing.

  5. If you are a US citizen, could you try to capture the main points here (maybe link to your blog) and write to your representatives, us president, and Senator Leahy?

    We have to keep making noise about software patents to fight the noise being made by heavy hitting lobbyists.

    • Leahy is not part of the chorus when it comes to patents and copyright generally. Explain why sw hurts American jobs, creativity, etc.

    • To be more clear about Leahy, if I understand correctly, he is one of the major supporters of stronger IP laws and enforcement. I don’t know his exact view on software patents, but he listens to these large firms that love sw patents (since it helps the very wealthy IP owners block off competition and tax the industries arbitrarily). Explain in particular the injustice sw patents pose to the national resource and competitive weapon that is FOSS and how unfair they are to those without millions in the bank. You have great arguments about how many past works would not have existed. The big problem are process patents. These monopolies add crude to what would otherwise be very smooth gears. We should never tax information dissemination and worse give monopolies on ideas (which is what patents are).

    • To be more clear about Leahy, if I understand correctly, he is one of the major supporters of stronger IP laws and enforcement. I don’t know his exact view on software patents, but he listens to these large firms that love sw patents

      Here’s what I discovered as far as Leahy goes:

      The biggest change would be the move from a first-invented patent system to a first-filed patent system. In extremely simplified terms, the new system would allow the first person to get the paperwork on a particular invention filed and approved to win the patent, regardless who had actually made the product or used the process first. It’s a similar system to that currently used in Europe.

      This affects software patents but, according to my reading, the bigger question is the scope of software patents, a somewhat separate issue. I’ll write Leahy and see what kind of response I get.

    • >> We should never tax information dissemination and worse give monopolies on ideas (which is what patents are).

      Sorry to pollute your blog, but let me just clarify. Software patents (which, if they are unconstitutional, the USPTO and lower courts have been left out of the loop) is a process patent, an information patent.

      All patents are monopolies on ideas but have traditionally been justified presumably because they help even the field where high capitalization costs are involved. But this is not relevant for process patents on consumer goods.. which is what is a software patent. Such patents inhibit many many people because computers and other similar devices are so cheap and accessible (not to mention distribution, manufacturing, etc, of information).

      Do we want to neuter the potential from the Internet?

      Why not ask them to pass a law that prevents patents from being used against small firms? Doesn’t that seem fair and in the spirit of free markets and patents protecting the “little guy”? That would help add fairness to the game a lot and avoid a large amount of stifling as well even if they foolishly kept most software patents around. [Patents are not $0 and automatic so greatly bias against small inventors.]

      …oh, and sw is very complex and each product must leverage a great many wheels.

      If you find the time to read a longish “fake amicus brief”, consider reading what I wrote (but did not finish) on Fair Use for patents: http://www.tofreeornottofree.com/SCOTUS_Amicus_Curiae_Brief__i4i_Microsoft_2010/Amicus_Curiae_brief_20101217.html

      [One of my biggest peeves of patent law is the very low bar of inventiveness. Another peeve is how much prior art (like billions of lines of sw) is never looked at by the USPTO, which is supposed to be the entity that certifies that they have done a good job and prior art likely does not exist. If the USPTO can't afford the cost to cover the prior art, why should each defendant, who is much smaller than the us gov, be expected to do so?]

    • >> The biggest change would be the move from a first-invented patent system to a first-filed patent system.

      He supports first-to-file? I’m not sure.

      First-to-file is a great way to lower costs a bit in suits, but to add even more unfairness to the unfair system. Presumably it also goes against the concept of supporting independent invention (another major flaw of our current system). First-to-file would provide a very easy path for all of these companies that have millions to spend on patents, to spend all of their time reading over open source and patenting it. Talk about rewarding the wrong folks and hurting innovation. [btw, people can already copy foss, but at least the legal chance to prove some degree of prior art exists this way.. lowering the incentives to actually do that too frequently] I can imagine Microsoft and IBM “inventing” everything being discussed in FOSS mailing lists an seen on git development branches.

      >> the bigger question is the scope of software patents,

      What I mean when I say “scope” is that the patents are broad in terms of the types of inventions (sw apps) they cover. This is a direct result of the very low bar to inventing: *non-obvious* to a person having *ordinary* skill in the art. This is exactly the sort of law you want if you want to stifle your best and brightest.. and even your pretty smart as well as your merely average (but who come upon the *non-obvious* after a few weeks of diligence).

      And since everyone has access to software development, this means millions of people potentially can be tied down by the very first of those people that patents the idea that came to their head (and heads of many others) that passes that bar: *non-obvious* to a person having *ordinary* skill in the art.

      From a statistical point of view, it will very likely be someone of average skill to both recognize something as patentable and to rush with only the broad “non-obvious” patent claims while most greater than ordinary-skilled people have skipped right over that (to them) obvious point to work on the more interesting details and obstacles. .. Oh, and you need to be wealthy.

      To add to the wealthy point, in a good size piece of software built by a few over a few months you can find many lines of code and many things that can be patented. Copyright (auto and $0) means that all of those lines are covered no matter how wealthy or poor you are. Patenting many of those ideas, however, is something only firms like IBM can afford to turn over. And because the bar is so low, in fact, IBM and similar giants can put together an assembly line of average sw developers to crank out the patents. [There is not much exaggeration to what I am writing.. and do look at patent claims to see how broad/obvious they are to many in industry and sometimes even outside industry.]

      So the wealthy can monopolize thought all over the place. They are granted government monopoly subsidies, while most people can’t even afford to play the game to any significant degree (never mind that they might not want to because it takes away from time building improved products, improving algorithms, servicing customer needs, and creating new innovations). Wasn’t the patent system supposed to help the “little guy”? That is a joke, though Leahy can certainly help it come true if he wants.

    • First-to-file is a great way to lower costs a bit in suits, but to add even more unfairness to the unfair system. Presumably it also goes against the concept of supporting independent invention (another major flaw of our current system). First-to-file would provide a very easy path for all of these companies that have millions to spend on patents, to spend all of their time reading over open source and patenting it.

      However, the flip-side is that first-to-file makes it easier for a small business or individual to file for a patent. That’s the intent at least. An individual, for example, might not have the wherewithal to actually produce an invention based on a patent. A large corporation would. As the article says, the law which Leahy backs would bring US patent law in line with Europe’s.

      However, I don’t think these rules should be applied to software. My feeling is that software should be treated more like literature; and programming, in a sense, as an art form. One can’t patent the idea of painting a nude, for example. One also can’t patent the idea of ekphrasis. At minimum, a different kind of balance needs to be struck when it comes to software.

    • >> An individual, for example, might not have the wherewithal to actually produce an invention based on a patent.

      I agree software is different and, if exempted, then first-to-file would not be an issue.

      But I don’t believe anyone today has to produce an invention, so I don’t know what you mean. For software, you do not have to write any software. For other inventions, you do not have to provide a prototype of any sort. You merely describe the invention and make broad sweeping claims that need only pass a very low non-obvious to a PHOSITA bar.

      In any case, the problem is that without taking software out of the picture, first-to-file appears to allow professional patent writers to copy others’ inventions and easily beat them to the patent office. While others come up with ideas publicly, and this is how FOSS works, those with money are incentivized to copy them and spend their time writing patents off existing great ideas (that others might otherwise take to the patent office before you).

      Have you seen those commercials on TV offering “inventors” to help them patent their inventions? Well, that will change if you are not require to be the first one to come up with something. Or how about contests sponsored by large firms (with many patent lawyers) where people invent something and are awarded a prize? What leverage does the inventor have now and how can they beat out a professional patenting organization to the patent office?

      There must be details lurking in there to prevent these exploitations, but what I suggest above seems to me to follow from the idea of first-to-file. And I don’t know how things work out in Europe.

      Instead of Europe copying the worst from the US and the US copying the worst from US, I hope we do the opposite.

    • Yes, the first to file adds clarity.

      I guess the devil is in the details. For example, whatever name you give this, will prior art count from the date of filing or will it still count from the date the filer claims they conceived of the invention?

      Either way, the difference may not be too large and each would be bad for software.

  6. Creative Commons will go far in helping your works be leveraged by enough creative “little soldiers” to help create culture that, together with many other collaborations, will help displace big corps as the “owners” of so much culture.

    You can make money, to throw one idea out, by offering to turn your poems into personalized birthday songs or many other things.

    In other words, CC licenses are great at improving your brand, reaching a wider audience, allowing a mass movement behind the work (if you allow derivatives),.. all of this opening up many doors to earn you money through endorsements/partnerships and through your time. Remember that most people make their money by trading their time to do “easy” work, variations on work you already did once.

    techdirt has many case studies of people making much more money only after they allowed widespread release of digital versions of their work online. Nina, to name one, was told at one point that maybe she’d make $20K over the duration of copyright for Sita. She made $140K after just one year (though probably the best year and she was also already savvy I would think).

    And CC-by-sa is attractive if you like CC and allow derivatives because it offers levers against any that want to commercialize (they must release back to you so you too can use their contributions).

    Anyway, to challenge the big guns (eg, Sony), we will need extensive collaboration among many different skill groups. We need writers, artists, sw devs, etc.

  7. Pingback: Code is Like Literature | Mohawk Political

  8. Pingback: On Linux, Software Patents, Shakespeare & the Web

    • Looks like I’ve infringed on his idea? :-)

      Doesn’t surprise me that I’m not the first. Restating the idea can’t hurt though.

      [EDIT] If I had written a piece of software and the prior author had patented the idea of code as literature, then the prior author could force me to remove my post and sue me for patent infringement.

      I need a lawyer.

    • Yes, like reusing the English language is also a good idea (ie, we reuse a heck of a lot and for good reasons); we all depend very much on each other.

      Ideas also work their way subliminally or at least can be regenerated when new people are placed in old contexts. So why should only one person get credit?

      Which reminds me .. about publicity rights. This is the idea that if someone takes a (eg) picture of you, a famous person, then you should have control over what is done with the picture. Well, how about the many unimportant Joes and Janes in the background? How about the architect, construction worker, painter, gardener, or any of those who helped shape the scenery? All of these people contributed to the final work: that beautiful picture over which one single entity (the one pressing the camera button) is endowed with entire monopoly rights for maybe 100 years.

      The monopoly idea on information doesn’t work except in limited contexts (including very few years). The Internet and digital revolution are showing how badly those fail. We give all credit to one and deny all others that played a part and/or even deny the ability of others to likewise come up with similar material.

      [Another item that came up in a recent conversation I had.. why do we pay only a few bucks and get no criminal treatment for speeding and essentially putting lives in greater danger of death, yet have to pay maybe millions of dollars and criminal treatment if we download a few scores of digital files -- which is nothing but information sharing and can certainly work out to promote the progress? ... Separately, we need a Constitutional Amendment that punishment has to fit the crime. I think the current SCOTUS has rejected that notion as being what the 8th or 5th amendments are about.. thereby allowing punishments that are totally out of proportion in many cases. Sure, it's not them rotting in jail or having their life turned upside down.]

    • Copyright is tame, in principle, next to information patents. This is why I have been very tolerant of copyright while attacking information patents. It’s not that copyright is weak, but that it is more respectful by being in theory much more narrow. And share-alike/copyleft licenses allow one to give up those restrictions and create an environment where no one can exploit everyone else that is sharing.

      However, copyrights in practice do allow blocking of significantly new material that uses existing works. We’ve all seen youtube videos of a baby dancing playing some song in the background. Artists have sued to have that stopped. That should not be. It adds a high cost to society and stifles very much. Essentially, there are potentially too many costs and liabilities to creating anything that leverages your environment. If artists got nothing, but that is not true. If we instead have “truth” laws, then, artists get credit by law, and this certainly works its way back to revenue opportunities.

      Another problem with copyright law is that it fails to recognize that as a work becomes popular, it becomes a part of society, of the public, of culture, of what people think about and want to leverage. These works become a part of English, if you will. This should imply that the author loses rights (much earlier than the copyright duration would otherwise allow). This is not bad since when this happens, the author has widespread recognition already and has had and will have lots of opportunity to make significant income. To ignore this is to stifle new creativity and communication/speech/teaching/etc.

