Category: free culture

silly videos and obscure post-structuralist terms

Evgeny Morozov has a new review of Jaron Lanier’s You Are Not a Gadget, and he spends a fair bit talking about Wikipedia, the touchstone for how the Internet is changing culture.  (Wikipedia researcher Ed Chi offered to review it for the Signpost, but Knopf publicity has so far ignored my every attempt to request a review copy.)  As I understand it, the book is in part an extension of Lanier’s Wikipedia-centered 2006 essay “Digital Maoism: The Hazards of the New Online Collectivism“.  I haven’t read the book, but I trust Morozov’s assessment.  His central point is this:

Technology has penetrated our lives so deeply and so quickly that the only way to make sense of what is happening today requires not only drinking from the anecdotal fire hose that is Twitter, but also being able to contextualise these anecdotes in broader social, historical and cultural settings. But that’s not the kind of analysis that is spitting out of Silicon Valley blogs.

So who should be doing all of this thinking? Unfortunately, Lanier only tells us who should not be doing it: “Technology criticism should not be left to the Luddites”. Statements like this establish Lanier’s own bona fides – as a Silicon Valley maverick unafraid to confront the cyber-utopian establishment from the inside – but they fail to articulate any kind of vision for how to improve our way of discussing technology and its increasingly massive impact on society.

Morozov says that our understanding of the legal dimensions of the Internet have been elucidated by the likes of Zittrain, Lessig and Benkler.  But humanist and social scientists, he says, have let us down in their duty to explore the cultural dimensions of the rise of the networked society, by either ignoring it or relying “obscure post-structuralist terms” that occlude whatever insights they might or might not have.

The overall point, that the academy hasn’t done enough to make itself relevant to ongoing techno-cultural changes, is right on target.  But I think Morozov’s glib dismissal of work in media studies, sociology, anthropology, etc., is unfair to both the main ideas of post-structuralism and the writing skills of the better scholars who do work on technology and culture (Henry Jenkins and Jason Mittell come to mind, but I’m sure there are plenty of others).  Lanier’s epithet of “digital Maoism” is crude red-baiting; I’m not sure whether Morozov’s jargon jibe is red-baiting (post-structuralism being the province of the so-called academic left), he genuinely doesn’t think much of how humanists have analyzed the Internet, or he is just being contrary.

Post-structuralism is complicated (and I don’t pretend to be an expert) but what’s relevant in this context, I think, is (as the Wikipedia article obtusely puts it) the idea of “the signifier and signified as inseparable but not united; meaning itself inheres to the play of difference.”  Put another way, culture (that is, a work of culture) is valuable in whatever ways culture (that is, a culture, a group of people) values it; what matters is not the work itself (and its inherent or intended meaning) but the relationship between a work an its audience.  Related to this is a value judgment about what kinds of culture are better or more worthy of attention: “writerly” works that leave more opportunity for an audience to create its own meanings vs. “readerly” works that are less flexible and open to reinterpretation.  The relevance of these ideas for the Internet’s effects on culture should be obvious: audiences now have ways collaborating in the creation of new meanings and the reinterpretation of cultural works, and can often interact not only with authors work, but with the authors themselves (thereby influencing later works).

So when Lanier sneers at ‘silly videos’ and Morozov complains that Lessig doesn’t address “whether the shift to the remix culture as a primary form of cultural production would be good for society”, I can’t help but see it as the crux of a straw man argument.  You would have us give up our current system that creates such wonderful culture (left helpfully unspecified, since there’s no accounting for taste) in exchange for remixed YouTube tripe? But humanists are starting to place more value in the capital intensive products of the culture industry precisely because of the way that audiences can remix them and reuse them and create meanings from them.

How freely licensed photos generally get used (a sequel)

Last year, I blogged about how freely licensed photos are used and misused across the web.  Figuring out how my photos are being used (as long as I’m being credited by name) is much easier now with the Google search options (rolled out in May 2009 and with more options added just this month), which let you limit search results to newly indexed pages.

