The intrepid Dan Jones has taken the bait.

 

Brian Urlacher rushes the President. A Remix by Dan Jones.

 

Obama goes deep at Soldier Field in Chicago during the recent NATO summit.

While checking out the White House photo stream on Flickr recently I noticed some confusing inconsistencies in the licensing terms that illustrate (TK – FIX: competing institutional logics at work in copyright, remix, public relations within the state, and the public nature of government resources).

If you look at any photo uploaded by the White House account (such as the one of the President, above) , you can see that Flickr has enabled a special “United States Government Work” license. When you click through to read the license terms on USA.gov, here’s the text that shows up (emphasis added):

A United States government work is prepared by an officer or employee of the United States government as part of that person’s official duties. It is not subject to copyright in the United States and there are no copyright restrictions on reproduction, derivative works, distribution, performance, or display of the work. Anyone may, without restriction under U.S. copyright laws: reproduce the work in print or digital form; create derivative works; perform the work publicly; display the work; distribute copies or digitally transfer the work to the public by sale or other transfer of ownership, or by rental, lease, or lending.

Now, that’s all well and good, except that directly underneath every Flickr photo, the staffers who maintain the White House account have also include the following disclaimer (again, the emphasis is mine):

This official White House photograph is being made available only for publication by news organizations and/or for personal use printing by the subject(s) of the photograph. The photograph may not be manipulated in any way and may not be used in commercial or political materials, advertisements, emails, products, promotions that in any way suggests approval or endorsement of the President, the First Family, or the White House.

At first I thought I must have misread one of the two texts. How could the innocuous looking disclaimer pasted beneath every uploaded photo contradict the licensing terms so directly? The seemingly ad-hoc notice on the Flickr page expressly prohibits any “manipulation” of the images, whereas the government works license text on USA.gov makes equally clear allowances for the creation of derivative works.

I may not be a lawyer, but it didn’t seem that such a glaring contradiction made sense – even within the twisted logic of U.S. Intellectual Property law.

A little bit of asking around on Berkman Center email lists led to two suggested interpretations (which I will probably mangle since I do not fully understand the legal nuances involved). The first was that the disclaimer text was attempting to assert a contractual claim to which I, or anyone who viewed or downloaded a photo from the White House Flickr stream, implicitly consented, independent of the particular copyright terms attached to government works.

The alternative argument was that the contradiction might have resulted from White House public relations staff attempting to assert control over the images without fully understanding the legal implications of their words.

No matter which version is more accurate (and they may both be partially true), the bottom line is that I’m not sure it’s a good idea to paste Brian Urlacher into the picture with President Obama (despite the fact that it would look pretty awesome).

Brian Urlacher in a Chicago photoshoot. Pavel Trebukov (cc-by-nc-sa)

I am curious to hear what other lawyers and non-lawyers think of this. Independent of what legal reasoning anybody finds convincing, I consider the fact that the White House releases these uncopyrightable photos in an online venue like Flickr to imply that the images are there to be downloaded, recontextualized, and remixed. As a result, I would prefer to see the White House remove the disclaimer that contradicts this intuitive interpretation that also happens to be consistent with the spirit of the government works license.

British Library by Steve Cadman (2007) CC-BY-SA

As in just about all the coverage I’ve seen of the Google Books deal with the Author’s Guild,
Friday’s NY Times story raises the familiar specter of Google-as-monopolist. This continues the longer-term trend of tarring the Mountain View, CA based firm with the same brush as it’s older, bigger, and more widely-distrusted rival from Redmond, WA. I’d like to point out a problem with this storyline that stems from the nature of the particular terms of the agreement.

In my mind, the nastiest and most inexplicable aspect of this agreement is not the bare fact that Google is about to buy the rights to a massive proportion of the world’s books. That has been a long time coming and is not a surprise. As many have pointed out, it could, in principle, lead to price manipulations when Google turns around to sell access back to libraries. However, I suspect we won’t see anything like that. Google’s lawyers aren’t stupid – they know that the Justice Department will be hot on their trail as soon as they get the faintest whiff of something like this. They will not want to let this happen if they can help it.

No, as I understand it, the truly nefarious part of the agreement preserves Google’s right to pay the same rate for licenses that publishers might offer to a hypothetical Google competitor in the future. This means that Google has effectively cornered the market for buying digital books – putting it in a position to shape the market to its liking in a way that looks much less evil to consumers.

The likely outcome is that buyers of access to Google Books won’t necessarily pay a premium price as they would with a typical monopolist. Instead, it is the organizations that sell rights to the books to Google in the first place who will be paid less than they would in a more competitive retail market.

Back in the 1930′s, the industrial economist Joan Robinson termed this kind of market failure a “monopsony.” The ideal typical form of monopsony arises in situations where the market for a particular good only has one buyer. This monopsonistic buyer is able to manipulate prices in much the same way that a monopolistic vendor would. The result is a market where the pricing mechanism fails to reflect supply and demand, perpetuating distortions and the breakdown of all the nice side effects that come along with a working market such as quality control, incentives to innovate, and adequate compensation for the producers of the goods in question.

Monopsony makes for less exciting headlines because it does not threaten consumers. Monopsonistic retailers slowly suck profits from their suppliers, forcing them to accede to their demands through the threat of massive revenue losses. The paradigmatic examle of a monopsonist in recent years has been Wal-Mart. The giant firm gets low prices for consumers by manipulating the prices of vendors (and by systematically undermining the labor market, but that’s another story). As soon as Wal Mart threatens to stop carrying their product, a seller has little bargaining leverage since they cannot afford to lose such a massive customer.