      Another problem, is that we don’t have inalienable protections. Instead, those with lots of money and control of access points in society can sit back and wait until a starving artist comes with had in hand. Then they offer some food and shelter in exchange for the powerful copyright monopoly. The end result is that the artist gets a little, but society loses a lot. And it has happened many times that after the content creator gives up the copyrights, they can’t do many things later on with their very own work. They might be out of a job and can’t even sing the songs they wrote or quote extensively from the pieces they created. So we can make copyrights or at least some component of it inalienable and or allow third party owners to lose rights under a fair number of scenarios. Remember, some people don’t create content but they have money and are master traders or otherwise have lots of leverage. These people should not end up owning society. If copyrights can be traded and they are powerful it is but a matter of time before most such valuable copyrights are in the hands of less generous folks who are good at accumulating assets. Society and the originating authors suffer.

      So the ideal solution is to weaken copyright and have creators retain more rights.

      This said, authors can in fact give up many rights back to society voluntarily. In this example of giving up rights, it isn’t one who benefits while all others lose out, it is everyone benefits, so this case is different than what was just covered above.

      I think we need to encourage this giving up of copyrights back to society. Copyright monopolies would be like training wheels. Once you have a business model in place where you know that all you need to do is give away your work and people will come to you for scarce items related to that (including come to you asking for your time/skill/knowledge/etc), then you can drop the training wheels and release the work into the wild via a sharing license. In this case, people have incentives to be generous and support you. You have an improved brand. You are the authentic thing, and you are a cool person that enables “me”. I think this is where Nina and many others artists were when then used CC or similar licenses. There endorsement now had value. People wanted to support continuing and future works. People wanted the authentic merchandise. People wanted to pay to hear the artist speak. People wanted to pay the artist to give them something special and exclusive.

      Anyway, information patents are no such thing. They don’t allow independent creation, are much broader, have no significant and officially recognized fair use, disrespect research, attack many small commercialization efforts, affect many many people’s ability to create new content, etc, etc, etc.

    • Thanks Jose. I’d agree that the analogy between copyright law and patent law only carries so far.

      When I read the article in the NY Times I was immediately reminded of the current software patent debate. It immediately occurred to me that if the Elizabethans had been subjected to the same litigious copyright environment we have now, the era would have been famous for its lawsuits rather than its literature. Software patents, according to what I’ve read (and most of us read the same stuff) seem just as threatening, if not more so. It might have been a mistake to throw together the effects of copyright and patent litigation, but there are parallels.

      If copyrights can be traded and they are powerful it is but a matter of time before most such valuable copyrights are in the hands of less generous folks who are good at accumulating assets. Society and the originating authors suffer.

      Right, this is exactly what happened to Nina.

      I don’t know if there are any parallels, but software development is unique in that there are two parallel development models: closed source and open source. I can’t think of any other industry that is comparable. It’s not like there’s an auto maker who is building and distributing cars for free. I can’t think of any other “for profit” industry that is, implicitly, competing with the equivalent of a FOSS community. Can you? The nearest parallel would be the arts.

      It seems to me that this is where software patent law falls short. It fails to recognize the open source model unique to software development. Unlike building cars, or IPODS, or computers, almost anybody of any age can write great software. Software patent law, in effect, threatens to close out open source development.

  9. The comparison between poetry (let’s say) and code is imperfect. A poem is an endpoint. It represents an artist’s ultimate expression of his artistic identity. Shakespeare didn’t circulate his sonnets with the expectation that they would be tweaked, upgraded, and patched to prevent viruses. There’s no artistic merit or self-expression in simply copying another artist’s work. There can be artistic merit in adapting another artist’s work.

    I don’t have to allow wholesale copying of my work to encourage another artist’s self-expression. In fact, permitting the copying of my work impoverishes me and does nothing to encourage self-expression in others.

    I would suggest that counter-intuitively, it’s not copying that impoverishes you at all. I would contend that the biggest issue facing any artist is not stealing, it’s exposure. Take the world of science fiction and fantasy as one example. Like poetry, it’s not a genre that has much in the way of a mainstream following. (Extreme examples like Avatar, Lord of the Rings, and Star Trek are the exception, not the rule.)

    I know of one writer, Eric Flint, and one publisher, Jim Baen, who thought long and hard about these issues back in 2000. They decided to turn the problem on its head. Between them, they created a wholly new way of advertising that has grown tremendously. I’m referring to Baen.Com’s Free Library.

    As to how well has it done? There are two sets of evidence available. The first is documented in Eric’s on-site columns that he has labelled as his Prime Palavers, especially numbers #6 and #7 #6 gives the concrete sales numbers from several novels that have been listed in the library while #7 expands upon the marketing strategy in more detail.

    The second example are the CDs full of books that Baen Publishing has released as an additional feature of certain hardcover releases. I’m looking at one right now. The label on the CD has this:

    This disk and its contents maybe copied and shared but NOT sold

    Loading this CD; I find 13 books (including 3 audio books), a fanfic section, a roleplaying game, an art gallery (that includes cover art, maps, etc. from the books), and other extras.

    And boy, have those CDs spread! Googling for the phrase, ‘ “Baen CD” ‘ turns up over 6,000 results. The phrase ‘ “Baen CD” download count ‘ turns up over 400. Hitting the top one on the list at the Fifth Imperium’s Baen CD page shows 24 CDs available and several more that they haven’t gotten around to loading up.

    That one page has been visited more than 1,200,000 times in not quite 6 years. I think it’s safe to say that somewhere north of 100,000 CDs have been downloaded from there, don’t you? And yet Baen and the authors included don’t see a problem with this. They see it as free advertisement.

    BTW, this site is mentioned mentioned in passing by Eric in PP #7: “(Dahak is a web site which collects, with Baen’s permission, the snippets of upcoming novels posted in Baen’s Bar by various authors. You can find it at: http://jiltanith.thefifthimperium.com/)” So, clearly Baen Publishing is well aware of what is happening with their attempt to get people to copy (some of) their material and they couldn’t be more pleased.

    So. At least one publisher has managed to convince not just one, but dozens of authors that it’s worth their while to freely spread some of their works as far as possible so that their names may be known. Although they don’t specifically call it out, from my point of view their stance looks like the legal equivalent of the Attribution-NonCommercial-NoDerivatives-US Creative Commons license:

    You are free:

    * to Share — to copy, distribute and transmit the work
    *

    Under the following conditions:

    *

    Attribution — You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work).

    Attribute this work:
    Information
    What does “Attribute this work” mean?
    The page you came from contained embedded licensing metadata, including how the creator wishes to be attributed for re-use. You can use the HTML here to cite the work. Doing so will also include metadata on your page so that others can find the original work as well.
    *

    Noncommercial — You may not use this work for commercial purposes.
    *

    No Derivative Works — You may not alter, transform, or build upon this work.

    With the understanding that:

    * Waiver — Any of the above conditions can be waived if you get permission from the copyright holder.
    * Public Domain — Where the work or any of its elements is in the public domain under applicable law, that status is in no way affected by the license.
    * Other Rights — In no way are any of the following rights affected by the license:
    o Your fair dealing or fair use rights, or other applicable copyright exceptions and limitations;
    o The author’s moral rights;
    o Rights other persons may have either in the work itself or in how the work is used, such as publicity or privacy rights.
    * Notice — For any reuse or distribution, you must make clear to others the license terms of this work. The best way to do this is with a link to this web page.

    Food for thought. :-)

    • Thanks for the information and link. That’s cool.

      Sounds like what I’m doing with my blog is essentially what Flint and Baen are doing. It’s free and it all could be considered advertising. I’m going to check out their site though. I’ll be interested in finding out how they turn their advertising into revenue.

      I’m not hidebound about this.

      I have had a bad experience with the CC license. I had the contents of another blog copied, word for word, post for post. Seriously, it was a duplicate of my blog. The other individual didn’t credit my work as required by the CC license so I was able to send them a DMCA take down notice. It left a bad taste. If they had put my name on the duplicate posts, there would have been nothing I could have done about it. That’s what bothers me.

    • The real secret seems to be, “some of” their works are carried this way. The idea is to get people hooked, then lead them to Baen.Com and Webscription.Net so they can feed their craving. Let me tell you from personal experience; boy, does it work! ;-)

    • Say, this conversation got me re-reading some of Eric’s material. I found the following in #6. It looks like it’s not just the not-free books that are doing well!

      (BTW, sorry for losing the table formatting. I don’t know if it’s possible to get them into a blog comment.)

      Let’s now look in closer detail at the progress of another title in the Library, a novel I co-authored with David Drake: An Oblique Approach, the first volume in the Belisarius series. I think these figures demonstrate the impact of the Library more clearly than any other.

      An Oblique Approach went into the Library a few days after Mother of Demons-i.e., it’s been available for free for a year and a half now. That novel first came out in paperback in March of 1998. (There was no hardcover edition.) Here are the royalty figures on that novel, beginning with the first period for which figures are available and ending with the last. The first column gives you the royalty period; the second, net sales of the book as of that period; the third, the current sell-through; the fourth and last column, the new sales which took place during that reporting period:
      Royalty Period Net sales Sell-through Sales this period
      July-Dec 1998 30,431 70% 30,431
      Jan-June 1999 35,977 80% 5,546
      July-Dec 1999 36,812 78% 835
      Jan-June 2000 37,607 77% 795
      [An Oblique Approach goes into the Library mid-way through this period]
      July-Dec 2000 39,268 77% 1,161
      Jan-June 2001 41,172 77% 1,904

      The most interesting-and unusual-aspect of these figures are the ones on the right, in the column titled “sales this period.” From the beginning, An Oblique Approach has enjoyed an excellent sell-through, so it would be surprising to see much change there. (The average for SF paperbacks in the industry as a whole is no better than 50%, and probably a lot closer to 40%. In short, in terms of sell-through, An Oblique Approach is doing almost twice as well as the average.)

      The overall sales figures are not especially surprising either. An initial “out of the gate” sales figure of about 30,000 is nothing outstanding, but is eminently solid for a paperback title. (The average paperback sells, traditionally, about 15,000 copies-but the actual figure has probably been lower for several years now because of a “soft” market.) And, given that the standard experience is that 80% of a book’s sales happens in the first three months, it’s not surprising that the sales are concentrated in that period. In the next period, January-June 1999, the novel had a solid 5000-plus sales. Thereafter…

      What usually happens. Within a year after a novel comes out, the sales usually drop right through the floor. Thereafter, sales steadily dwindle away. And, sure enough: in the third and fourth periods, An Oblique Approach sold considerably less than a thousand copies each period-835 and 795 respectively, showing the expected slow and steady drop.

      It’s what happens next that is significant. Because, all other things considered, those “sales this period” figures should have kept steadily dropping. Slowly, perhaps, but what most certainly shouldn’t have happened is a sudden rise in sales-and a rise which increases in the next period.

      Nor can this be explained, as the sharp rise in sales of Mother of Demons perhaps can, as the result of me becoming better known as an author. David Drake, not me, is listed as the lead author of An Oblique Approach-and Dave has been a very well known SF author for twenty years. Granted, my increasing popularity as a writer was undoubtedly responsible for some of that increase. (Just as, for that matter, the fact that Dave’s popular Lord of the Isles and With the Lightnings series started coming out during this period undoubtedly attracted some readers also.)

    • You said the novel came out in paperback. Was that self-published or through a traditional publisher?

      If it was traditionally published, the rights must have reverted at some point? If the book was in paperback, I assume it wasn’t for free. Was it for free once it went into the Library or did it go behind a paywall?

  10. I’ll admit that I did not read all of the comments, only approximately the first half, so it is very possible that this is a repeat.

    I notice you say in the comments that you don’t like the “to copy, distribute and transmit the work” part in http://creativecommons.org/licenses/by-nc/3.0/us/. However, I think you may just be misunderstanding? From my point of view this works for you perfectly, let me explain:

    The copy, distribute, and transmit permissions are modified by “You must attribute the work in the manner specified by the author or licensor (but not in any way that suggests that they endorse you or your use of the work). ” and “You may not use this work for commercial purposes. “. Therefore, they can take your work and show someone “Hey, look at this cool poem I found! The author of poemshape.wordpress.com wrote it and it is awesome! <text of poem" but not "Hey look at this awesome poem I wrote “. Because of the non-commercial clause, they also would not be able to put the poem in anything that is commercial (this has even been interpreted as meaning it can’t be published on a web site that gains revenue from advertisements) without your permission. I think that covers the copy, distribute, and transmit problem.