I have over 3500 CC BY-SA photos on Flickr (including lots of family photos, abstract shots, and other stuff unlikely to be reused) and probably around 1000 original photos on Wikimedia Commons, generally available under both GFDL and CC BY-SA (and a good portion of which are not duplicated on Flickr).  At this point there is a fairly steady stream of reuse, most of which I’m not directly aware of (except when I go looking, like now).  I estimate that my ~4000 photos are put to new uses at  rate about 15-20 times per week.  Let’s see what types of uses my photos have been put to recently.

Searches (limited to results first indexed within the last week) for “ragesoss” and “Sage Ross” ought to turn up nearly all of the new cases where I’m being credited for photos.

As before, the most active user of my photos is World News Network (wn.com), a set of algorithmically-generated sites that are titled like local or special interest newspapers but basically just link to offsite news stories, add free photos, and run ads against the photos and headlines.  For example, this story about pesticides in peaches links to the actual story from The Oklahoman but adds my picture of peaches.  The credit reads “(photo: GFDL / Sage Ross)”.  Although I think a link back to the source or my Commons userpage (which is where the attribution link at Commons points) is appropriate, it probably doesn’t violate the letter of the license (which is already stretched thin when applied to photos and other things very dissimilar from software manuals).  In another example, they use a CC license instead of the GFDL for my photo of coffee beans.  In this case, the credit reads “(photo: Creative Commons / Ragesoss)”, with no link to the specific license or the source.  This violates both the spirit and the letter of the CC BY-SA license.  World News Network has used my photos hundreds, maybe thousands of times, and I’m sure many other photos from Commons by other Wikimedians are being systematically (mis)used similarly.

Another common type of usage is from the many sites that are trying to monetize user-generated content and share the ad revenue between writer and website owner.  In these cases, it’s the individual writers who are responsible for obtaining photos (and rights thereto), so compliance with free licenses varies widely.  I found my photos on articles from suite101.com and hubpages.com.  The suite101 article, “Free Instructions on How to Make an Apple Pie“, uses a series of photos I took while my sister was making pie.  All the photos but one are credited to me and link back to the source on Commons, although no license info is indicated at suite101; this violates the letter, but not the spirit, of the CC licenses.  Oddly, the lead apple pie image is misattributed and links to an entirely different pie photo from a quasi-free stock photography site; the writer probably used that image first but then replaced it when she found my photos.  At HubPages, the article “Health Insurance Rescission and How To Fight It” uses my photo but merely credits it as “Photo by ragesoss” with no link or license information.  AssociatedContent is another site like that where my photos show up frequently; they seem to be better than most at following the provisions of free licenses.

Blogs use my images somewhat less frequently.  Recent uses include this entry in the Utne Reader “Science and Technology” blog (which does a great job with the credit line, linking to both source image and the specific CC license) and this one from the Choices Campus Blog (which has the mediocre credit line “Photo Credit: ragesoss at Flickr.com” with no link).

A final significant category of uses is in articles from professional news and content sites.  Overall, these sites are somewhat more likely to use freely licensed images properly, but sloppy or improper uses are still common in my experience.  The only recent credit I found is from the CNBC story “GE, Comcast Continue Talks Over NBC Stake“.  The unlinked credit line simply reads “Photo: Ragesoss”, but the photo is one of my few early photos on Commons that I released as public domain rather than a copyleft license.  So CNBC doesn’t have any legal obligation to give a more precise photo credit (or even to credit me at all), although if only for the sake of journalistic integrity they probably ought to do better.

Conclusion: People use freely licensed photos liberally from Flick and Wikimedia Commons, but there isn’t much indication that most reusers understand what the licenses mean or what they require from reusers.  The free culture movement has a long way to go; cultural change is a lot slower than license adoption.

