Important news:The bottom line: I have decided to shift my academic work, and soon, my activism, away from the issues that have consumed me for the last 10 years, towards a new set of issues. Why and what are explained in the extended entry below.
Good luck, Larry: whatever you do in your new field, I'm sure it's going to be pretty damn good.
In a significant announcement, the Creative Commons organisation has said that it is retiring the Developing Nations licence:The Developing Nations license is in conflict with the growing “Open Access Publishing” movement. While the license frees creative work in the developing nations, it does not free work in any way elsewhere. This means these licenses do not meet the minimum standards of the Open Access Movement. Because this movement is so important to the spread of science and knowledge, we no longer believe it correct to promote a stand alone version of this license.
This move is an interesting indication of the growing ability of open access to define the terms of the debate about open content.
Rather better than my curt dismissal below is this more rigorous explanation of why copyright should not be perpetual. Interestingly, it's a wiki, and therefore a collective creation. Also interestingly, it suffers from one fairly major flaw: it is much too long. So much so that even I, crazed copyright enthusiast that I am, find it hard to read to the end.
I think this may be a problem of the wiki format, which encourages honing and addition, but makes deletion difficult, because it feels like an act of sacrilege against the creation of others. But as any professional writer will tell you, one of the most valuable services that can be performed on prose is to cut it. When it comes to words, less is nearly always more.
Aside from its intrinsic interest, there is a good reason for observing closely what happens to content in Australia. Because of the Free Trade Act kit passed, Australia is imposing many of the US's most stupid legal instruments in this domain; how content fares under this regime could well serve as a warning for all those other countries contemplating similar moves.
The best place to find out about content down under is the book Open Content Licensing: Cultivating the Creative Commons, which brings together a couple of dozen papers from a conference that took place a couple of years ago (what took so long?). As well as the always-entertaining Lessig trot down copyright's memory lane, there's plenty about the particularities of Australian law and practice, as well as an unusual section on computer games and law. It's available as a free PDF.
Although there's plenty written about free software and open source, there's relatively little in the form of books that try to offer a synoptic view. This makes the annual Open Source Jahrbuch, particularly valuable. As for 2004 and 2005, this year's is freely available as a PDF.
As you might expect, it is planned with a Germanic thoroughness, weighing in at 500 pages. As well as big names like Eben Moglen and Larry Lessig, it has a host of less well-known writers, who nonetheless have interesting things to say. I particularly liked the details of the famous Munich LiMux project, and the corresponding project in Vienna, WIENUX. Also good is the article on open source community building, which analyses several smaller projects.
I was pleased to see plenty of space given to both open content and open access. As readers of this blog have heard ad nauseam, there exists an important commonality between these opens, and it's gratifying to see open source's younger siblings getting some recognition here.
All-in-all, I'd go so far as to say that this is the best book on open source that has been published in the few years or so. Taken together, the whole series of Yearbooks form perhaps the most important collection of writings on open source and related areas to be found in any language.
Oh dear, Larry's still having no luck rolling back US copyright law:In a move that's a blow to the U.S. movement to reform copyright law, the U.S. 9th Circuit Court of Appeals ruled against the Internet Archive's Brewster Kahle, in his lawsuit to allow orphaned works into the public domain.
Rejecting the argument of Larry Lessig, the court decided the case was too close to Lessig's Eldred copyright suit of 2002, and that's settled business
It would be hard to imagine a more definitive study of the field of copyright than this: over 5,500 pages, in seven volumes, occupying 25 in./63 cm of shelf space. Although there are no figures on the weight, these are clearly weighty tomes.
It takes a particular kind of individual to devote seven years of their life to writing such a treatise (and goodness knows how many more acquiring the ability to do so), but the author, Bill Patry, seems to have the perfect biography for the task:Bill Patry is a renowned expert on Copyright Law who currently serves as Senior Copyright Counsel to Google Inc., where he is involved in diverse cutting edge issues. Patry has practiced copyright law for 25 years, 12 years of which have been in private practice, including appellate advocacy. He has been cited numerous times in landmark U.S. Supreme Court decisions.
As a full-time law professor for 5 years and an adjunct for another 5 at the Georgetown University Law Center, Mr. Patry appreciates the importance of teaching and scholarship.
From his eight years in working in the U.S. House of Representatives and Copyright Office, Patry is familiar with the nitty-gritty of legislation and the broader policy issues that Congress deals with. He has testified before Congress, and been retained as an expert witness on numerous occasions.
Patry is the author of numerous law review articles and several books. He also served as editor or editor-in-chief of the Journal of the Copyright Society of the USA for over ten years.
Given the centrality of Patry's expertise for many of the areas covered in this blog - notably open content and open source, to say nothing of intellectual monopolies - and his current position at Google, which allows him a privileged perspective on the online world, I thought it would be interesting to ask him a few questions about his work.