    As far as remixes is concerned, I think they would be required to cite you as the inspiration but then do whatever they want with the rest. I’m not sure if the non-commercial clause applies there? If it does, then they wouldn’t be able to sell their derivative works without your permission, but then that just means they can ask you and you can even get some of the profit from their work if you want, or just let them use it.

    In any case, I’m not the best writer so that may not have been clear. I am also not a lawyer, so I could be partially wrong. While I really would recommend talking to a lawyer about what exactly the license would mean, I think it could work for you.

    Cheers,
    Chris Carpenter

    • Just FYI, I foolishly tried to use lesser than and greater than signs to show where the text of the poem went in my comment, and it of course got flagged as an HTML tag :P. So it should have read:

      “Hey look at this cool poem I found! The author of poemshape.wordpress.com wrote it and it is awesome! [text of poem]” but not “Hey look at this awesome poem I wrote! [text of poem]“.

      Sorry about that!
      Chris Carpenter

    • Thanks Chris. My problem with the CC license springs from actual experience.

      Another blog of mine was under a CC license. As it turns out, another individual was copying the entire blog, word for word, post for post. His blog was an exact duplicate of mine. The only mistake he made (in terms of the CC license) was in not attributing the work. I sent a DMCA take down notice and he removed the “blog”.

      However, what if he had attributed the work? Then there would have been nothing for me to do. He can create an exact duplicate of my blog. The problem then arises: What if I wanted to sell advertising space on my blog? Any advertiser would see that a duplicate blog exists. That greatly diminishes the value of my ad space. So, even though the other guy abides by the terms of the CC license, I still, potentially, take a big hit. This is where the CC license seems problematic. Also, amending the terms of the CC license doesn’t apply to prior use.

  11. You said the novel came out in paperback. Was that self-published or through a traditional publisher?

    If it was traditionally published, the rights must have reverted at some point? If the book was in paperback, I assume it wasn’t for free. Was it for free once it went into the Library or did it go behind a paywall?

    Actually, that quote comes from Eric’s Prime Palaver #6 (see link to it above). He was talking about one of David Drake’s novels. To answer your question about availability, “An Oblique Approach” is still available in multiple formats; paperback for $6.99, ebook for $4.00, and free online at Baen.Com’s Free Library. (Not to mention the many copies that must be out there on one or more of those BaenCD images!)

    This is almost 12 years past the date of initial publication by Baen, btw.

    Think about that. 12 years past the date of publication, a science fiction paperback is still selling well enough to get listed at Barnes and Noble, Amazon, and Powell’s Books, its ebook version is still available, and yet it’s also available for free. Is it still available for purchase in spite of, or because of the fact that it’s available for free? David Drake clearly thinks the latter, or do you think he would still have it in the Free Library?

    “Things that make you go, “Hmmm…”” (/Arsenio Hall) :-)

    [Edit:] Fixed. I also wish WP offered previews.

    • That’s a great anecdote. If I could get my poetry published and read through a traditional publisher first, then there might be a parallel. I would still like to see a CC license allowing creative adaptation while restricting copying, distribution and transmission. Are Drake’s books licensed with any of the creative commons licenses? Nevertheless, I take your point. I would have to figure out how to adapt Drake’s example to my own work.

    • Unfortunately while Webscription has expanded quite a bit from its humble beginnings as Baen’s online ebook store, they haven’t added poetry. They currently list categories of Non-fiction, Paranormal Romance, Science Fiction, Speculative Fact, and Young Adult from several different publishers:

      Ace Trade
      Baen Books
      Del Rey
      E-Reads
      Ford Street Publishing
      Gallery
      Night Shade Books
      SRM Publisher
      Subterranean Press
      Yard Dog Press
      Tor Books

      Any of those look like a publisher that you may have dealt with in the past? They might have their own notions about how to do a similar set-up to Baen’s.

      Another possibility strikes me. What about following a similar model to some successful webcomics? Put your whole archive up for free and sell paperbacks based upon limited runs? I’m thinking in terms of what the guys who write Sluggy Freelance and Schlock Mercenary do.

      Lots of business models out there. :-)

    • OK, before I respond to anything else, I’m just amazed at all the help being offered.

      It’s hard for me to see how the standard Creative Commons license would benefit me, but I could be wrong. What’s interesting about Nina’s work is that I don’t think she would have considered the CC license if the songs she used had been Public Domain (as they should have been). Although matters seem to have worked out for her, I wonder if she will continue (or already has continued) to use this license? Is she pleased with the outcome?

      I just sent her an E-Mail asking her the same questions and inviting her to drop by.

    • >> Lots of business models out there

      And that’s not even looking at more complex collaboration/derivatives where, eg, you would mesh the storylines/poetry with animation, video games, ordinary games, etc.

      techdirt.com has many case studies one might want to go over. See for example a recent one on TED. http://www.techdirt.com/blog/casestudies/

    • I’m not speaking for Nina, but, from what I remember her writing, she really appears to want to see a world without copyright. She has contributed short animations to questioncopyright.org (the domain name is the clue), and I think has found/created a “licensing” brand/scheme to suit her over the flaws she found in CC: http://copyheart.org/

      As for receiving help.. don’t you think I am receiving help as well? Also, I might never get over all the free software that exists and will exist. It’s about more than $0 apps; it’s all the free blueprints (that nerd in me runs deeply).

    • OK, here’s what I’ll do.

      I’ll be the experiment. I’ll take a close look at the CC licenses (and anything Nina has to offer) and I’ll apply the license to my blog.

      What have I got to lose? Nothing (since I’m making nothing). I’ll be the experiment. I’ll put my lack of money where my mouth is. Obviously I’ll have to do more than just the license, but let’s see what happens. If I prosper, you can use me as an example for the next person who’s skeptical of the CC license (or similar licenses).

    • Open content/open source is a path to peace, enjoyment, and prosperity on a wide-scale, which is what makes it really interesting and exciting. Maybe every generation needs hippy love of some sort (since that was just a little before my time). Really, I get a kick out of learning and being able to create and then enjoying the stuff others come up with by the truckload. The more who partake, the more goodies and the more people there are whom you can identify with — oooooooo, the excitement of DISCOVERY!!

      [told 'ya.. I'm nerd to the core]

    • upinvermont, although I recently posted a link to the Sampling Plus thinking that might be what you want, I want to stand behind the essence of everything sgtock has said. I don’t think you’ll want to stick with cc sampling once you have experimented and/or thought things through.

      Monopolizing ad space for exact copies of your work is not likely going to make you too much money at least not until you have a large established name. I think you will have much more success if you give away (with attribution link that makes its way back to your website) as many copies as possible for free, and then seek partnerships to sell scarce goods like books and other merchandise. You want 10 million people to potentially come across your work if you think it is decent material, and if having 100 mirrors helps you reach that number, you should seize it. [You may even want to make amends with the person that was mirroring you. S/he seems like someone who believed in your work.]

      Also, don’t shut down potential partnerships. Many people may never invest seriously in your work if you don’t give them some space to work with. I mean, why should they help you? So I would *not* recommend CC-by-nc. Nina has covered this repeatedly. She has numerous partnerships (endorsements really) that would never have come her way if she had not been willing to release the work under a CC commercial friendly license (and I too recommend a share-alike license, CC-by-sa). If 10 people sell hard copies of the work, all must link back to you, and odds are many would be willing to give you a cut since otherwise those vendors would lose legitimacy in that market. [You might be clear on your website about who were the vendors helping you out.]

      Also, note that people might want to take themes from your work and build stories, animations, marketing material, etc. Many types of derivatives would also have to link to you with CC-by-sa I think. The idea is to have significant culture be created from derivatives that all point back to you. Yes, people might then “even” want to read your biography and heavens knows what else. I see the 3D games and Halloween masks not too far away if you act now…. ;-)

    • I want to add that giving away a CC version on the website and offering a pay-for digital version and real world material items (the example sgtrock gave) is practiced by others who have had lots of success. For example, a band named 9 inch nails was the top mp3 album seller on Amazon in 2008. I verified this after some googling. Then, I also verified that they had that album on their website under a CC license. The Amazon mp3 was currently selling for $5. People will buy that if they have money and are shopping and perhaps are oblivious to the free legal version; however, many people will want to support the creators and buy something even if they know of the legal freebies.

      Update: I again found the amazon link: http://www.amazon.com/Midnight-Club-Los-Angeles/b?ie=UTF8&node=1240544011 . I was not able to find access to the full album for download under CC, but I suspect you need to first register. See this: http://ghosts.nin.com/main/faq but note that if you click on listen at the top and then download the song it claims you only get 9 tracks (so perhaps full access happens through some other means). Also, FWIW, they did use the “safest” CC license (non-commercial whole or deriv), and not what Nina recommends and uses.

    • For example, a band named 9 inch nails was the top mp3 album seller on Amazon in 2008. I verified this after some googling.

      Yeah, I remember 9 Inch Nails, used to listen to them way back when.

      I don’t have quite their name recognition, but the fact that the CC license worked for them contradicts, to some degree, my hesitation in using the license.

    • You may even want to make amends with the person that was mirroring you. S/he seems like someone who believed in your work.

      Not really. That was a weird situation. But I understand your point.

  12. >> That greatly diminishes the value of my ad space.

    The use case you described I think is satisfied by a license CC may have retired. http://creativecommons.org/licenses/sampling+/1.0/

    The flaws they found in that license (and low demand) appears to be exactly what you are looking for. See https://creativecommons.org/retiredlicenses . Note that I am not sure that the sampling license mentioned there is the same as the sampling plus 1.0 linked in the prior paragraph, but I think it fits the description.

    Anyway, it appeared to me that you wanted no one to post a close copy of your work so that a potential viewer would have to come to your site. At the same time, you don’t care if others modify your work sufficiently so that it doesn’t really look like what you created. Is this correct and does the Sampling Plus 1.0 achieve it?

    • Actually… yes. Thanks Jose. That’s very close to what I’d like.

      The only portion I’d question is the following: “distribute copies of this whole work for noncommercial purposes (e.g., file-sharing or noncommercial webcasting).”

      Does this allow someone to duplicate a blog? A blog, after all, could be considered (or argued to be) “a whole work”.

    • If I were one to get embarrassed easily, I might be embarrassed a bit now.

      I stopped reading after the first bullet point and did not really pay attention to the second one.

      I think what you want is the first grant only.

      So using deduction I derived this link.. which is I think the one that CC.org had put out to pasture: http://creativecommons.org/licenses/sampling/1.0/

      So you want the **sampling license** not the sampling+ license.

  13. Hello,
    first of all, I like this article very much and I agree with it. I’m a software developer myself, in Germany, and I look with horror to the USA because of software patents.

    But can please you explain one thing? You stated If Turow, Aiken, and Shapiro have an argument, it’s that artists like myself ought to be entitled to something. I agree.

    Why are you thinking that you are entitled to “something”?

    Are you thinking that because you put up a blog and post poems that you are entitled to something? Did I hired you to post poems on a blog, or anybody else hired you to do it? As far as I can tell, you post poems because because you want to and you invited me and everybody else to read them. But now you are thinking that you are entitled to “something”?

    If I build a house and invite some guests to stay in the house, am I entitled to something? No, because nobody asked me to build a house and I have invited my guests.

    This pattern of thinking puzzles me. I’m from Germany and right now there is a debate about compensation of artists and authors. Why do artists and authors thinking that only because they have created something and other like their work, they are entitled to some kind of compensation?

    —-

    As for your example about the copied blog, I think your example is very unlikely. First of all, in the copied blog will be your name and a link to your blog (because the CC contains attribution) and second, the person will not make any money what so ever from his blog (because of the non-commercial clause). If someone will actually put his/her effort, time and money to create a copied blog it will only benefit you. More exposure to you, your works and your blog, and all for free, what else you want?

    Maybe the copied work will be hosted in Iran/Iraq/North Korea, in a country which don’t have access to all US sites. It will contain your name and even more people will read your poems. What about translations? Are you oppose translations as well, because they are a 1:1 copy of your work? How about my computer, I just printed your article to read it and maybe I will show the printout to other people, are you opposing that as well? Sorry, I don’t see the logic in this statement, too.

    • But can please you explain one thing? You stated If Turow, Aiken, and Shapiro have an argument, it’s that artists like myself ought to be entitled to something. I agree.

