Intellectual Property

The Union-Tribune reports that Wal-Mart and other digital-photo printer services are refusing to print pictures that, in their opinion, look “too good” and thus might be copyrighted by a professional photographer. This is likely in response to guidelines drawn up by the Photo Marketing Association International, which among other things instruct “If there is not a clear lawful basis to make the copy, the safer course is to decline to copy.” While not legally binding, following the guidelines are a good hedge against being nailed for copyright infringement by the PMAI, as Kmart Corp. learned when it was sued in 1999.

I suspect these guidelines came out of a genuine desire to “protect our members’ legal rights,” but I can’t help but notice how well suited they are for stifling legitimate competition. If you’re a crappy photographer then no problem, go ahead and use the online photo-processing site. But if you’re good at using Photoshop and your high-end consumer digital camera then you’re going to get harassed. Next time leave it to a professional, or better yet become one yourself and join the PMAI. I’m sure flashing a membership card would be more than enough to convince the clerk at Wal-Mart that you’re legit.

(Link via Copyfight)

Update: I should point out it’s not just Wal-Mart that’s being hard-nosed here. On various blogs people are talking about trouble with a variety of other services, including Kinkos and Kodak’s Ofoto.

I never bothered seeing Star Wars Episode II, but I figured I should do it before going to see Episode III tonight. Unfortunately this was also the plan of about a thousand other people, so all the video rental places in the area were out of anything Star Wars related. According to the woman at one local store, they get a bunch of DVDs in when a movie first comes out, then over time they start selling off their extra copies until they only have a few left. When a sequel comes along they’re invariably swamped, but there’s no way for them to have more disks on-hand just for that period.

Of course, an obvious solution would be to license video stores to burn DVDs on-site whenever they have increased demand. The store could keep track of the number they rent out and kick back some of that revenue to the movie companies. I’d get to watch my movie, the rental place would get my money and the movie company would get paid. It’s not like allowing on-site burning of DVDs would open the door to illegal copying any wider than it already is. But the movie companies haven’t gone for it — I have to assume it’s more important to them to maintain the fiction that they sell little plastics disks rather than content than it is to provide better service to potential customers.

The trouble is they’re driving those customers to other alternatives. In this case, after checking four different video places we eventually gave up and all watched a copy a friend of mine had downloaded via the P2P networks. In spite of my strong political opinions about fair use and abuse of copyright, I have no problem with paying for my entertainment and I prefer that over going to the P2P networks. It’s unfortunate that the content cartel can’t get its act together enough to provide a reasonable alternative.

As is being reported all over the net, the U.S. Court of Appeals just ruled that the FCC doesn’t have the authority to force all manufacturers of video hardware (televisions, computers, video recorders, etc.) to disables the ability to make copies of shows where copying doesn’t fit the broadcaster’s business model.

As Declan McCullagh at C|net points out in more diplomatic terms, now the MPAA will actually have to lobby congress to extend their government-enforced monopoly rather than force it through the less-accountable FCC.

Ed Felton argues that the new Family Movie Act (passed by Congress on Tuesday and likely to be signed by the President) actually protects free speech rather than, as some might claim, protects censorship. (The act, for those who haven’t heard, makes it legal to edit out limited portions of a non-pirated home-viewed movie at the direction of a member of that household — so it’s OK to make a DVD player that optionally skips all the sex scenes, scenes with Jar-Jar Binx, or for that matter the sex scenes with Jar-Jar Binx.)

I agree with Ed here — empowering individuals to choose what they want to watch or not watch doesn’t promote censorship any more than movie reviews or the TV remote control do. The only case that would trouble me is if there were a systemic bundling of edits — for example if the only anti-violence filter for a movie also filtered out all the sex scenes. But given that such bundling already happens in the editing room of the movie itself and given that there will likely be competition in this arena (baring broad patents) I don’t see that scenario as likely.

Quick update on the orphan works issue: The Copyright Office has posted initial comments, and reply-comments deadline are due May 9th.

The crux of the problem is the fact that you needn’t register a work with the Copyright office, or even put the little “(C) Copyright 2005” mark on it for it to be copyrighted anymore, nor do you need to renew. A doodle on a napkin is just as copyrighted as a composition registered with the Copyright office (though you can’t collect damages until you actually register the work). So nowadays copyright isn’t even fire-and-forget — the gun can be still sitting on the mantle. Until that’s changed I’m not sure of a good way out of this morass.

Personally I’d like the current copyright rights only be enforceable for works that are registered with the Copyright Office, with the onus of the copyright holder to update his or her contact information in a timely fashion, and every so often to take active steps to renew the copyright. These shouldn’t be onerous steps — a simple form with little or no processing fee should be sufficient. If a work is not registered or renewed, or if it’s deemed impossible to find the copyright owner, then the either the work should fall into the public domain or possibly become protected under a much more limited set of copyright restrictions such as those provided under the Creative Commons Attribution License.

In case you missed the OSX homage that Google posted and then quickly removed after Apple threatened lawsuit, a French site has posted either a cached copy or clone of it (I’m not sure which), as well as a Doc-at-the-bottom version. Look quick, this time it’s Google that’s sending the cease and desist. (Link by way of CoCo.)

