June 4, 2008

Incipient Intellectual Property

Filed under: Internet, law, music — wseltzer @ 3:35 pm

We talk a lot about the ways intellectual property stifles innovation once it attaches — the patent thickets created when dozens of companies claim rights to parts of the same widget-process, the hindrance to free expression and commentary posed by copyright clams to political imagery or culture — but lately, I’ve been wondering about the burdens of incipient intellectual property: when the vague promise of some potential future IP right causes people to share less and develop less value than optimal.

Incipient intellectual property is the false promise that “you might be the next big star,” that keeps some artists from appreciating the intermediate audience-building possibilities of Creative Commons licenses. It’s the remote prospect of patent that keeps scientists from publishing early-stage findings or sharing with potential collaborators lest they statutorily bar themselves from patenting later.

Does the possibility of outsize exclusive benefits from the IP lottery blind people to the much greater shared benefits of openness?

May 15, 2008

Sony BMG Sends YouTube Ads Instead of Takedown

Filed under: Chilling Effects, copyright, music — wseltzer @ 7:08 am

As reported on Valleywag and picked up by Slashdot, Sony BMG has been testing an alternative to copyright takedowns of unauthorized music videos on YouTube: inserting a link to the band’s official page instead.

An eagle-eyed Valleywag tipster with a taste for Modest Mouse spotted an interesting new feature on YouTube. Uploads of music videos from the band by non-official sources now carry a link reading “Contains content from Sony BMG,” which leads users to the official Modest Mouse page on the site.

Commenter Mr. E discovers that the “claim” link is added automatically, by Google’s YouTube Video ID Tool, when a matching video is spotted on upload. Emphasis added:

Dear YouTube Member:

Sony/BMG has claimed some or all visual content in your video Float On. This claim was made as part of the YouTube Content Identification program.

Your video is still live because Sony/BMG has authorized the use of this content on YouTube. As long as Sony/BMG has a claim on your video, they will receive public statistics about your video, such as number of views. Viewers may also see advertising on your video’s page.

Sony/BMG claimed this content as a part of the YouTube Content Identification program. YouTube allows partners to review YouTube videos for content to which they own the rights. Partners may use our automated video / audio matching system to identify their content, or they may manually review videos.

Sincerely,
The YouTube Content Identification Team

This sounds like a promising development, a less intrusive means of copyright policing than the flat DMCA takedown. Might Sony be recognizing that fan appreciation is a good thing, to be nurtured into compensation rather than squelched with takedowns? As of Thursday morning, the Modest Mouse channel has been viewed 77,808 times, and this particular “Float On” video, with associated Sony ads, more than one million times. I can only hope the more nuanced approach succeeds without becoming too intrusive to the viewers or the host site.

January 29, 2008

Craft and Copyright

Filed under: copyright, law, music — wseltzer @ 12:05 pm

I just got the latest issue of Craft Magazine, which, along with fun projects like “Hand-Sewn Free-Range Monsters,” contains my column on Craft and Copyright. I make the case that crafters should seek balanced copyright, since they find themselves on both sides of the aisle:

Your artistic works are copyrighted upon creation, as soon as they’re “fixed in a tangible medium of expression.” If you do nothing further, the law forbids others from copying that goes beyond fair use. Readers can’t take the patten and detailed descriptions you’ve posted and copy them verbatim, but can they make and sell the craft described? That depends on the copyright in the crafted object: a richly patterned sweater’s surface design could be copyright-protected, but its shape would not. Further, if you’ve published a pattern, readers probably get an implied license at least to make the craft from it. That means too, that when you’re on the other side, using someone else’s patterns, you’re free to take uncopyrightable methods and “useful articles,” but limited in taking full-blown expression.

Part two of “Crafting Laws” will follow in the next issue.

January 11, 2008

Mukurtu Contextual Archiving: digital “restrictions” done right

Filed under: law, music — wseltzer @ 10:37 am

I’m accustomed to thinking of digital restrictions in the U.S. intellectual property context. We’re told that DRM use restrictions are trade-offs for getting material in digital form, but generally, the trade is a bad one for the public.

The Mukurtu Wumpurrarni-kari archive Kimberly Christen helped the Australian Warumungu community in Tennant Creek to construct puts digital restrictions in a very different light.

As Kim described when I met her at a conference over the summer, the Warumungu have a set of protocols around objects and representations of people that restrict access to physical objects and photographs. Only elders may see or authorize viewing of sacred objects; other objects may be restricted by family or gender. Images of the deceased shouldn’t be viewed, and photographs are often physically effaced. When the Warumungu archive objects or images, they want to implement the same sort of restrictions.