      Because if the Elizabethan playhouses hadn’t had some source of income, they couldn’t have paid for costumes, they couldn’t have paid their playwrights, they couldn’t have built their playhouses, etc… There would have been no Elizabethan theater. Period. Do you think there would be any music from Mozart, or Telemann or Bach? Beethoven’s revolution was to buck the European patronage system. He was only able to do this because he made money from his work.

      Why are you thinking that you are entitled to “something”?

      How am I supposed to survive if I can’t expect income from my labor? Who could afford to be an artist if there were no reward for their work? How do you propose an artist should live? On what?

      The only debate is how to accomplish that aim, not it’s validity.

      Are you thinking that because you put up a blog and post poems that you are entitled to something?

      No. That wasn’t my point. My point is that if I can’t, at some point, expect income from my writing, then I won’t be able to write or my opportunity to write will be greatly diminished. Turow, Aiken, and Shapiro are right about paywalls to the extent that Elizabethan Theater wouldn’t have existed without that piece of the puzzle.

      Why do artists and authors thinking that only because they have created something and other like their work, they are entitled to some kind of compensation?

      Let me turn the question around: Why do you think they should be entitled to nothing? My opinion is that they’re only entitled to what they earn. I’m not advocating a handout.

      As for your example about the copied blog, I think your example is very unlikely.

      What? No. It actually happened.

      Are you oppose translations as well, because they are a 1:1 copy of your work? How about my computer, I just printed your article to read it and maybe I will show the printout to other people, are you opposing that as well? Sorry, I don’t see the logic in this statement, too.

      It appears that you haven’t thoroughly read the comments.

      I’ve already stated that I’m wiling to reconsider my opinion on the issue of “wholesale copying”.

    • An artist should make his living like the rest of us, by creating works of value (to somebody). The Elizabethan playhouses worked, because the plays had value to the people, and the artists made something that other people couldn’t do.

      But with the VHS, tape, CDs, DVDs and the internet the technology changed. The reproduction and distribution costs are dropping to zero, and I can get a lot of entertainment for free, thanks to Radio, TV and Youtube. Your work’s value also dropping to zero, so how can you make a living?

      You can’t make a living anymore just to make art or post poets, because the soon you create a “paywall” the sooner I go somewhere else. You are not unique anymore, even if you were a Shakespeare. In addition, in the time of the internet with WordPress, Youtube, etc. the cost for you to publicize something are zero (or very low) so why are you expecting me to pay you something? It will just don’t work.

      You need to offer me something of value to me, for example a hardcover, or a CD, or DVD. Or you could make concerts, or live readings.

      But that would involve for you to actually work for your living. But instead I hear the whining all the time (excuse me, but I really have that impression) from the authors and artists that the government should protect their “intellectual property” more, so they can just open a blog and collect money.

      Even in this very good article you are stating that your are “entitled to something”. If you want to be entitled to something then I suggest that you start working. Make and sell posters, hard cover books, make live readings.

      Don’t expect to be paid just for making some poems. Take the example of the Elizabethan playhouses. The artists weren’t just writing some plays, there were performing the plays. That was the value people had paid for.

    • An artist should make his living like the rest of us, by creating works of value…

      OK. I wouldn’t disagree with that.

      But that would involve for you to actually work for your living. But instead I hear the whining all the time (excuse me, but I really have that impression) from the authors and artists that the government should protect their “intellectual property” more, so they can just open a blog and collect money.

      Not sure who you’re addressing?

      You make a lot of assumptions about me. You definitely didn’t read my post very carefully or my response, and you haven’t read anything else I’ve written, so I’m guessing you’re either a troll, or prefer ignorant righteousness to informed opinion.

      But here’s the sentence that’s got you tied up in knots:

      “If Turow, Aiken, and Shapiro have an argument, it’s that artists like myself ought to be entitled to something.”

      I have to wonder if you’ve even read the New York Times article? Their argument is that if an artist can’t earn income from their art, then they can’t be artists. Still with me? But you seem to be hung up on the word entitled. I’m guessing the word offends because you associate the word with getting something for nothing. But that’s a politicized interpretation. Entitled also has the meaning: qualified for by right according to law.

      A copyright is a form of entitlement. It entitles an artist to remuneration for his or her work (as opposed to someone else). It means that, unless I give another person the permission, they cannot earn money from my work. Got it? So, what my sentence is really saying is that I, and any artist, am entitled to and granted rights to my work according to law. Are you with me still? I’m saying that I’m entitled to legal protection. I’m not saying I’m entitled to income. If my work is worthwhile, then I’ll earn income from it, but how I obtain that income is a separate issue.

      Review: I believe artists are entitled to the legal protection afforded by current copyright law. If they want to opt out, it should be their option. The Elizabethans were not entitled to those legal protections. The argument which the NY Times article makes, in part, is that the playhouse paywall acted as a defacto copyright.

    • I’m not a troll, I just don’t see your point of view. Maybe a misunderstanding, if you have had written that you are entitled to something by law, or to some protection by law.

      Of course everyone is entitled to rights under the current law. That is the nature of any law. So if it’s your point is that you are entitled because it’s the current law of the land, of course you are correct.

      That doesn’t change my view that the current law is broken and needs to be remake.

      But if you like you could further explain to me why you think you are entitled to copyright for your works? At first you were not entitled at all, until you actually register a work. Then later the laws were changed so everything falls automatically under copyright.

      I for myself still waiting for the prove that we actually need a copyright law. If you have one, please let me know.

    • But if you like you could further explain to me why you think you are entitled to copyright for your works?

      It’s the difference between “opting in” and “opting out”. The current copyright law “opts you in”. Current law assumes that anything I write is my intellectual property. That wasn’t the case during the Elizabethan era. The day the ink dried on a play by Shakespeare, it was assumed to be the public’s intellectual property. Playhouse’s therefore fiercely protected their manuscripts. In some cases, if a play made it onto the black market, it was because they were a memorial reconstruction. Incidentally (for those interested in anecdotes about music and history) this was how Allegri’s Miserere finally made it out of the Vatican walls. Mozart, as a teenager, was taken to a performance of the Miserere. It had been forbidden to remove Allegri’s text from the Vatican – on pain of excommunication. Mozart heard the performance, once, and wrote down the entire composition from memory.

      At first you were not entitled at all, until you actually register a work.

      [Edit:] Right. That’s the equivalent of being “opted out”.

      Then later the laws were changed so everything falls automatically under copyright.

      Right, and that’s the way it should be. The presumption should be that writers don’t want to surrender the rights to their works. That choice should be theirs. Intellectual theft is a fact of life. Before copyright laws were enforced, writers and composers lost considerable income to intellectual theft.

      I for myself still waiting for the prove that we actually need a copyright law. If you have one, please let me know.

      Proof? All you need to do is brush up on history. Look here, for example. Do you keep the door to your apartment locked? Do you lock the doors of your car? Whether or not you do, there’s no difference between a copyright and a lock on your apartment door. They both protect your property. I would like artists to be more willing to share their work for creative purposes, but I also think it should be their choice and right to do so. Copyright laws give them that right. The presumption should be that what is in your apartment is yours.

    • Right, and that’s the way it should be. The presumption should be that writers don’t want to surrender the rights to their works. That choice should be theirs. Intellectual theft is a fact of life. Before copyright laws were enforced, writers and composers lost considerable income to intellectual theft.

      This is just not true. In fact, most of the writers, artists, composers don’t make a dime out of copyright. The only ones that make horrendous profit are the one that have the money to buy others rights and monopolize them (i.e. the RIAA, MPAA, etc.).

      You want proove? Look at your history books:
      http://www.heise.de/tp/r4/artikel/33/33092/1.html
      It’s in German, but it gives a picture of the two countries (England and Germany) which the first had copyright and the latter doesn’t at the same time. After the introduction of the first copyright law in 1710 this was happening in England: the prices for books skyrocket, in fact books were so expensive that it was a luxury product. At the same time the royalties that the authors had was very little (5 to 10 Pounds), the published books was very little (1800 was 700 new books published). There were only a few authors that could make a living out of writing books. But in Germany were 4000 books published at the same time. Btw, this time (no copyright in Germany) is still known as the time where Germany became the “nation of poets and thinkers”. This time period created the most brilliant poets and composers Germany may ever knew.

      Even the Elizabethan playhouses proves you wrong. Even if the artists didn’t had the copyright protections, they not only could make a living but to make such great works that we still speak about them centuries after. In fact, because copyright is quite new law (only 300 years old), almost every great poet, artists, composer didn’t had any copyright protection. But they manage to create great works so we speak about them centuries after.

      Copyright is only good if you are a well established and known author (or artists). But if nobody knows you the copyright as we have it makes it for you very difficult if not impossible to create new works and to publish your own books.

      If you still not believe me that there is absolutely no prove that copyright have a net gain for creativity, let me show you the fashion industry. This industry have absolutely no protection of “intellectual property”. No copyright, no patents (you only have trademarks). In the fashion industry everybody “steals” and copy from each other, making new works. But the fashion industry is one of the most creative industry.
      A Look At How The Fashion Industry Thrives Without Copyright:
      http://www.techdirt.com/articles/20100526/0039459578.shtml

      Your site is also interesting.
      http://www.victorianweb.org/authors/dickens/pva/pva75.html
      because American publishing was undercapitalized and needed to be able to plunder British and continental works in order to survive.So you don’t force copyright on everyone to foster creativity in your country. In fact, you just ignore copyright to foster creativity.

    • OK, first, let’s clear up what you’re responding to. You wrote:

      I for myself still waiting for the prove that we actually need a copyright law. If you have one, please let me know.

      I provided that proof by giving you an example of an author who was harmed by piracy and who, himself, gave examples of other authors harmed by piracy. You may not like such evidence, but it establishes the historical reasons for copyright law.

      This is just not true. In fact, most of the writers, artists, composers don’t make a dime out of copyright

      Such a generalization is meaningless. The point of copyright isn’t, in and of itself, to make money, but to establish to whom intellectual property belongs. Right? You need to separate the issue of “dimes and nickles” from the question of intellectual property. They are not one and the same.

      It’s in German…

      That’s OK, I can read German.

      After the introduction of the first copyright law in 1710 this was happening in England: the prices for books skyrocket, in fact books were so expensive that it was a luxury product.

      OK, but the lessons that applied then don’t necessarily apply now. In the 19th century, any given author usually didn’t have access to a printing press or a means to circulate their own work. (There were exceptions.) This meant that if he wanted to see his work published, he was required to surrender his intellectual property to a printer or publisher. This gave the printer or publisher, as you rightly point out, a monopoly on the author’s work and in many cases the interests of the author did not reflect those of the printer and publisher. This is evidenced by the differing markets between Germany and England. That situation has changed completely with the advent of the Internet. Authors, like myself, are no longer dependent on printers or publishers to disseminate our works. This has changed the balance of power and means that an author does not have to surrender his or her intellectual property in order to be read. The copyright, in this instance, merely establishes to whom intellectual property belongs. It does not, in and of itself, create the same kind of monopolies as existed prior to the Internet.

      Secondly, I would be wary of drawing too close an analogy between the copyrighting of literature and patenting of software.

      A book is not dependent, for it’s survival and improvement, on continuous editing and rewriting. A piece of software is. This fundamental difference can’t be overstated.

      Even the Elizabethan playhouses proves you wrong. Even if the artists didn’t had the copyright protections, they not only could make a living but to make such great works that we still speak about them centuries after.

      OK. You don’t seem to understand the thrust of the NY Times article. The point they made is that the playhouse paywall acted as a de facto copyright. I have written this numerous time, but this argument seems to escape you. The paywall and the physical confines of the playhouse acted as a copyright to the extent that it protected their intellectual property both literally and figuratively. So long as a playwright’s work wasn’t pirated, they could be the sole purveyors of a given work. This is precisely what copyrights are intended for.

      Copyright is only good if you are a well established and known author (or artists).

      This is only true if you think of copyright only in terms of monetary return. That’s not the purpose of copyright. A copyright only established to whom intellectual/literary property belongs. That’s what a copyright is “good for”. Having that right established then gives you the option to use a CC license if you wish. A copyright gives you that option – and only you. That’s the way it should be. We shouldn’t be dictating to artists how to treat their intellectual property. That is their choice. Software patents are a different matter and I think you would be wise to not too closely conflate the two.

      …you don’t force copyright on everyone to foster creativity in your country. In fact, you just ignore copyright to foster creativity.