On a tangent, it’d be nice if Wikimedia Commons was equipped with something like refbacks combined with image recognition to automatically discover and collect web pages that are reusing Commons media.  I think I’ll make a proposal on the Wikimedia Strategy Wiki when I get a chance.

Wikipedia and Olympics Committee heading for collision?

CC-BY-SA photo of Usain Bolt, by Richard Giles

It looks like Wikipedia is  actually at the center of the recent copyright kerfluffle of the photographer (Richard Giles) who got a legal threat from the International Olympics Committee (IOC) over licensing his images from the Beijing Olympics under Creative Commons licenses.  Giles explains the situation on his blog:

It turns out that my Usain Bolt photo was being used by a book shop in the UK to advertise the launch of the Guinness Book of Records 2010. This was being done without my knowledge, and as they pointed out, in breach of the license granted on the Olympic ticket.

That photo was the only one of 293 in the set on Flickr that was licensed with a ShareAlike license (allowing commercial use) rather than a non-commercial license, and Giles had relicensed that particular photo at the request of another Flickrite so that it could be uploaded to Wikimedia Commons and used on Wikipedia.  And Wikipedia is probably where that UK merchant found it and, assuming the license to be legitimate, used it (so it would seem) under the terms of the free license.

Giles reports that it looks like the IOC really just objects to licensing that allows commercial use.   Depending on what the IOC says in response to his request for clarification, Giles may be changing the license on that Usain Bolt photo and asking the UK merchant to stop using it.

What happens now?  By buying a ticket to the Olympics, Giles’ appears to have (implicitly at least) agreed to terms and conditions that say he won’t use photos from the games except for private purposes.  But he does own the copyright to the Bolt photo, and therefore ought to (except for those terms and conditions) be able to license it however he likes.  Will the fine print of an Olympics ticket be strong enough to force Wikimedia (which agreed to no terms and conditions) to stop using the photo and offering it to other downstream users?

LOLcats as Soulcraft

Apparently Clay Shirky is working on a new book. He tweeted a possible title today: LOLcats as Soulcraft. I’m not sure what the book will be about (or whether that was at all a serious suggestion) but as I interpret it, it dovetails with some ideas I’ve been thinking about.

“LOLcats as Soulcraft” appears to play off of the essay-turned-book “Shop Class as Soulcraft” by Matthew B. Crawford, which argues that working with one’s hands, craft work, is intellectually and emotionally satisfying in ways that other kinds of work–either abstract-but-circumscribed “knowledge work” or routinized physical work in the industrial capitalism mode–are not. Crawford argues that craft work connects makers to the objects they make and fosters, in the face of a consumer culture based on disposability and black box technology, an ethic of upkeep and repair and respect for fine workmanship.

Shirky, I imagine, would take that argument for the virtues of craft work and extend it to the virtues of building the virtual commons. Participation in the digital commons, creating LOLcats and YouTube videos and fan fiction and Wikipedia articles and citizen journalism and free software, etc., creates a new sort of relationship between cultural works and audience (or former audience, if you prefer). “If you have some sans-serif fonts on your computer, you can play this game, too.”

This line of thinking naturally leads to one of the main questions both Crawford and Shirky think deeply about: what will/should society look like in the future? In particular, what will economic life be like? The digital commons–as resource, but even more so as an ethic–has the potential to basically cut the legs out from under the knowledge economy that has been increasingly prioritized in rich-world culture (especially in education). Already, as Crawford points out, the logic of scientific management is being applied to “knowledge work”, essentially routinizing it and taking the soul out of it. And the more the digital commons can replace its capitalist counterparts, the harder it will be to find any paid work in areas like software and mainstream media, much less fulfilling work.