They wanted an archive that was built around Warumungu protocols for accessing and distributing materials (in many forms). One of the first mandates was that everyone had to have a password so that they could only see materials that they were meant to see based on their family/country/community status.

Kim’s response was to help construct a digital archive with access controls — ACLs based not on copyright but on the various elements of a person’s community status. Your identity sets your view-port into the archive; the computer will show only items you have permission to see. The community can thus give objects context in the online archive similar to that which situates them offline. As an object’s status changes, the database can be updated to reflect new rights or restrictions.

Yet the Mukurtu’s form of “DRM” is fragile. Users are encouraged to print images or burn CDs, which have no controls built-in.

People can also print images or burn CDs and thus allow the images to circulate more widely to others who live on outstations or in other areas. In fact, one of the top priorities in Mukurtu’s development was that it needed to allow people to take things with them, printing and burning were necessary to ensure circulation of the materials.

Unlike copyright-DRM systems, which fall back to the most restrictive state when exporting or communicating with “unsigned” devices (such as blocking all copying and breaking or lowering playback resolution on high-definition monitors), this one defaults to granting access. It’s up to the people using the system to determine how new and unknown situations should be handled.

Because the Murkurtu protocol-restrictions support community norms, rather than oppose them, the system can trust its users to take objects with them. If a member of the community chooses to show a picture to someone the machine would not have, his or her interpretation prevails — the machine doesn’t presume to capture or trump the nuance of the social protocol. Social protocols can be reviewed or broken, and so the human choice to comply gives them strength as community ties.

One of the lessons of the recording industry lawsuits and growing shift from DRM’d music is that community norms don’t support current copyright law. Rather than fight copyright norms with bad code, we should learn from the Warumungu and build code (and law) to support social practice.

Further good news: Kim says she and Craig Dietrich will be releasing the archive’s code as Free Software.

November 15, 2007

Masterclass: Ben Heppner’s geek cred

Filed under: fccboston08, music — wseltzer @ 9:10 pm

One of the great things about teaching at Northeastern is the proximity to Boston’s cultural scene. The Museum of Fine Arts is just across the from the Law School; Symphony Hall is just down the street; and conservatories are all around.

This afternoon I was tipped off to a masterclass with heldentenor Ben Heppner at New England Conservatory, so along with no more than 100 others, I got to hear him coaching four young singers and annotating with a bit of singing of his own. The students were superb, and yet Heppner was able to inspire each of them to sing better. I could hear the effect of the changes he suggested, and of course the thrill of getting personalized advice from a reigning master must have helped.

Amid lots of great signing, though, the best moment was discovering Heppner’s geek cred. When prompting a singer to keep the energy up through a sustained note, he suggested “think of renewing a lease,” as in DHCP lease, “for the techies out there.”

Now to see if I can scavenge a ticket to hear his Mahler Monday night…

September 5, 2007

Victory for the Public Domain in Golan v. Ashcroft

Filed under: commons, copyright, music — wseltzer @ 4:44 pm

Via Larry Lessig comes great news in Golan v. Ashcroft: the 10th Circuit held that “plaintiffs have shown sufficient free expression interests in works removed from the public domain to require First Amendment scrutiny of &sec; 514 [of the Copyright Act, which granted new copyrights to some foreign works in the public domain here in the United States].” It ruled for plaintiff composers, performers, and publishers of public domain works and sent the case back to district court.

The 10th Cir. broadened the one ray of light in Eldred, the suggestion that First Amendment review is warranted where Congress has “altered the traditional contours of copyright protection.” Re-copyrighting of works from the public domain works just such an alteration, the Golan court held. Traditionally, “works in the public domain stay there.”

Those building on public domain works should be entitled to assume the works will stay public.

June 15, 2007

From the iSummit: Wrecking a Film

Filed under: music — Wendy @ 4:34 am

“We knew we were a real film when we had pirates.” Samuli Torssonen, Star Wreck Studios, on the appearance and sale in Russia and China of copies of the free, CC’d online film “Star Wreck: In the Pirkinning.” The film was first posted online, for free, and downloaded 5 million times, before winning a commercial contract for DVD sale.

Stephen Lee adds to the community story. The film itself had more than 300 participants in the credits; it has been fan-subtitled in 30 languages, including Klingon.

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