      [With the advent of the Internet] the copyright is no longer “forced” on authors or artists. They can surrender or alter the terms of their intellectual property any time they wish. My argument is that it is to their advantage to do so. Like you, I believe that copyrights can greatly diminish creativity. However, unlike you, I believe the choice should remain the artist’s.

    • >> Why do artists and authors thinking that only because they have created something and other like their work, they are entitled to some kind of compensation?

      Though I’m not too interested in pursuing this too far now, allow me to get a little philosophical by posing a few questions back.

      What entitles anyone with bills in their wallet/purse to have those bills honored by the rest of us?

      We could ask, why should we elect people that will support a government that will not enable an environment where everyone could make a living and then when they don’t and are hungry throw them in jail for taking tomatoes from a farm or store?

      If person A is going to “criticize” person B, who creates something but might be weak in business/trading skills and is taking for granted current copyright laws as a potential piece of leverage (that has anti-social characteristics), I think it is fair to ask in return why A would accept help from a bunch of people in some sort of uniform/robe who perhaps are going to use as much force as necessary on some other person C who might not accept that some property rightfully belongs to A and should be respected. The value system of C might state that no one can own any property or at least not land and that it should only be one’s ability to win a wrestling match that will determine who eats first from the garden v. who will have to yield and work the garden so that there is food for those who are stronger.

      So we all have different value systems and thoughts over how something should be done, but the common thread is that we all want/need to survive. Each person might give extra value to an approach they think they can live with, but that doesn’t make that approach naturally correct and others bad. Or at least the question is not that simple to answer because then we’d have to evaluate why your set of assumptions might or might not be more “reasonable” than my set of assumptions.

  14. Pingback: Links 2/3/2011: Early Look at GNOME 3.0, Mandriva 2011 Alpha 2 Screenshots | Techrights

  15. I followed a couple of Nina Paley links and found her blog on Techdirt. Back on September 10 of last year, she posted a 9 minute clip of an hour talk that focuses on both her view of the CC license that she chose, plus the economics behind how she makes a living from “Sita Sings the Blues.”

    Interesting feed. :-)

    • Great! Thanks SG. I’m going to go check it out.

      I’ll have to think hard about how to make this experiment work. But what have I got to lose? Another story has impressed the hell out of me – Amanda Hocking. I’ve written several blog posts supporting the idea that writers really don’t need publishers anymore, and that poets might consider actively avoiding them. All but the most “established and approved” poets have little to gain.

    • More on Paley. Turns out she doesn’t like the CC license because it prevents was perceived to prevent commercial reuse of her material.

      The GNU GPL license does largely the same thing, except that it doesn’t prevent commercial redistribution.

      When we speak of free software, we are referring to freedom, not price. Our General Public Licenses are designed to make sure that you have the freedom to distribute copies of free software (and charge for them if you wish), that you receive source code or can get it if you want it, that you can change the software or use pieces of it in new free programs, and that you know you can do these things. ~ from here.

      The CC license apparently made broadcasters (who sell add time based on their content) shy away from CC licensed music, video or programming for fear that they would be violating the terms of the CC license. Paley prefers a Share-Alike license. There’s some information here that might get me what I want. The whole matter of copyright law in the realm of the arts is an education.

    • Well, that’s not quite accurate. You have actually reached the same wrong conclusion that Nina faces every day. Nina talks about this issue in an October 21, 2010 post on her Techdirt blog:

      About a year and a half ago I released my film Sita Sings the Blues under a Creative Commons Attribution-ShareAlike license. That license allows truly free distribution, including commercial use, as long as the free license remains in place. But my experience is that most people see the words “Creative Commons” and simply assume the license is Non-Commercial — because the majority of Creative Commons licenses they’ve seen elsewhere have been Non-Commercial.

      This is a real problem. Some artists have re-released Sita remixes under Creative Commons Non-Commercial licenses. Many bloggers and journalists assume the non-commercial restrictions, even when the license is correctly named:

      The film was made available under a Creative Commons Attribution-Share Alike License, allowing third parties to share the creative content for non-commercial purposes freely as long as the author of the content is attributed as the creator of the work. –Frontline, India’s National Magazine

      Initially I tried to explain what “ShareAlike” means, and asked “Sita” remixers to please switch to ShareAlike, per the terms of the ShareAlike license under which I released it. I felt like an ass; I don’t want to be a licensing cop. After a while, mis-identifications of the project’s license became so widespread I gave up trying to correct them. “Creative Commons” means “Non-Commercial” to most people. Fighting it is a sisyphean task.

      So I’m stuck with a branding problem. As long as I use any Creative Commons license, most people will think it prohibits commercial use. Hardly anyone seems to register, let alone understand, CC-SA. Worse, those who do notice the ShareAlike marker combine it with Non-Commercial restrictions on their re-releases, which compounds the confusion (CC-NC-SA is the worst license I can imagine).

    • Thanks. My first sentence was poorly worded. I’m going to change that. It’s not that the CC license, in and of itself, necessarily prevents commercial reuse, but that, as Nina says, it was perceived that way.

    • >> in and of itself

      More accurately, it’s that there are various licenses and some place no restrictions on commercialization while others forbid it.

      Nina uses a license that places no restrictions on commercialization but most people don’t realize that. I think these people expect the default of a CC labeled license to be non-commercial, and CC-by-sa does not have a component to say “commercialization is allowed”; however, the default is “commercialization is allowed”, so CC-by-sa means commercialization is allowed since it doesn’t specifically cancel it with “nc”.

    • I still can’t fathom how I could earn income with a CC license, but I’ll be open-minded about it.

      If I could find a parallel to my own circumstances that would be cool. Otherwise, I suppose, I’ll be the trailblazer – flames or glory…

  16. Wow. Baen continues to aggressively push more fiction out free. From a December press release:

    December 15, 2010

    BAEN BOOKS LAUNCHES WEBSITE WITH A WEALTH OF FREE OFFERINGS!

    Baen Books, a leading publisher of science fiction and fantasy, is relaunching its popular website with loads of new features. Each month new fiction and nonfiction will be available free of charge on the redesigned webpage, at http://www.baen.com.

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  17. I still can’t fathom how I could earn income with a CC license, but I’ll be open-minded about it.

    If I could find a parallel to my own circumstances that would be cool. Otherwise, I suppose, I’ll be the trailblazer – flames or glory…

    Well, set aside the question of license for a moment and let’s brainstorm a bit. Once you have a list, you can start thinking about how to best optimise the chance of success for each.

    What are the possible sources of income?

    * Through publication for sale, obviously. I’m lumping in both electronic and dead tree publication for the time being.
    * Possibly through reading your own material, although that avenue pretty much dried up a long time ago.
    * ? ?

    • Yeah, I know… that’s about as far as I’ve ever gotten. Obviously, I’m going to have think creatively about this.

      My first thought is to put out some E-Books, one with poetry, one with articles on poetry (which are the most popular on this website – around 800 hits a day), and another with children’s stories.

    • Another idea.. see if you can hook up with someone willing to sell some software (an indi house) and see if you can work poetry into the storyline/game. For your time and effort, they might give you a bit of the proceeds.

      I’ve seen releases by those groups recently that pull in a bunch of money over a short time. I think that fact these were closed source, in some cases with the promise to open them up (and that they were interesting little games), that particularly drew attention. So these might very well be a model where you open up the work after as a deal with your fans after a period of time (usually not too long of a period). Once you open up, you can still fall back to merchandising, donations, offering expertise and custom jobs, etc.

      Consider also moving beyond just poetry. It’s not uncommon to make sacrifices and seek out other related (and unrelated) skills. Usually, it’s this depth that will ultimately lead to a very interesting and unexpected result/appeal within your main area.

      Also, Amanda Hocking had written a bunch of novels by the time she took the first plunge. In other words, she had several “works” that could be packaged and sold for sale. No matter the license, if it has a potential audience, people will buy it for $1 for these little gadgets. [We covered 9 in nails]

      You may want to consider a little bit of “prostitution”, meaning you address people’s specific custom needs, even though that narrows your audience significantly. Of course, having something open content doesn’t hurt this biz since its the customizations people want and the open content draws attention to it as a base. You will eventually compete with others who also can modify that work. Although remember that this is just one more means of many and that you too can become an “expert” in the open content material others have contributed. They gain from you, and you gain from them (use CC-by-sa for this to work smoothly).

      Dan Bull got a bunch of people to donate money after he released a funny/clever song (with little video) addressed at copyright and similar IP madness in the UK. He had many works lined up by that time that had received little attention and few fans, but once he hit upon a social nerve, with the help of youtube, he pulled in a bunch of fans within a short time, who now make periodic donations. He simply cranks newthings out on an ongoing basis and gets little bits of money periodically. But the break-out work is what drew many people to take him seriously, and he received I think something like 50K(??) over a very short time span. (see the techdirt dot com case study).

    • A person’s time is very valuable. If they are going to invest many hours into something they enjoy, and they have money, they probably don’t mind paying. In this case, you should note 2 things:

      – Seek out a scarce item. Rather than to use copyright to force scarcity. Add something like a personal note, a limited edition serial number on some sort of packaging or electronic receipt (which you can sign with your private key).

      – Some people have the money to spend and others do not. Do not worry about the many that don’t pay. If they never pay, that doesn’t remove from the many that might if you address their needs. Further, building up a fan from someone that doesn’t pay will save you lots of money and costly endorsements that you will get for free and lead you to more who do pay. You only need to capture a fraction. Also, you might be a fan for 10 years and then finally make a nice contribution when things are looking up for you and in a moment of emotion.

      – You should prepare and plan and then be patient. You are not going after a major contract (well, you can but that is a separate model). Rather you are going after a strong relationship base and to increase the numbers over time as much as possible. The goodwill “royalties” come in time.

      Don’t be afraid to experiment with many different things across numerous works. Definitely, please don’t ignore CC and other open content/open source licenses.

      Also, as a day job while you way, consider developing unrelated skills (software installation or training). There are a bunch of other peoples contributions to the public (open source software/content) to give you lots of material right off the bat. Over time you will find ways to instill poetry or anything else into your work to add special value.

      Have you considered learning to use blender (the 3d modeling and gaming app)? Blender releases short animations periodically. You can modify that source code to add in your own plot twists or scenes.

      Seek positive relationships and to reach a wide audience whenever you are tempted to think of monopolizing. Your time and endorsement are among the crucial natural monopolies you will always have, but try not to hold back other people when you could otherwise set things free. [Again, my mindset comes from the fact I really value that there exists so much open source software and related communities that I feel I could never pay back for all of that.]

    • >> My first thought is to put out some E-Books, one with poetry, one with articles on poetry (which are the most popular on this website – around 800 hits a day), and another with children’s stories.

      I’m a little sloppy. I thought I had replied under the other thread that ended “If I could find a parallel to my own circumstances that would be cool. Otherwise, I suppose, I’ll be the trailblazer – flames or glory…”

      OK, I like the idea for the two(?) books. Consider also accepting contributions, maybe for version 2 of the book “the extension series”.

      The readers can also be invited to publish copies of the books themselves however they want (but using CC-by-sa and/or some other similar license (Artistic…)). Then work in that you have a donation button or instead make sure you offer a decent hard copy people can buy (perhaps giving a unique signature to each). Offer an endorsement deal to all who want to republish for income. [Keep in mind that your endorsement is for the overall work and your personal contributions but not for the specific sections contributed (and copyright owned) by others.]

      You can start off small. Remember, a few pennies here and there among 800 readers becomes a few thousand pennies here or there among 800,000 readers. Not to mention that by then you will have many other offerings and business setups in place.

      Good luck.
      PS: When you develop a mailing list, add me to it so I can keep up.

    • You can start off small. Remember, a few pennies here and there among 800 readers becomes a few thousand pennies here or there among 800,000 readers.

      Thanks Jose, first I’ve got to get some material into E-Book format. First things first. I bought Jutoh a while back but am also looking at Calibre. Just noticed on OMG Ubuntu that Scrivener was ported to Windows & Linux. All this good stuff just in time.

    • Speaking of which, are you familiar with LyX? Their goal is to create a GUI interface that will produce What You See Is What You Mean (NOT WYSIWYG). I’ve used it for a couple of personal projects and I’ve been very pleased with the quality of the final presentation. It’s another FOSS project that’s been around quite a while, btw, and it’s cross platform. MS Windows, OS/X, and Linux versions available.