In the long run,the democratization of the tools of digital production and the extremely low costs of “mass producing” digital products means that we will be getting nearly everything that makes up the knowledge economy for free. So we may see an economy in the rich world that swings back towards physical goods and physical services. Modern mass production obviously can’t absorb many of those who will be displaced by the digital commons, so we will have to find new ways of getting by. Crawford’s hoped-for craft renaissance may part of that. Learning to use less stuff may be another part. Alternatively, we might see massive concentration of wealth in those companies that make most of our food and our physical stuff (and then possibly reforms to the political economy to redistribute much of that wealth). As long as people can meet their basic needs in the future economy (up to and including rich access to the digital commons), LOLcats–and everything else they symbolize for Shirky–could go a long way toward displacing the consumer culture need for limitless economic growth.

It’s pretty hard to imagine what changes are being sown by the rising digital commons, but I imagine Shirky has some good ideas.

The most insane bit of U.S. copyright law?


I knew about many insanities in U.S. copyright law, but I just came across something that is so absurd and unjust it makes me queasy.

My dad is a professional musician; he plays blues and jazz and original piano music, and has made five records. For professional musicians outside of pop music (and often in pop as well), copyright law is already simply a burden to the point that it is almost universally ignored. Gigging blues and jazz musicians have long used “fake books“, unauthorized charts of the melodies, lyrics and chord structure of jazz standards. No one is worried about other musicians infringing on their copyrights, because jazz and blues (among other genres) are rooted in a culture of borrowing and adaptation. It’s inimical to creativity to draw sharp lines between what can and can’t be borrowed or adapted, and indeed in academic jazz programs one learns to improvise by practicing the great “licks” on classic recordings.

But my dad, being the upright citizen that he is, has stuck with original compositions and reinterpretations of public domain classics on his albums. One classic he put on a 2004 album is “Love in Vain Blues”, a Robert Johnson tune that was first recorded in 1937. Johnson died in 1938, and the original recording was published on vinyl phonograph in 1938 or 1939 (without a copyright notice) and not renewed after the then-standard 28-year copyright term had ended.

But as the result of a series of utterly insane laws and court decisions, it turns out that the song may be under copyright through 2047. Today, issuing as sound recording is considered publication. But according to the 2000 decision in ABKCO v. LaVere, sound recordings published before 1978 don’t count as publication. So despite the publication, re-publication, and widespread adaptation of Johnson’s “Love in Vain”, it was never “published” before 1978 because there was no sheet music. And because it was created earlier but “published” first between 1978 and 1989, the crazy rules go into effect. (ABKCO is the record label for which The Rolling Stones recorded some Robert Johnson songs; LaVere is the man who in 1974 tracked down Johnson’s surviving heir and made a deal to pursue royalties for Johnson’s music in exchange for half the takings.)

Here’s a great article on the Robert Johnson copyrights: “Borrowing the Blues: Copyright and the Contexts of Robert Johnson“, by Olufunmilayo Arewa.

**UDATE**

Here’s another excellent article, arguing “that ABKCO, as well as the 1997 amendment to the Copyright Act that precipitated ABKCO, are legal anomalies that frustrate the intent of the Constitution.”

I just talked to my dad about it. He says “bring it on”. You can hear his version of “Love in Vain” at thesixtone, and on Wikipedia as soon as I transcode it. It’s pretty clear to anyone who a) knows how blues works, and b) knows anything about Robert Johnson and the lack of documentation about whether he even composed any particular song attributed to him, that there’s no basis for copyright claims on this stuff.

Database right and the NPG threat

The National Portrait Gallery’s legal threat against Wikimedian Derrick Coetzee alleges four things:

  1. Copyright infringement
  2. Database right infringement
  3. Unlawful circumvention of technical measures
  4. Breach of contract

The copyright issue, of course, is the center of the dispute. UK law is unsettled on whether mechanical reproduction of a public domain work is eligible for copyright.

IANAL, but breach of contract and unlawful circumvention both seem moot if there is no copyright infringement. A bit of text at the bottom of page (with no mechanism for the user to acknowledge or refuse) setting restrictive use terms for something that is public domain wouldn’t hold much weight. Likewise, even apart from the fact that Zoomify is not a security measure and arguably was not “circumvented”, if the images are public domain then simply collecting and stitching together tiles from those images (whether automatically or by hand) is perfectly legitimate.

