Intellectual Property

Bob Stein at if:book has a legal/ethical/tactical question about CC and non-commercial use:

there’s a site [but I’m not going to link to the pesky bugger – JH] that reposts every entry on if:book. they do the same for several other sites, presumably as a way to generate traffic to their site and ultimately to gather clicks on their google supplied ads. if:book entries are posted with a creative commons license which allows reuse with proper attribution but forbids commercial use. surferdiary’s use seems to be thoroughly commercial. some of my colleagues think we should go after them as a way of defending the creative commons concept. would love to know what people think?

If you want to view the splog in question, there’s a link in Bob’s post. (Click here for a wikipedia definition of ‘splog’.) It seems clear splog use cannot possibly be non-commercial. As to whether the if:book folks should care, one commenter writes: “Whether you want to go after this splogger is your choice, but in general I think bloggers should welcome addition exposure and treat it like an advertising opportunity. I don’t think splogs are a good thing, but RSS makes all kinds of syndication possible – legitimate or otherwise…”

I’m curious about a different question: how exactly does this CC license define the ‘commercial purposes’ bit of ‘you may not use this work for commercial purposes’? For example, good old J&B Have A Blog has a sidebar of Amazon links; I do the Amazon associates thing. I make a couple bucks. What makes our site different than a splog is, among other things, that small sums we earn are definitely not the point. But I’m not sure how that could be legally codified. ‘Non-commercial’ doesn’t seem the best way to capture ‘incidentally commercial’, or ‘not PURELY commerical’. No doubt the wise prof. Lessig has considered this, but I don’t know what the answer is. Do you?

In case it isn’t clear what I am asking, I think it’s this: the point of a CC license is to allow people to republish content with certainty that they are legally permitted to do so. What allows a blogger or web-publisher with incidental advertising to KNOW that they are a non-commercial user?

UPDATE: I actually have popped the hood on the license and looked inside. But I’m not sure I understand what the legal thing that ‘not for commercial purposes’ means really MEANS, in practical terms:

You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation. The exchange of the Work for other copyrighted works by means of digital file-sharing or otherwise shall not be considered to be intended for or directed toward commercial advantage or private monetary compensation, provided there is no payment of any monetary compensation in connection with the exchange of copyrighted works.

Amazon associates and googleads provide monetary compensation. On the other hand, there is that ‘primarily intended’ clause. But that’s vague. The point of a license is to give users confidence they are in the clear. Perhaps there need to be test cases, and just haven’t been any yet?

Actually, the problem may be ambiguity: ‘…in any manner that is primarily intended.’ Does that mean the manner in which I make my blog as a whole? Or the manner in which I make an individual link with an embedded Amazon associates ID? Makes a bit of a difference.

Go read about Warner Brothers’ attempt to shut down a non-commercial mashup of Greenday’s “American Idiot” album. Then go listen to it while you still can. All I can say is that there are a lot of very talented people with a lot of time on their hands – amazing stuff.

Today’s Guardian editorial concerns the recent legal case involving Hyperion Records . Hyperion are best know for their wonderful series of Schubert song recordings — Ian Bostridge’s Die schöne Müllerin being a case in point. Their survival is now threatened because the editor of the works of a rather obscure French composer was successful in an action claiming musical copyright in the work . I offer no opinion on the legal merits of the case, though it is claimed that this effectively lowers the threshold on what counts as an original work. Hyperion will probably face small damages, but they must now meet their own and the plaintiff’s enormous legal costs. They are appealing for donations .