    • Actually, yes, I took a good hard look at LyX not too long ago. Not sure how helpful it would be in terms of E-Books, but it might be very useful for hard copies. Might be ideal for some of my posts heavily dependent on jpg’s and formatting. It looks promising.

  18. Did you people see the latest techdirt story Minecraft?

    Months ago they did two stories and during that time the author of the software had been asking for donations I think. In any case, he was making over 100K per day.

    The latest update has the author stating that piracy is not theft. That pirates come around in time to buy if you keep adding things they like and treating them well. And if I read correctly, he is still making 100K+ per day.

    techdirt also has another recent feature about how the approach is not to sell music as a product but to treat it as a service. Ie, it’s not to create something and think that is it (enforce copyright), but to consider it an ongoing process for the artist of reaching out to fans now and into the future.

  19. Senator Franken is supportive of those pushing for strong copyright enforcement and to expand the law (eg, curtail fair use); however, he is a reasonable person that recognizes some of the concerns constituents have.

    I wrote him a letter yesterday asking if COICA would end piracy. Though I left that particular question vague, the idea I sought to convey was that many artists have been blessed with the Internet and with cheap file-sharing (which I just called “piracy”). I think the dinosaurs of the industry who are fighting for copyright recognize the value of piracy to artists so want to demonize it in the eyes of everyone and end it. Ditto for p2p file sharing efficiencies.

    If you write to Leahy and/or Franken, consider mentioning some of this. Eg, how “piracy” is a part of many new business models and adding costs and risks around that is doing a disservice to many artists who have found ways to avoid the major publishers/labels to reach out directly to fans. Another point I mentioned is that sharing information being so natural many people will engage in it as a good or acceptable thing (especially since there is a mixed message because many people don’t enforce copyright on what they create and in fact copying is not theft). Adding high penalties and criminalization for file sharing is wrong.

    FWIW, I don’t know Sanders’ position, but I like what he had to say in the December filibuster attempt. At least he is reasonable. And Senator Wyden is a Senator that appears to be among the most supportive of all of these concerns of government over-reaching (eg, Patriot Act, hasty domain seizures, coica, acta, etc). I need to remember to donate to the campaigns of some of these people because when someone comes out in defense of the little person those with money tend to laser in on them to get them out of office.

    • If you write to Leahy and/or Franken, consider mentioning some of this. Eg, how “piracy” is a part of many new business models and adding costs and risks around that is doing a disservice to many artists who have found ways to avoid the major publishers/labels to reach out directly to fans.

      As far as literature, art and music goes, I’m not sure that changing copyright law is the right approach. Copyrights simply establish an artist’s rights to his or her work. Our job, which is what you’re doing with me on this website, is to persuade artists that it’s in their interest to modify the terms of their intellectual property.

      Copyrights don’t sue people, people sue people. :-)

      The problem is with the monopoly that copyrights have [historically] granted to third parties when artist and writers had few options for the dissemination of their work. I’m not sure what’s to be done about that. Individuals and corporations did, legitimately, buy intellectual property. We can’t just nullify those contracts and take it away from them (as much good as it might do the world). I think Nina Paley’s approach is the best. Going forward, artists and writers need to learn that they no longer have to surrender their intellectual property to a third party.

    • There are a few things to keep in mind.

      The duration is ridiculously long, even lasting way beyond death. How can one justify it lasting longer than death? We can help our kids while we are alive. In any case, any privilege claiming to be a natural right would have to die with the person.

      The copyright extensions have removed rights the public had, so in terms of what corporations bought (and what motivated the artists of the time), they bought a much shorter time period for many works of this past century and then got a free gift at the public’s expense. [A different SCOTUS, in Eldred, might have ruled that such would have been unconstitutional.] In any case, nothing stops us from making copyrights inalienable exclusively to human beings from here on out.

      “Derivative works” is still one way where largely original creations can be stopped (violating free expression rights). If anything, the rights should be proportionately lower the further removed is the derivative work. Related to this is culture. Anyone should be able to take existing characters and modest portions of well-known themes (music, plot, whatever) and use them at will in new works, but many such acts appear to have been stopped (maybe the cost of lawsuits led to settlement).

      We can argue that fair use should be a little or even a lot broader.

      Fundamentally, if any form of copyright law is shown to the satisfaction of SCOTUS or Congress not to “promote the progress”, then it will be made moot or be reduced as necessary. We can always argue that the rules where right there in black and white and while some assumed copyright was over-reaching and was in violation of the Constitution all along, others took chances and bought and sold those rights at their risk.

      How can we criminalize file-sharing? There is no theft. It is virtuous to share information as a general rule. Generally, sharing promotes the progress. Sharing to study/teach might be fair use under almost all (quasi) non-commercial conditions (see 17 USC 107). So, arguably, all sharing of digital content should be allowed under free speech rights.

      And the monetary penalties for infringement are out of whack (maybe making sense to apply against a large publishing corporation but not against individuals).

    • The duration is ridiculously long, even lasting way beyond death. How can one justify it lasting longer than death?

      What if the author writes a great book at 23, only to be killed at 25 when, in a freak accident, a box of Microsoft Office falls on his head. Should his wife and, let’s say, children lose their husband’s and father’s intellectual property? The children certainly aren’t savvy and the wife may not be. What’s to protect them as, in theory, any number of third parties waltz off with their earnings? The issues are complex.

      The copyright extensions have removed rights the public had, so in terms of what corporations bought (and what motivated the artists of the time), they bought a much shorter time period for many works of this past century and then got a free gift at the public’s expense.

      I agree, extending copyrights is an ugly business.

      However, there’s a flip side to this argument. Take Disney for example. Their copyrights on Mickey Mouse and all the rest should have expired a long, long time ago. On the other hand, Disney has spent a ga’zillion (that’s a zillion with a ‘ga’) dollars promoting, developing and sustaining the branding of these characters. Do we just tell them: tough, too bad, time’s up? I can see their argument. However, I can also see why Annette Hanshaw’s songs should be public domain. Maybe the cost of extending a copyright should be very, very high. If a company like Disney has spent a gazillion dollars sustaining cartoon characters, then spending another gazillion extending their copyrights should simply be part of the equation.

      On the other hand, Warner would never spend a gazillion dollars holding onto the copyrights for the songs of Annette Hanshaw.

      The best solution that I can think of would be to differentiate between the intellectual property rights of the creator and the third party. Third party’s should not be able to monopolize cultural material that they did not create. If you think of intellectual property as a commodity, such a policy might threaten to diminish the monetary value of that commodity but I think, at this point, an argument could be made for a higher value [other than monetary].

      Anyone should be able to take existing characters and modest portions of well-known themes (music, plot, whatever) and use them at will in new works, but many such acts appear to have been stopped (maybe the cost of lawsuits led to settlement). We can argue that fair use should be a little or even a lot broader.

      Agree completely. Not that I ever liked Vanillia Ice, but Bowie and Queen’s lawsuit was complete B.S.. [Correction: The case never went to court, rather, the threat of a lawsuit lead to a settlement.] In truth, it’s not just multinational corporations running around suing the small guys, but everybody on down the line. Redefining Fair Use might be the best way to go.

      Fundamentally, if any form of copyright law is shown to the satisfaction of SCOTUS or Congress not to “promote the progress”, then it will be made moot or be reduced as necessary.

      Right, but how does one define “progress”. I would define it in an artistic sense, but a bean counter is going to define it from a monetary perspective.

      We can always argue that the rules where right there in black and white and while some assumed copyright was over-reaching and was in violation of the Constitution all along, others took chances and bought and sold those rights at their risk.

      I did some reading up on copyright and the Constitution. I see the arguments on both sides but, on issues like this, the principle of stare decicis has a legitimate role to play.

      I see two sides to the argument, the best being here in my opinion.

      The other side of the argument is here. As I read more and more from this latter article, the more I kept expecting sloganeering: Worker’s Parties UNITE! (and that sort of thing). The authors would no doubt call me a capitalist apologist, but I’ve seen what happens in societies where there is no such thing as personal property. It’s not pretty. No. It’s not pretty at all.

      Like I said in my original post, there needs to be a balance.

      How can we criminalize file-sharing? There is no theft. It is virtuous to share information as a general rule.

      The problem is that what you are characterizing as “information”, the next guy is characterizing as a “commodity”. Visions of utopia aside, art does need some level of commoditization or any number of artists simply won’t be able to survive. That’s what bugs me about the latter article mentioned above. The authors sound ideological in their anti-CC rant. At some level, property represents rights. If you have no property, then your rights will be greatly diminished if not non-existent, the folks who deny this are living in a fantasy land. When I write my representatives, I’ll be arguing for a realistic balance – a questioning of copyright laws as they are, but not their wholesale destruction.

    • >> The issues are complex.

      Yes, and if you wanted to do something about the person who dies right after a great work is out, we can do something as simple as “10 years or life, whichever is longest”.

      Remember, let’s not assume that no copyright means you can’t make money; however, the case you mention (and I decided not to go into those details because it is complex) does remove the case of the artist being able to leverage certain things. We could improve current law perhaps (at least considering this case of early death), by granting not a monopoly but a required low royalty rate (which the spouse/estate can have lowered if they want). In this case, we deal with the primary issue, money for those left behind.

      >> On the other hand, Disney has spent a ga’zillion (that’s a zillion with a ‘ga’) dollars promoting, developing and sustaining the branding of these characters.

      Disney is sophisticated enough to know that they might be taking a risk. It doesn’t seem reasonable to say “go spend all you want, because we will subsidize it later on”.

      Disney will spend based on their calculations. Plus, they aren’t spending too much on Steamboat Willie…

      ..oh, wait, perhaps it would be smart of them to spend on that if there were no copyright. Let the public know that it was “them” who created that animation. Advertise to strengthen their brand so that people buy from them and visit their parks and not the parks of others.

      Does McDonald’s have a monopoly on burger expression? No, but that is probably the more reason for them to spend on advertizing.. and it’s bringing them money.

      >> Right, but how does one define “progress”. I would define it in an artistic sense, but a bean counter is going to define it from a monetary perspective.

      I agree with your view, but whatever the definition, there are many logical arguments (and tests) we can make to show that everything beyond point X or Y is likely a problem.

      The question essentially is, if this law did not exist, would we have greater progress or not? The accessibility, collaborative abilities, and low costs brought by the Internet needs to be addressed. We are no longer in 1800, and the Internet is not 1800s technology.

      And the successes creators are deriving off essentially “non-commercial piracy”, for example, strengthens the argument that piracy and digital sharing should be fair use (and perhaps will be officially declared protected free speech at some point in time). 17 USC 106 already states that there are teaching and other exceptions. This is not a revolutionary idea if we accept free expression and that copyright law needs to promote the progress (not be used specifically to make anyone wealthy).

      >> but I’ve seen what happens in societies where there is no such thing as personal property.

      We can pass laws to call whatever we want “property”. Let’s not mix personal use goods and land property rights with IP rights as if there were no significant differences.

      >> If you have no property, then your rights will be greatly diminished if not non-existent
      >> I’ll be arguing for a realistic balance – a questioning of copyright laws as they are, but not their wholesale destruction.

      Not everyone is going to agree to an exact line marking of rights, but don’t forget that there is truth. Eg, your skills are “truth”. The fact you can create something and created something is truth. Most people have found they can make a living charging for their time and ongoing work.

      A monopoly allows one to sit on what can become very valuable culture and then act as a central controlling entity of all commerce, art, etc, that might want to derive itself from that (monopolists of the world unite.. and all of that).

      See I dislike monopolies. We can’t just think of those who had success in the past. We have to think about those in the future who will grow up with many more restrictions and less leverage. Everyone should have an opportunity to study and practice and product great works, and this means we shouldn’t give anyone too much power or control (wealth, etc) existing art and knowledge.

      The right for a great artist today to have all the time in the world by automatically trying to maximize their earnings should be much less than the right of many “students” to have access and flexibility in order to potentially become nearly as great, as great, or greater than that artist in the future. We need balance between those who can create good works today and those who need a fair shot to create good works tomorrow.

      There is probably a little “communism” about this and also about anything a church or volunteer or non-profit does as well. Note, however, that I am rejecting central control over something that otherwise exists naturally (the ability to observe and use what you observed in ways that create something for society). I am promoting distributed control.