Database right, therefore, is the only thing does not turn on whether ‘sweat of the brow’ copyrights hold up. The law here seems vague, but again, IANAL. The key question is what constitutes a “substantial part” of the contents of the NPG’s database. If the paintings themselves are public domain, then the mere unorganized collection of them ought not infringe on the database right, but depending on how much metadata and categorization comes from the same database, porting images to Wikimedia Commons might cross the line. For the images at hand, it looks like the amount of metadata is modest: subject, author, date, and author’s date of death. The NPG database contains significantly more information: medium, size, provenance, and other contextual information, as well as links to related works and people. It is also possible that Coetzee’s actions fall under the “exceptions to database right“:

(1) Database right in a database which has been made available to the public in any manner is not infringed by fair dealing with a substantial part of its contents if –

Self-preservation and the National Portrait Gallery’s dispute with the Wikimedia community

Running an organization is difficult in and of itself, no matter what its goals. Every transaction it undertakes–every contract, every agreement, every meeting–requires it to expend some limited resource: time, attention, or money. Because of these transaction costs, some sources of value are too costly to take advantage of. As a result, no institution can put all its energies into pursuing its mission; it must expend considerable effort on maintaining discipline and structure, simply to keep itself viable. Self-preservation of the institution becomes job number one, while its stated goal is relegated to job number two or lower, no matter what the mission statement says. The problems inherent in managing these transaction costs are one of the basic constraints shaping institutions of all kinds.

From: Clay Shirky, Here Comes Everybody: The Power of Organizing Without Organizations, pp. 29-30 (my emphasis)

Shirky’s book is about “organizing without organizations”, a key example of which is the Wikimedia community (as distinct from the Wikimedia Foundation). The Wikimedia community can accomplish a lot of big projects–making knowledge and information and cultural heritage accessible and free–that traditional organizations would find far too expensive. And that paragraph from Shirky explains the root of the tension between the Wikimedia community and many traditional organizations with seemingly compatible goals–organizations such as the National Portrait Gallery in London, which sent a legal threat to Wikimedian Derrick Coetzee this week.

The NPG has a laudable mission and aims: “to promote through the medium of portraits the appreciation and understanding of the men and women who have made and are making British history and culture, and … to promote the appreciation and understanding of portraiture in all media”, and “to bring history to life through its extensive display, exhibition, research, learning, outreach, publishing and digital programmes.”

But in pursuing self-preservation first and foremost, the gallery asks a high price for its services of digitizing and making available the works it keeps: to fund the digitization of its collections and other institutional activities, the NPG would claim copyright on all the digital records it produces and prevent access to others who would make free digital copies. As one Wikipedian put it, the NPG is “trying to ‘Dred Scott‘ works already escaped into PD ‘back south’ into Copyright Protected dominion”.

If the choice is between a) waiting to digitize these public domain works until costs are lower or more funding is available, or b) diminishing the public domain and emboldening others who would do the same, then I’ll choose to wait.

LOLstuff

I’ve been shopping on eBay lately for some original Harry Whittier Frees kitten photos. I have a feeling they might be very valuable some day (not that I would ever want to sell them if I do get any), and I can think of no greater service to Wikipedia than scanning and touching up a proto-lolcat (or a whole set) for featured picture status.

In lieu of a long post about the virtues and great significance of lolcats, allow me to share some LOLstuff I’ve found worthwhile:

Libraries and copyfraud

For the last week, I’ve been exchanging emails with curators at the Huntington Library about their use policies for digital images. For the Darwin Day 2009 Main Page effort on Wikipedia, I’ve been putting together a list of portraits of Darwin. Although a number of websites have significant collections of Darwin images, there isn’t any single comprehensive collection. One interesting shot I came across is an 1881 photograph, possibly the last one before Darwin’s death, that was allegedly “rediscovered” in the mid-1990s when a copy was donated to the Huntington. Press releases and exhibition descriptions invite people to contact the Huntington to request images, so I requested the Darwin photo. The response I got was typical of how libraries and archives deal with digital copies of rare public domain material.