Glyn Moody: As background to yourself, could you say briefly what exactly the Senior Copyright Counsel to Google does - what sort of things do you get involved in that readers might know about?
Bill Patry: Google's legal department is uniquely organized. We have the traditional litigation and transactional lawyers, but we also have "product counsel," counsel who work on particular products, like Books or Videos. We also have policy and government relations lawyers. People tend not to be segregated though, and will work on projects across what in a law firm would be called a department. And that's my role par excellence: I deal with copyright issues wherever they arise.
Glyn Moody: How did the copyright treatise come about - is it something you'd been dreaming of doing for years? Was there any particular inspiration?
Bill Patry: The book started out as a second edition to an earlier work and had I stuck with that, it woudn't have taken so long. But I got into a dispute with my prior publisher, pulled the book, rewrote it almost entirely and expanded it about three fold. My idea was to write a book that drew on all the things I done and to also rethink the way legal treatises are written and used. Blogging has been an important part of that process, making the exchange of ideas interactive and not just one-way.
Glyn Moody: Could you give a few facts and figures about it for those of us who won't have the opportunity to get our hands on the real thing?
Bill Patry: The book is 7 volumes, no appendices, about 5,832 pages, 25 chapters. It is the first new multivolume treatise on copyright law in the U.S. in 17 years, is the largest by almost 100% (in text), and is I think one of the largest legal treatises even written by a single individual.
Glyn Moody: How will the The Patry Treatise Blog function alongside the book? What do you hope to achieve by creating it?
Bill Patry: I have high hopes for the blog as helping in a number of respects. It provides a way for people to give me feedback, suggest things, ask me what I meant etc. All of us have read things and have not been sure what the author meant. We're reluctant to ask the author and it takes time to write letters. With a blog, you can do it quickly, easily, and get very fast answers. I also want to be able to provide readers with important updates before the actual updates come out and to try out concepts.
Glyn Moody: Looking to the future, do you think there will ever be another such hardcopy treatise on copyright, or is this the last one before everything is purely online? Any hope the next one will be free and accessible to all?
Bill Patry: I'm not a futurist; I can't understand the past or present, much less the future.
Glyn Moody: As a copyright scholar, what's your view of Richard Stallman's GNU GPL, which draws its power from copyright? Is there any weakness in the GPL's approach to granting software freedoms from a copyright point of view?
Bill Patry: I met Stallman about 20 years ago, but haven't folllowed him since.
Glyn Moody: What impact do you think Google and its various projects will have on the field of copyright?
Bill Patry: Don't know.
Glyn Moody: From a historical perspective, how important do you think open content and the Creative Commons movement will prove? Are we moving from one copyright era to another? Is the role of copyright changing?
Bill Patry: I think Creative Commons has been wonderful in providing a way for people to license their works as they see fit. Recently, I did a post on the "Long Tail" and its effect on copyright. Copyright is an economic right and it will follow, willingly or not, where the market eventually goes.
Glyn Moody: From a theoretical viewpoint, in the best of all possible worlds, how would copyright evolve to create a legal structure that allows all these new kinds of uses to flourish? Similarly, drawing on your knowledge of copyright in the past and present, how do you think copyright will actually evolve - both in the US, and globally - in the short term and longer term?
Bill Patry: I think copyright has become less and less responsive to the balance of incentives and exceptions that the 18th century English common judges grasped intuitively. Our ability to adapt has been seriously hampered by trade agreements, and that's a big problem.
Glyn Moody: Do you have any words of advice for people like Larry Lessig who are trying to change the legal framework of copyright to allow more sharing and collaboration?
Bill Patry: I have trouble enough figuring out my own problems.
Glyn Moody: Any other comments you'd like to make about your treatise or copyright?
Bill Patry: Please buy it, use it, and give me feedback.
So the Free Culture Foundation has launched. That sounds good, but I can't really tell from the site what it's doing: the philosophy section contain essays that taken together are hardly coherent. Freedom is good, but not when it leads to confusion. Perhaps something will emerge with time.
As the author of two books with the word "code" in the title, I naturally gravitate to other tomes that also draw on this word. But Larry Lessig's Code is rather special: it's one of the definitive texts of the Net age. I remember reading version 1.0, when it came out; and now, following a suitably wikified genesis, here's Codev2. (Via Michael Geist's Blog.)
The Gowers Review is now out. I've not had time to read it all yet, but there's a good summary in the Treasury's press release:Whilst the Review concludes that the UK has a fundamentally strong IP system, it sets out important targeted reforms. The reforms aim to:
* strengthen enforcement of IP rights to protect the UK's creative industries from piracy and counterfeiting;
* provide additional support for British businesses using IP in the UK and abroad; and
* strike the right balance to encourage firms and individuals to innovate and invest in new ideas while ensuring that markets remain competitive and that future innovation is not impeded.