      BTW, I think I will eventually be able to focus and get some software going that I want to use to showcase CC and other free-ish works. The idea is to create some addiction and fun around interesting content and make it easy to order or contribute a little bit of money. And anyone can use that system (eg, via there website). Now, don’t get me wrong. I am not talking about creating anything more than a *little* useful widget or something like that that would add a bit to the mix of things people are leveraging.

    • The question essentially is, if this law did not exist, would we have greater progress or not? The accessibility, collaborative abilities, and low costs brought by the Internet needs to be addressed. We are no longer in 1800, and the Internet is not 1800s technology.

      Right. The Internet changes everything.

      It means that writers and artists no longer need to sell their rights (intellectual property) to expose their work. I would be tempted to say that the whole problem has been the bottleneck caused by distribution (publishing industry), but artists are just as legalistic and litigious as any publisher or corporation. I wonder if that will change with the advent of the Internet?

      For instance, let’s say Bowie releases his next song (is he even writing songs these days?) as a free download. Is he going to still be as trigger happy if another Vanilla Ice cops the base line?

      I know of writers who sold rights to their stories only to have publishers sit on their work. They can’t sell it to another publisher because the first publisher now controls the intellectual property. This is something else that the Internet changes. It’s also the reason I’ve never really wanted to sell any of my writing to publishers (is that self-defeating or what?). I’ve just never wanted to sell the rights to (give up control over) my intellectual property. Any author who has signed a contract with a publisher, unless otherwise stipulated, can’t just reissue their work under a CC license. They would undoubtedly be sued.

      The Beatles are a prime example of this. It’s a crime, in a way, that their songs are no longer theirs. On the other hand, Paul & Ringo made their millions because of the same system (though not from Beatles royalties… Paul’s wealth, or so I’ve read, mainly derives from Wings, not the Beatles).

      We need balance between those who can create good works today and those who need a fair shot to create good works tomorrow.

      Exactly.

      BTW, I think I will eventually be able to focus and get some software going that I want to use to showcase CC and other free-ish works.

      If you get a system like that going, let me know and I’ll mention it here.

  20. The problem is that what you are characterizing as “information”, the next guy is characterizing as a “commodity”. Visions of utopia aside, art does need some level of commoditization or any number of artists simply won’t be able to survive. That’s what bugs me about the latter article mentioned above. The authors sound ideological in their anti-CC rant. At some level, property represents rights. If you have no property, then your rights will be greatly diminished if not non-existent, the folks who deny this are living in a fantasy land. When I write my representatives, I’ll be arguing for a realistic balance – a questioning of copyright laws as they are, but not their wholesale destruction.

    When I read this, I was forcibly reminded of “Melancholy Elephants”, a story by Spider Robinson. He is a Vietnam veteran and science fiction author who has been thinking about copyright for nearly thirty years. The story is a conversation between the widow of a songwriter and a very powerful senator.

    Personally, I think that rolling back copyright all the way back to the original terms of the U.S. Constitution would be one way to reach a reasonable balance. 14 years with an option for another 14 strikes me as a good balance between artists and the public.

    Another approach that also seems reasonable to me would be the similar to one that Lawrence Lessig backed, the Eric Eldred Act. Essentially, after 50 years a copyright owner would be required to pay a nominal registration fee of $1 for three years consecutively or see the work go to the public domain. Personally, I think 50 years is too long a term, but otherwise I’m OK with the mechanics of the proposal. This would have let Disney hang on to Mickey Mouse for a while longer while letting the other 98% of the material go to the public domain where it belongs. Unfortunately, the idea has never gained traction in Congress. :-(

    • Have you seen this site? Website Copyright

      I was just reading the case between George Harrison and the Chiffons. This is exactly the kind of crap that any copyright revision should wrestle with. This kind of thing is proof positive that the Elizabethan era (let alone classical music) would have been way different if they had been subjected to current copyright laws.

    • I had heard of the case a while back but had forgotten about it. You’re right, though. Culture has been handed down for generations with every artist putting their spin on old formulas. Even many if not all of the standard motifs in science fiction can be found in the old oral legends. Robert Heinlein used to call this filing off the old serial numbers. :-)

      Postby Alastair » Sun Jan 24, 2010 11:33 pm

      Brad R. Torgersen wrote:There is almost no plot in SF and F that hasn’t been used already.

      What makes the story stand out are the unique flavors and characters each writer brings to the plot.

      That just summed up the last panel I attended at CoSine today, with panelists Connie Willis and Cynthia Felice, among others. (I was audience, not panelist).

      The consensus was that there are only N plots, with N >= 1 (“stuff happens”) on up to any arbitrary number depending on how they’re classified. What makes stories unique is, yes, the characters, the setting, the author’s voice, and whatever spin he or she puts on that old story. The panelists all agreed that (a) yes, new writers worried a lot about coming up with unique story ideas, and (b) that it wasn’t worth worrying about, just focus on putting your own unique stamp on a plot idea. Your writing will probably be the better for it.

      G. Harry Stine used to tell the story of him bringing up that concern to Robert Heinlein, while together in — I think it was Heinlein’s — study. Heinlein looked surprised, waved his arms at the shelves full of books, and said something like “there may be only three basic plots, but there are plenty of story ideas. Just make sure you file off the serial numbers.” (The latter meaning “make it your own”.)

      Avatar may be Pocahontas in Space, but it is distinctly Cameron’s Pocahontas in Space.

    • I’ll be optimistic and assume the defendants did not want to argue sufficiently for fair use or promoting the progress or anything like that since they probably believed they had much more to lose in the long term that way.

      Besides the whole issue that mathematically there are only so many options that likely sound well to numerous people in the same culture at any given point in time (across many millions of songs being created there will be many overlaps), an important part of promoting the progress is that people will subconsciously adopt techniques that are valued by society. I mean, a monkey can write notes and someone somewhere at some point in time will find it to be genius, but that would not support artists if they were forced to resort to that. And society obviously also doesn’t value that when so few would like the “noise”.

      That is clear abuse, and I’ll assume the defendant had no interest in pursuing it too far.

    • >> “Melancholy Elephants”

      I think that is the story I had “misplaced” years ago and was not able to find. :-)

      >> This would have let Disney hang on to Mickey Mouse for a while longer

      First, you don’t need a monopoly to make money. Once a Disney ride is in action, that is a tremendous draw to Disney Land/World, and creates barriers to anyone else that wants to “copy”. Why are we feeling sad for such a large firm that obviously has milked these works by employees already for many years? (employees who are certainly not treated like rock stars from what I have heard)

      What upsets me is that anything that resembles these works can bring on a lawsuit (like the musical notes example). That is unacceptable and the exact opposite of promoting the progress.

      By being vague and potentially fairly broad (and possibly not even allowing independent creation if we judge by that example above), we have a law, by the People, yet which hurts almost all the people. This makes no sense.

      And it’s not as if people people just want to copy. There is a human desire to stand out and as well to reward that which is different and those who are believed to have created it. However, it would sure be nice if you could reuse something here or there and not feel you might be sued out of your house or be thrown in the slammer. To learn, people have to experiment and copy a lot. That is how growth works within humans. If we don’t have models, we’d be in caves. You need to be able to use culture as much as you want (more or less). Society will reward those who stand out. .. And yes, studies show this sort of thing (eg, iirc, that too much money tends to lower creative output). Notice how most creative individuals work for someone else. What we have is that these monopoly laws are supporting a super-wealth class from competition and to all of our detriment. Sure, there probably are mortals who also have gained (including those who inherited copyrights and would otherwise possibly have nothing), but at what cost to the majority? If major firms had to cut the fat or not blow money left and right, we’d still have jobs there and elsewhere (from competitors) and ordinary employees would have a much easier time themselves trying to make a living via art.

      We don’t have to get rid of everything, but some things go way too far and for too long.

      All of this said, I support open share-alike licenses and deal with the current problems that way, by trying to avoid them and promoting open licenses. However, if I get sued for software patents or for subconscious copying of copyrighted works, I hope I will not go down quietly. I will have no guilty conscience, subconsciously or consciously.

    • First, you don’t need a monopoly to make money. Once a Disney ride is in action, that is a tremendous draw to Disney Land/World, and creates barriers to anyone else that wants to “copy”.

      Disney would probably argue that the issue isn’t so much about having a monetary monopoly as artistic control. We all know that on the very day Disney loses control of its Cartoon Characters (for lack of a better term) Goofy and Snow White are going XXX. Do you remember how Hamas tried to use Mickey Mouse in a television show for kids? It’s going to get ugly, really, really fast. There are a lot of folks with a bone to pick when it comes to Disney. Whatever you think of Disney, I honestly can’t say I blame them.

      What upsets me is that anything that resembles these works can bring on a lawsuit (like the musical notes example). That is unacceptable and the exact opposite of promoting the progress.

      Right, there’s that side too.

      All of this said, I support open share-alike licenses and deal with the current problems that way, by trying to avoid them and promoting open licenses. However, if I get sued for software patents or for subconscious copying of copyrighted works, I hope I will not go down quietly.

      We’ll see. I try not to be too cynical, but we’re dealing with a sizable portion of politicians who think the Earth was created by a sky god. If any change occurs in Software Patent Law (in the US), it will be through the courts.

    • >> artistic control.

      I worried about that before, but can’t anyone do xxx with santa claus or with ancient fairy tales and many other things? So they do, but that doesn’t kill the more popular meanings. Most people like Mickey Mouse as it exists. They like the Little Mermaid that Disney came out with. Disney “perverts” many “originals”, but people like what Disney has done and they vote for Disney. That is where they $$ has gone.

      I think it boils down to money. Disney will make a little less if there are many alternatives to Mickey. They will have to work a little harder, etc, and there is a chance a more popular spin will arise and dominate (eg, Mickey with a deeper pitched voice or particularly athletic).

      A movie out soon: Red Ridding Hood. Now imagine if that movie could not exist because Little Red Riding Hood was off limits? Who loses? Should someone be able to make up a character and then not let others reuse the ideas (ie, the character features and storyline)?

      Competition: this means that Disney could keep pushing their Mickey while others pushed a different version. We don’t give monopolies for fast food. Why not force Disney and everyone else to likewise earn their continued success with these characters?

      Truth: A certain Mickey was created by Disney. Disney gets credit in people’s eyes (for that Mickey and as an innovator and quality storyteller). Disney treats fans well, then Disney gets rewarded.

    • can’t anyone do xxx with santa claus or with ancient fairy tales and many other things?

      I would have no idea. I’m sure none of us [cough] would.

      Most people like Mickey Mouse as it exists.

      You’re making me play devil’s advocate. I’m sure Disney’s argument would be that their characters are directed at kids. It’s all well and fine where adults are concerned. But kids don’t know the history behind Disney. They’re indiscriminate about cartoon characters. If the first images they see of Mickey Mouse or Goofy or Donald Duck are of them unloading a grenade launcher in big brother’s World of Warcraft, they’re just going to assume that’s what Disney is all about.

      I think it boils down to money.

      In this instance, I’m not so sure. I really *do* think Disney has legitimate artistic concerns. If you think about it (at this point) their characters have more in common with a logo than an artistic creation. Mickey is really more like the Windows logo.

      Red Ridding Hood. Now imagine if that movie could not exist because Little Red Riding Hood was off limits? Who loses? Should someone be able to make up a character and then not let others reuse the ideas (ie, the character features and storyline)?

      That’s a good counter-argument. That’s when balance comes into play. What are the legitimate claims of society as opposed to the legitimate claims of a private party. I think that we can safely say the system, for now, is too weighted against society.

      We don’t give monopolies for fast food.

      But we do grant monopolies for trademarks and logos.

    • Another possibility: Copyright as it exists today (ie, a bit vague on derivative works, etc) lasts say 3-7 years(?). Then after than (and hopefully for not a too long term), the copyright is very very narrow.

      Some will compete by giving people rights to mashup before copyright weakens, but in all cases anyone could do light mashups as well as normal changed derivatives after that time period. The idea is to *make sure* that established culture can be used almost without limits (at least as concerns derivative works that are more than minor changes) while still allowing the safety net early on.

      With the empowering Internet, this will encourage markets to exist where the creators can sell their 3-7 year headstart to big movie companies, who then can exploit that for that period of time. They can have “artistic control” long enough to establish their brand and themes and rake in money. But then we unleash competition.

      Note that the initial period isn’t necessarily to make copyright even stronger, but to allow for our current uncertainty. After that initial term, then almost any use of that work for personal (or other fair use) as well as commercial activity for anything that adds significant original content would be allowed. Make it easy to generally accept that we can do just about what we want after that initial period. Keep uncertainty very low, possibilities and competition high.