Jamie Love has an FT op-ed with an interesting suggestion (behind paywall) about solving the incentive problems for anti-flu drugs and similar.

bq. The proposal is to permit governments to acquire medicines freely for stockpiles from generic suppliers, on the condition that if the medicines were used to treat people, the patent owner would receive royalties. This makes it much cheaper to acquire the stockpiles, but also increases the value of the ­patented invention, as long as there is some probability that the emergency use will occur. The price of medicines is related to their expected benefit. But this assumes a nearly 100 per cent probability that someone will actually use them. In the case of stockpiles, on the other hand, there is often a fairly low probability of use. Indeed, the lower the risk of the emergency, the lower the expected benefit of the stockpile. As long as the prices for the medicines are above marginal costs and the ­patent owner insists on a price related to the price of the drug when used, stockpiles will be small. But if governments could freely obtain stockpiles at marginal costs, with only a liability to remunerate the patent owner in the event of use, the incentives to match costs and benefits will be far more efficient.

bq. The amount of royalties to pay in such a system should be generous for higher income countries and much smaller for countries with poor populations. As noted, this works best when the medicine has a parallel commercial market for non-emergency uses. For those drugs that would only have a market in the case of an emergency, such as an anthrax or small pox vaccine, the liability rule could also be used, but in combination with other incentives, such as the medical innovation prize fund approach now being considered in the US, which provides for large cash rewards for developers of new drugs.

I can’t see any very obvious problems with this suggestion – it seems to provide an excellent means of addressing short term crises while solving the problem of long term incentives. Any disagreement?

(slight revisions following comments).

Noam Scheiber has a brilliant plan.

bq. Our boss, Peter Beinart, has a theory about how to undercut the conservative punditry’s assault on the mainstream media: coopt it. The basic idea is that most of the conservative animus toward the MSM comes from feeling spurned by it. If that’s true, then the easiest way to fix this would be for establishment media institutions to hire lots of bright young conservatives. … I agree. But that George Will column Jason linked to earlier suggests another reason why the mainstream media might want to start hiring conservatives, at least conservative opinion journalists: It would allow conservatives to say and write what they actually think, which is usually both interesting and important. As Ryan Lizza noted last week, many of the conservatives who’ve spoken out against George W. Bush lately–people like Bruce Bartlett and David Frum–have done so at considerable risks to their livelihoods. That’s because the conservative “movement” is incredibly centralized and hierarchical. People who work at conservative think tanks or receive conservative foundation money, even people who work at conservative media outlets, risk having the plug pulled if they deviate too far from the party line.

But then I would say that, wouldn't I. Entertaining as it is to see something like my April 1 squib recycled as a quasi-serious plan of action, it can’t compete with Chris’s experience last year, of being (perhaps unintentionally) directly plagiarized by William Gibson. Now that’s real geek street-cred.

Reader Ben Lancini points me to this piece by John Dvorak, attacking [or rather, confessing to not seeing the point of] the Creative Commons License. This has prompted me to write a post I promised ages ago, in response to Kim Weatherall and Nicholas Gruen. I won’t recapitulate the debate, but just state my own position.
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From yesterday's Guardian :

bq. Civil liberties groups have condemned an arrangement between Microsoft and Chinese authorities to censor the internet.

bq. The American company is helping censors remove “freedom” and “democracy” from the net in China with a software package that prevents bloggers from using these and other politically sensitive words on their websites.

bq. The restrictions, which also include an automated denial of “human rights”, are built into MSN Spaces, a blog service launched in China last month by Shanghai MSN Network Communications Technology, a venture in which Microsoft holds a 50% stake.

bq. Users who try to include such terms in subject lines are warned: “This topic contains forbidden words. Please delete them.”

ViaTimothy Noah at Slate, I learn that the NYT is going to start charging for access to its opinion columns. It’s not clear whether, and how, bloggers will be exempted from this – the NYT provides blog access to the archives (otherwise pay-per-view) through its RSS feeds

Speaking as a reader, I wouldn’t want to pay for the NYT Op-Ed page. The Editorials are worthy, but not very exciting. Of the columnists, only Krugman is consistently excellent, and most of his columns consist of necessary repetition of important truths well-informed readers are aware of, but most commentators are unwilling to harp on for fear of being called “shrill”. But Brad DeLong is equally good, takes a similar line, posts more frequently, and is free. Kristof, like the little girl in the rhyme, is very, very good when he’s good, but that’s not always. And Herbert is steadily good, if sometimes overly earnest. After that, there’s a long tail, with columns more often useful for mockery than for endorsement.

As a blogger, there’s no point in paying for something if you can’t link to it. That’s why the WSJ is so thoroughly marginalised in the blog world. So unless the NYT finds a way around this, they’ll be cutting themselves off from one of the most active parts of the public debate, and missing out on quite a few potential readers.