There's some good news in this:To ensure the correct balance in IP rights the review recommends:
* ensuring the IP system only proscribes genuinely illegitimate activity. The Review recommends introducing a strictly limited 'private copying' exception to enable consumers to format-shift content they purchase for personal use. For example to legally transfer music from CD to their MP3 player;
* enabling access to content for libraries and education establishments - to ensure that the UK's cultural heritage can be adequately stored for preservation and accessed for learning. The Review recommends clarifying exceptions to copyright to make them fit for the digital age; and
* recommending that the European Commission does not change the status quo and retains the 50 year term of copyright protection for sound recordings and related performers' rights.
But I worry about what the following will mean in practice:With the music industry losing as much as 20 per cent of annual turnover to piracy and counterfeiting, the Review recommends strengthening enforcement of IP rights through:
* new powers and duties for Trading Standards to take action against infringement of copyright law;
* IP crime recognised as an area for police action in the National Community Safety Plan;
* tougher penalties for online copyright infringement - with a maximum 10 years imprisonment;
* lowering the costs of litigation - by using mediation and consulting on the use of fast-track litigation. The Review acknowledges that prohibitive legal costs affect the ability of any to defend and challenge IP; and
* consulting on the use of civil damages as a deterrent for IP infringement.
If this means going after large-scale counterfeiters, well and good. But if we're talking about "tougher penalties" and "police action" for all kinds creative uses - mashups etc. - then there are going to be big problems.
Parenthetically, here's a characteristically wise and well-written piece by Larry Lessig in today's FT about one aspect of the report. He's worried that the Gowers recommendation on not changing the status quo for sound recordings may be ignored by the UK Government to keep some of its industry chums happy:There is not much doubt about what it will say on this proposal. There is much more doubt about whether the government will follow the report's sensible advice.
Lessig then makes his usual sensible pitch about orphan works, including with the following splendid peroration:There are some who believe that copyright terms should be perpetual. Britain did the world a great service when it resolved that debate almost 300 years ago, by establishing one of the earliest copyright regimes to limit copyright to a fixed term. It could now teach the world a second important lesson: any gift of term extension should only go to those who ask.
Larry Lessig has a nice example of how CC materials can feed off each other in all sorts of creative ways. In this case, the result is the aptly-named "C-shirt".
Larry Lessig has some wise words on what Flickr gets right and YouTube gets wrong.
The philosophical schism between open source and free software is well known, but there's another interesting split emerging between free software and the Creative Commons movement. This isn't exactly new, but as the open content movement begins to gain momentum, it's an issue that people are starting to worry about.
If you want a good introduction to the basics of the dispute, Intellectual Property Watch has a useful report from the recent Wizards of OS 4 conference, where these tensions were exposed.
...you wait for ages, and then three turn up at once.
Well, two at least: I wrote recently about Willinsky's The Access Principle, and now here, hard on its heels, comes Yochai Benkler's The Wealth of Networks.
If the name Benkler is unfamiliar, you might want to glance at the suggestively-titled Coase's Penguin (yes, that penguin), which is effectively a sketch of the present book. Both, then, are about how the network changes everything, and how all the opens and the various kinds of commons that are central concerns of this blog lie at the heart of one of the most profound economic, social and political transformations seen in recent years.
But don't take my word for it, listen to what Larry Lessig has to say, with typical generosity:This is — by far — the most important and powerful book written in the fields that matter most to me in the last ten years.
Then buy/download the thing (CC licence, of course) and read it. I know I will. The fact that I haven't yet finished its 500+ pages is not just another reason not to listen to me: it's also a further hint of why eventually all books will be freely available as digital downloads online. Basically, reading on a screen and reading text placed on a physical object are two quite different experiences, and warrant two quite different business models.
As Lawrence Lessig famously noted, Code is Law. Which means that Code is Politics, too, since laws are drawn up by politicians. But the intimate relationship between code and politics is becoming manifest in a rather different context (pity about the yellow on black text).
The issue here is about the software used in voting machines. Since, one day, all voting will be carried with such machines (unless we decide to go back to using ostraca), now is the time to consider why free access to the code that runs them is indispensable for political transparency.
It comes down to this: if you are dealing with a black box, you can have absolutely no faith in the results it produces. It might just make them up or - worse - change them subtly, or perhaps be pre-programmed to crash if a particular party gets too many votes, requiring a complete re-run, with knock-on effects on voting patterns.
If you have the source code you can run it and examine what it does with various voting inputs, and check that it has no nefarious sub-routines. However, even this is not enough for full confidence in the voting machine: paper audits are also indispensable for checking on the consistency of the outputs, and allowing for the ultimate fall-back - counting by hand.
Still, this is a clear instance of where, in a literal rather than metaphorical sense, closed source jeopardises the very basis of democracy. Looks like RMS was right.
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