      [I have not figured out exactly where I stand on copyrights in terms of durations and powers. I want to draw attention to issues (for general discussion) and some of the worse problems (in my view).]

      On a related note, techdirt posted this today.. it’s about derivative works.

    • Some will compete by giving people rights to mashup before copyright weakens, but in all cases anyone could do light mashups as well as normal changed derivatives after that time period. The idea is to *make sure* that established culture can be used almost without limits (at least as concerns derivative works that are more than minor changes) while still allowing the safety net early on.

      Right. This is what I would also like to see. Artists and corporations shouldn’t be dropping lawsuits every time the next guy uses the same chord progression. The case for plagiarism should be very steep.

      After that initial term, then almost any use of that work for personal (or other fair use) as well as commercial activity for anything that adds significant original content would be allowed.

      OK, but let’s take J.K. Rowling. She’s richer than the Queen. Do you think she’s entitled to that wealth? Do you think the current series of movies would have been possible under your scenario? I mean, in a sense, you would have to argue with her (and other off-the-scale success stories) that they’re not entitled to the same control over their profits (as at present). And really, every writer and musician dreams of being the next Rowley or Beatles. I think you’re stiffest opposition isn’t going to come from corporations or industry, but individuals with big ideas and dreams. We all want the jackpot. Personally, I would be set with the first $ 2,000,000. =) But some people just can’t get enough.

      Here is JK Rowling being sued for copyright violation.

      And here is JK Rowling suing and the argument for why copyrights should be curtailed.

      And now I’m off to read your link.

      I have not figured out exactly where I stand on copyrights in terms of durations and powers.

      Neither have I.

    • >> You’re making me play devil’s advocate.

      No, *you* are making *me* play devil’s advocate ;-)

      Actually, sometimes I start worrying that maybe what I said was too strong against copyright, but then when I consider writing differently I get a little angry at myself.

      >> But we do grant monopolies for trademarks and logos.

      I wasn’t thinking along those lines, but, so that I don’t get upset at myself, I am going to have to continue to shovel traditional business interests aside a little. I won’t argue against trademarks right now, but, below, I want to point out a view against preservation of character symbol meanings [As a related aside, this new short techdirt post on lady gaga lawsuit http://www.techdirt.com/articles/20110308/03390313399/lady-gaga-claiming-ownership-gaga-threatens-baby-gaga-ice-cream.shtml is about trademark disputes.]

      >> If the first images they see of Mickey Mouse or Goofy or Donald Duck are of them unloading a grenade launcher in big brother’s World of Warcraft, they’re just going to assume that’s what Disney is all about.

      In the spirit of war,
      (a) arguably that scenario can happen despite the law;
      (b) one might wonder why a young kid is exposed to that so early in life (and if that is kosher with the parents, they probably don’t care about Disney’s bottom line that much either and may prefer diversity in their symbolism, meaning, in this case, their vote is likely against monopoly of images and they aren’t going to give too many dollars to Disney unless Disney is the only option);
      (c) in a world where people can take all of these images to produce different things, I think what happens is that people learn to see beyond the images to the character of the moment. I think this is healthy, and it won’t end people seeking out good stories. Overall though, society will reward popular images no matter copyright issues. However, the freedom to have variety is important to humans and to society.

      (c) is the main point, but first I have to go on a tangent and say that I value a social structure where everyone has a safety net. I won’t go into details (because I don’t know the answers), but arguing separately for economic safety net is important because it allows me to say two things at once, “monopolies are frequently undesirable” and “a widowed spouse who might lack financial support should not be placed in that threat”. These are separate issues, and, in each case, I think a civil society should offer up a solution.

      The second quote alludes to the example of copyright ending at the end of the life of someone who died at 23, leaving family behind. One thing we must ask: how many people will come up with something brilliant 2 years before they die at a young age leaving a family behind? Is this common? No, 999 out of 1000 times won’t produce anything brilliant that would save the family. In those cases, will we allow that family to go homeless (for example)? Why should the family where the dead spouse had that fortune/skill be saved and everyone else suffer? So I think a solution is required and hopefully can exist but it has nothing to do with copyright.

      Back to anti-branding…

      In the short run the “attacked” brand suffers, in the long run that brand probably won’t dominate either, but the firm with a good brand will attract lots of attention despite not being dominating.

      I know that I like to see diversity. Though it may appear odd, especially to young people, to see human faces in movies play very different roles, this is healthy after you get used to it. It helps the mind separate characters and fiction from human features. Not all X images are bad or Y images are good. I really like this mixing up despite the short term mix up in the head. In the end (for actor images), everyone should say, we are all good guys, but, hey, I will play the bad role (someone has to) in order to help create a tense moment for audiences.

      As said before, human beings may prefer some images over others at different times and will vote as suits them best if they have the options. A monopoly denies this ability.

      People are all valuable, and this monopoly thing gets back to greed. Some people want their brand to be worth trillions of dollars and will complain if it only gets to 55 billion. This despite the cost to society in forcing stereotypes and the large opportunity costs for many others that monopolies can represent.

      [Repeat disclaimer: I want to argue for serious consideration of significant change to copyright, but am not taking a firm position on details.]

    • >> And really, every writer and musician dreams of being the next Rowley or Beatles.

      This is an important point but is no reason to give up trying to argue reason.

    • Thanks for deleting a duplicate of the earlier comment, but I didn’t intend to emphasize “no” except to make the error clear (since it’s a small word in the middle of the sentence). So the intended reading (as if I didn’t make many numerous mistakes in my writing already) would not emphasize any part of that sentence.

      > >> And really, every writer and musician dreams of being the next Rowley or Beatles.

      > This is an important point but is no reason to give up trying to argue reason.

      Why give this any further consideration? Because I do think that is a very important point you mentioned about people’s aspirations/beliefs. Emphasizing “no” in my reply would seem to me to be overlooking that value simply to take another jab at copyright law.

      OK, a little news. The current top 3 stories on techdirt (5pm EST) are interesting developments.

      http://www.techdirt.com/blog/casestudies/articles/20110212/15335213071/case-study-when-getting-your-music-discovered-gets-ugly.shtml This is an interesting case study of the power of viral videos/software. People like to participate and create humorous things. It also shows how if you don’t plan ahead of time, you may end up without a lot of money despite a lot of attention. Of course, one has to imagine this mistake can be rectified in the future as the artist provides future enhancements and ideas to the original product, as that should again draw attention. There is a very real lesson here. In fact, (from something I read recently) I think Blizzard stated at some point that they don’t participate in the PS3 because they like the control PC software updates give them on the PC platform. In a sense, their software is equipped with a means to reach out to their audience. So if you make a mistake, you can partly make up for it later without requiring a large effort and luck.

      http://www.techdirt.com/articles/20110308/01101513393/ftc-puts-patent-trolls-notice.shtml#comments I’m not ecstatic about this one (though maybe after I read the report, I’ll recognize it as better), but it does appear a government agency is getting serious about the pitfalls of our patent system.

      http://www.techdirt.com/articles/20110308/02354213395/massive-research-report-piracy-emerging-economies-released-debunks-entire-foundation-us-foreign-ip-policy.shtml This is supposed to be a great research report condemning tight US IP efforts (I haven’t read the article yet). Unfortunately, they don’t license the report itself to capitalize on what they are advocating. Perhaps this was a technical oversight with the authors not exercising control over the licensing used with release of the paper. Perhaps a case of not yet putting their money where their mouth is, but I’m hopeful they will fix that omission in the future.

    • Just a quick comment. I set up WordPress to automatically hold comments with three or more links (arbitrary). So when it didn’t show up at first, that’s the reason. On to your links…

    • You’ve probably been following the conversation on Red Hat obfuscating its kernel source. There’s a good discussion here.

      It’s fascinating because the development neatly dovetails with my own post and the article at the NY Times. No Elizabethan playwright could have survived if the playhouses hadn’t created a paywall of some kind. Red Hat is reacting to the same problem. To draw an analogy, it’s as if they were an Elizabethan playhouse who made no effort to protect the plays that they produced. Their subscription services are somewhat analogous to being charged to see the play. But this latest move is the realization that they also need to protect the scripts of their plays so that other playhouses don’t simply produce the self-same plays without having to invest in playwrights. The fact that playhouses were so parsimonious with their scripts meant that there was even greater demand for new plays and playwrights. In a similar sense, Red Hat’s move might be a positive for programmers and others in the field.

    • >> To draw an analogy, it’s as if they were an Elizabethan playhouse who made no effort to protect the plays that they produced. Their subscription services are somewhat analogous to being charged to see the play. But this latest move is the realization that they also need to protect the scripts of their plays so that other playhouses don’t simply produce the self-same plays without having to invest in playwrights.

      It’s a decent analogy, but we should note some points before concluding too much.

      Oracle, a big and influential “playhouse”, protects their works with monopoly rights, so it is fair play under today’s copyright rules for Red Hat to also leverage something. They have leveraged the share-alike GPL and now apparently want to go a little further.

      What might happen were it true that Oracle could not leverage legalized monopolies of any sort for themselves?

    • What might happen were it true that Oracle could not leverage legalized monopolies of any sort for themselves?

      Then they would probably be about the size of Red Hat, if that. I don’t know that much about Ellison, but he’s no Steve Jobs or Bill Gates. He seems more like an opportunistic card shark.

    • >> No Elizabethan playwright could have survived if the playhouses hadn’t created a paywall of some kind.

      I don’t see how that follows. In the Red Hat case, we don’t have a comparison with a no-copyrights environment as would be necessary for a direct comparison. Oracle leverages their copyrights.

      Also, Red Hat and many other small FOSS firms are in fact in business, so we can’t make direct claims from the Red Hat case.

      As for playwrights back then if script “paywalls” didn’t exist..

      Other businesses might want playwrights to help them write “commercials”, advertisements, or gimmicks. How about impromptu events that relate directly to the paying audience. [Joke-telling in modern times.] How about those businesses or individuals wanting influential and creative letters being written or who would pay to improve the brand of their business by appearing to create interesting print material in relation to their business?

      How about the fact some playhouses would want leverage and would pay for original material seen there first? And they would add other elements to the entertainment environment to help keep those customers who went there first and who spoke in glowing terms about the experience?

      How about that while playhouses might lose their leverage as another grow in prominence, skilled playwrights could always appeal to the new games in town to help them fight off other competitors?

      Also, I’m sure the Internet would have been quite a variable in the mix.

    • Other businesses might want playwrights to help them write “commercials”, advertisements, or gimmicks. How about impromptu events that relate directly to the paying audience. [Joke-telling in modern times.] How about those businesses or individuals wanting influential and creative letters being written or who would pay to improve the brand of their business by appearing to create interesting print material in relation to their business?

      Of course, and as I’m sure you know, none of those things existed in the early 1600′s. The play was the thing.

      The analogy only works inasmuch as it demonstrates the need for *some* kind of paywall. RedHat, I think, is demonstrating the limitations of a completely free and open system of intellectual property.

  21. I don’t know if this concern has been expressed, but how about a person who hits jackpot once with a work people like but then fails to go further? Is this a reasonable fear? Should the creator try to hold on to the past with a lock and key?

    Well, I’ll say that I think people understand fairness and if some give change to those in the street who give nothing back or through various charities, I think a healthy number (and let’s not forget Internet reach) might value the “brand” enough to bias towards the artist future transactions. Eg, if they were going to buy a shirt and knew the primary artist was struggling, you would be more likely to buy so that the artist would get some of the compensation. Would it not make you happy to know that the person that made you happy is happy because of something you did in return? At least I think this reciprocation condition is a factor.

    Creators can partner. There is no absolute need to try to run businesses yourself if you don’t want.

    Anyway, it’s not as if taking a night job is unheard of, at least until you gain momentum or some luck.

    Strong monopolies restrict other artists and the audience. They also enable the best traders (and having lots of money already) to become rather powerful.

    • Anyway, it’s not as if taking a night job is unheard of, at least until you gain momentum or some luck.

      No, but I don’t need a night job. :-) I’ve been a carpenter, builder and contractor, alternately, for a decade and a half. I’m still young, but the business is wearing.

  22. Pingback: software patents – Latest software patents news – Ridiculous Software Patents: a Developer’s Nemesis

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