Fully searchable Google Print is now out and there’s lots of valuable stuff. A fantastic resource!

I’ve been interested for a while in the extra-game markets for items like weapons, spells and so on created in online games. This story involves two Chinese gameplayers who acquired a highly valuable virtual sword. One of them borrowed it and sold it for about $1000. The other player went to the police without result, and eventually confronted his partner, and in the ensuing argument, pulled a knife and stabbed him to death. It’s sad that this happened, but the most interesting aspect for those not directly involved is the question of whether the seller had committed a crime, and if so what. The following discussion is based on very limited knowledge and legal expertise, so feel free to correct me.

Even if this was a real sword, I doubt that the police would have become involved in the dispute because it was jointly owned, so only a civil action would have been available.

More generally, if the law does become involved in this kind of dispute, it’s unlikely that ordinary property law is the right place to look. Even if your virtual castle may look like genuine, it isn’t real estate. It’s the product of a contract between you and the game’s operators. In many cases, that contract forbids outside resale of items, so your rights are pretty limited. But even in a game like Entropia which encourages such things, your rights over virtual items are defined within a set of rules created by the game operators. If, for example, they arbitrarily confiscated virtual land for which you had paid, your remedy, if any, would be under contract law or (in particularly outrageous cases) the game operators might be prosecuted for fraud.

Of course, all this could change. There’s nothing to stop governments creating new categories of virtual/intellectual property. But, as with intellectual property in general, intuitions based on standard (rival, excludable) private goods aren’t likely to provide a good basis for thinking about such things[1].

There’s more discussion at TerraNova where this kind of issue has been debated before.

fn1. Despite what the RIAA says, copying a CD is not the same as stealing a car, for the obvious reason that no-one has been deprived of the data on the CD.

This is my second report on last week’s Creative Commons conference. Lessig’s closing lecture was given in the Banco court of the Queensland Supreme Court (very plush – those lawyers don’t stint themselves) and was focused on traditional copyright issues . For Brisbane readers, an interesting titbit was that we haven’t seen OUTFOXED: Rupert Murdoch’s War on Journalism because neither the Courier-Mail nor the national daily, the Australian, (both Murdoch-owned) would carry more than minimal ads for it. One of the costs of being in a one-newspaper town.

The main point of the lecture was a historical survey of the relentless extension of copyright, along with some discussions of a failed attempt to stop this in the case of Eldred vs Ashcroft. This case is notable for the fact that, as has happened before, the economics profession almost unanimously supported the losing side. As Lessig argued, copyright has been extended in length, scope and force to the extent that nowadays virtually everything is copyright, virtually forever.

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Earlier this week, I attended a Creative Commons conference at QUT in Brisbane, including the launch of the Creative Commons licence for Australia. The main speaker was Larry Lessig, who gave two papers and joined a panel discussion as well. Lessig is a great speaker with really effective presentations, a point on which I hope to post more later. There was a lot of food for thought, and I’ll start with the opening presentations.

In this talk, the central idea was remix, taking bits and pieces from the existing culture and recombining them to produce something new. My summary of the core argument

1. text is the past, video and audio are the future
2. the set of rights surrounding text has always allowed for a lot of remix, including direct copying for fair use, parody and so on
3. because of digital rights management technology and strong IP, the current trend is to suppress remix for video and audio, thereby depriving our culture of one of its historic sources of validity

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Jacob Heilbrunn has a conversation with Daniel Bell in the LA Times, about the problems that both parties have with imposing any sorts of cultural limits on the free markets.

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Another new blog that deserves some attention – IP-Watch, monitoring “the behind the scenes dynamics” of intellectual property. The politics of intellectual property is exceptionally murky and non-transparent – dubious deals done at the international level which are then presented as _faits accomplis_ to national publics. IP-Watch starts with a particularly good account of the shenanigans over the recent broadcasting negotiations. One worth visiting regularly.

Update: via BoingBoing, Jamie Boyle has written a nice polemic for the FT on how intellectual property policy is made.