I’ve often heard (and sometimes said) that there are three possible outcomes to the copyright wars:

1. The Content Cartel manages to stuff the djinni back in the bottle and reinstate themselves as gatekeepers. The Internet dream gets twisted back into pay-per-view with email.
2. A citizen revolt against congress’s constant erosion of fair use, free speech and free market to keep the Cartel’s lobbyists fat and happy. We regain the rights to our own culture, but only after much blood has been spilled on the field and in the courts.
3. The Content Cartel keeps their pocket congress-critters and enact even more draconian copyright laws, only to discover that the more restricted a medium is the less it can compete with the new liberated content model.

OurMedia.org (just released in Alpha) is another step forward towards making the third scenario a reality. It’s a new web service that’s offering to host any sort of creative media (including audio & video). For free. Forever. You own your own copyright, you choose your own license.

This is similar to what The Internet Archive does, and in fact the IA is providing free storage and bandwidth for OurMedia’s media files. OurMedia is focusing much more on the general pro/am community though, and includes a free blog & Wiki (all based on Drupal), community-based rating and comment systems and plans for many more social-network support plans.

(Thanks to Seth Finkelstein at Infothought for the link.)

There’s a nice quote by Jeff Tweedy (leader of the band Wilco) in Lessig’s column in last month’s Wired:

“Music,” he explained, “is different” from other intellectual property. Not Karl Marx different – this isn’t latent communism. But neither is it just “a piece of plastic or a loaf of bread.” The artist controls just part of the music-making process; the audience adds the rest. Fans’ imagination makes it real. Their participation makes it live. “We are just troubadours,” Tweedy told me. “The audience is our collaborator. We should be encouraging their collaboration, not treating them like thieves.”

It’s similar to something I’ve been mulling over for a while now about art in general. Art isn’t created out of nothing. It’s inspired by culture, augmented by technology, given its own voice by the audience, advertised by word of mouth and filtered by fans. The artist steers these forces, but they’re created by a cast of millions.

Why do we credit the violinist and the composer of a piece but not the master luthier who made the violin? Did his artistry contribute any less to the beauty of the music?

Lawrence Lessig has just sworn off publishing “in any academic journal that does not permit [him] the freedoms of at least a Creative Commons Attribution-Noncommercial license.”

Accademic journals are funny economic actors, because it’s very clear they provide publication, archival and authentication services to an academic community, but not the content. The community that eventually reads the journal also provides the real value in a journal: its authors, reviewers and editors, usually for free or a pittance. While there’s no denying that publication and archival services cost money and should be compensated, high subscription prices or other access restrictions are a disservice to the entire author-reader community. As the main provider of value in the process this community has considerable power. It’s more pronounced in accademia, but I see a lot of similarity to the growing pains the record industry is feeling, with consumers and artists both realizing the value added by the middleman isn’t as valuable as they thought. I suspect these fights in academia contain some good lessons for how the powershifts will other content areas might play out — assuming financial interests in the old way things were done don’t manage to put the djinni back in the bottle.

Side note: the two academic societies in my field, IEEE and ACM, both require that an author sign over his or her copyright to them before publication. Both policies have become more open in the past decade, in particular by granting permission for articles to be published on the author’s own website, but Lessig’s oath would still rule out either society’s journals because they don’t grant permission to others. ACM lays out its rationale for its copyright program, and concludes: ACM firmly believes that it achieves a balance among divergent goals; that its use of copyright within its publishing program in fact serves the public good by enabling the creation and widespread dissemination of quality works in various formats and media. This may be the case right now, but with media technology changing so quickly I suspect (and hope) author-reader pressure will continue to push these policies towards more openness.

I finally watched/listened to Wizard People, Dear Readers last night, Brad Neely’s unauthorized alternative narration to the Harry Potter and the Sorcerer’s Stone movie. It’s synched to the movie — turn the sound on your DVD low (so you still hear the music) and hit play on both at the same time. The style is less MST3K and more like hearing a narration of the movie by an earnest but clueless poet-turned-subtitle-writer. It’s also surprisingly funny.

The film/soundtrack has been out for almost a year, but according to Stay Free! Daily Warner Brothers has just recently started strong-arming theaters to cancel screenings, threatening to cut off all ties with venues that show it. Presumably they’re threatening boycott instead of copyright suit because, as a parody, WPDR is probably but not certainly legal — and they’d rather keep that uncertainty if possible. Why they’re actively trying to stifle something that makes them money though is a little of a mystery — after all, you can’t watch WPDR without purchasing the film rights for Harry Potter (in my case, a whopping $14.99 for the DVD just to watch it with the sound turned off!). I’ve no great insight into the minds of Warner Brothers, but I can imagine three possible reasons they want to crush this movement, ranked in order of likelihood:

1. Studios make their box-office money on new releases, not so much second-run. The more fans make their own stuff based on old works the less oxygen (movie-goer attention, theater time, press, etc.) will go to their new releases. This is just a way to kill off another potential competing genre while it’s still in its infancy.
2. As one of the winners in the “old media” model, WB executives fear change. They figure it’s better to shut down anything new than to see if it might actually make them more money in the long run.
3. Maybe J.K. Rowling or some other important person made a fuss?