The Huntington quoted distribution fees for the digital files (different sizes, different prices), and also asked for specific descriptions of how the image would be used, so that the library could give explicit permission for each use. Had I wanted to use it for more than just publicity (e.g., in a publication) more fees would apply. Apparently the curators were not used to the kind of response they got back from me: I politely but forcefully called them out for abusing the public domain and called their policy of attempting to exert copyright control over a public domain image “unconscionable”.

In the exchange that followed, I tried to explain why the library has neither the moral nor legal right to pretend authority over the image (although, I pointed out, charging fees for distribution is fine, even if their fees are pretty steep). A Curatorial Assistant, and then a Curator, tried to explain to me that the Huntington actually has generous lending policies (you don’t “lend” a PD digital image, I replied), that while the original is PD, using the digital file is “fair use” that library has the right to enforce (fair use, by definition, only applies to copyrighted works, I replied), that having the physical copy entails the right to grant, or not, permission to use reproductions (see Bridgeman v. Corel, I replied), that other libraries and museums do the same thing (that doesn’t make it right, I replied), that big corporations might use it without giving the library a cut if they didn’t claim rights (nevertheless, claiming such rights is called copyfraud and it’s a crime, I replied), and finally that I should contact the Yale libraries and museums and see if they do things any differently (a return to the earlier “everyone else does it” argument with a pinch of ad hominem for good measure, to which I see no point in replying).

Unfortunately, the Curator is right that copyfraud is standard operating procedure for libraries and archives. Still, I think it’s productive to point out the problem each time one encounters it; sooner or later, these institutions will start to get with the program.

As an aside, the copyright status of this image is rather convoluted. The original is from 1881. The photographer, Herbert Rose Barraud, died in 1896. The version shown here (originally; now lost) is a postcard from 1908 or soon after, making it unquestionably public domain. It comes from the delightful site Darwiniana, a catalog of the reproductions and reinterpretations of Darwin’s image that proliferated in the wake of his spreading fame. Apparently, when the image was “rediscovered” in a donation to the Huntington, they thought it had never been published and was one of but two copies; a short article about the photograph appeared in Scientific American in 1995. Had it actually never been published until then, it would arguably be under copyright until 2047 because of the awful Copyright Act of 1976. I say “arguably” because of the vague definition of “publish” and the rules for copyright transfer (“transfer of ownership of any material object that embodies a protected work does not of itself convey any rights in the copyright”) combined with the fact that another copy exists would seem to indicate that, at the very least, the Huntington has no place claming copyright. Paradoxically, publishing it for the first time in 1995 would have extended the copyright to 2047 but would have made the Huntington and/or Scientific American into violators of the copyright of whoever actually owned it (which would likely be indeterminable). But if it had remained unpublished, it would be public domain. I’m still unclear about whether it would have been public domain before 2002, when the perpetual copyright window of the 1976 law closed.

UPDATE – My thanks to the others who’ve linked to and discussed this post:

Creative Commons on whitehouse.gov

The Obama transition team released most of its images and text under Creative Commons Attribution 3.0 License. Now this has carried over to the White House as well. Material produced by the federal government, of course, is public domain. But according to the copyright page on the new whitehouse.gov:

Except where otherwise noted, third-party content on this site is licensed under a Creative Commons Attribution 3.0 License. Visitors to this website agree to grant a non-exclusive, irrevocable, royalty-free license to the rest of the world for their submissions to Whitehouse.gov under the Creative Commons Attribution 3.0 License.

Such an endorsement can only be a good thing for the free culture movement.