At least one person (who I don’t feel comfortable naming or quoting directly without permission) in the Berkman Center’s cyberlaw clinic assures me that the terms of Google’s agreement with the Author’s Guild are not totally clear on this point. Nevertheless, the fact that such an interpretation is not inconsistent with the text of the agreement should be reason enough to worry anyone who reads, writes, buys, or sells books.

Chris Soghoian describes how he bumped up against Google’s questionable ad-sense trademark enforcement policies.

Soghoian’s story is troubling and it exposes yet another way in which the structure of web traffic has positioned Google as a de-facto arbiter of all kinds of legal speech, political salience, and good taste. More broadly, it demonstrates how key actors and institutions exercise influence in the networked public sphere.

For more on that idea, check out Matthew Hindman’s research. In his new book, The Myth of Digital Democracy, Hindman makes a related argument in a number of different ways, not the least of which is his compelling notion of “Googlearchy.” I disagree with Matt on a number of substantive points, but the significance of his analysis is undeniable. His work complements more established models for thinking about how social structure circumscribes certain kinds of thought and action.

One of the fascinating aspects of the Internet is that powerful forms of social order & status originate in seemingly innocuous expressions of aggregated opinions (e.g. the PageRank algorithm). Hindman’s work takes on the notion that such aggregated opinions are somehow equivalent to a utopian radical democracy or a free market of ideas.

In this sense, his argument parallels the work of economic sociologists, many of whom have analyzed the importance of the “embeddedness” of economic markets. Simply put, the thesis behind the concept of embeddedness is that the sorts of decentralized, disaggregated behaviors that occur in market-like settings are always an extension of the social and cultural contexts in which they occur. It’s a relatively simple idea, but it violates one of the core assumptions of neo-classical economic theory: that markets are a free and accurate expression of individual actors expressing rational preferences for the enhancement of their own wealth and welfare.

Sociologists such as Viviana Zelizer have shown how the economists’ assumptions break down in markets for deeply valued cultural goods such as intimacy and adoption. More recently, a number of scholars (including Marion Fourcade – a professor of mine at Berkeley) have taken up the idea that financial markets are also expressions of (economists’) cultural preferences and not merely an aggregated form of pure rationality.

Considering Hindman’s work and the continuing emergence of experiences like Soghoian’s, I think there’s a case to be made that research on the embeddedness of search technology might be a promising topic. Granted, I don’t know if there are many “neo-classical” information theorists out there that would be willing to defend the straw-man position that search technology serves up knowledge in a pure and rational form.

The landmark settlement between Google and a group of authors & publishers looks like a de-facto victory for Google and those of us with an interest in searchable books online. Other than putting themselves on the right side of history, what’s the upside for the publishers here?

In what might be the first major newspaper editorial ever written in praise of a lawyer, The UK Guardian joined a chorus of voices calling for Stanford law Professor Larry Lessig to play a role in the next U.S. administration.

Superlawyer (geek-tastic photo by ekai, cc-by-nc-sa

Larry Lessig: Superlawyer (geek-tastic photo by ekai, cc-by-nc-sa

Consider the Guardian piece together with Lessig’s own timely op-ed in today’s NYT (following a similar piece in the WSJ two weeks ago) and it’s hard not to wonder if the politicized professor isn’t pursuing a careful game plan.

In both of his articles, Lessig urges bi-partisan action towards reforming the over-reaching intellectual property regulations of the United States. By publishing them now, he also positions himself as an ideal candidate to enact such views when a new President takes office in 2009.

If I’m right, then these high-profile op-eds will be seen as crucial tactical moves in a Lessig bid to become the country’s first cabinet-level “IP Czar.” The position will be mandatory for the next administration as a result of the so-called PRO-IP Act that was signed last week. The act was passed (against President Bush’s wishes) as a result of heavy lobbying on the part of the notorious film and recording industry groups, the MPAA and RIAA.

Even though the two industry groups had their usual agenda of strict rights and tough enforcement in mind when they spurred lawmakers to create the post, no justice could be more poetic than to have the job go to Lessig, a long time critic of the lobby groups’ unbalanced and draconian approach.

I may be exaggerating when I call this a campaign on Lessig’s part as he is already a very well-connected advisor to Barack Obama on IP and technology policy issues and has also been mentioned as a potential CTO in a hypothetical Obama administration. Nevertheless, the articles confirm that if Obama winds up in the White House, I would not be surprised to see Lessig join him.

Twisted logic

October 22, 2008

From the stranger than fiction department:

  • Microsoft decides that the middle of a financial melt-down is a good time to punish Chinese users of unlicensed copies of Windows by turning on some really annoying spy-ware.
  • The folks who use the unlicensed software react virulently to Redmond’s latest (and long-predicted) move in their Quixotic crusade against piracy.

I hope some Linux evangelist somewhere is capitalizing on this opportunity.

I was working on a short article this morning that looks at some of the recent global governance conflicts over Access to Knowledge when I realized that it’s been a while since I’ve heard of new developments in the Anti-Counterfeiting Trade Agreement (ACTA) negotiations.

Ever since Senators Pat Leahy (D, VT) and Arlen Specter (R, PA) voiced their concerns to the USTR and the Australian Department of Foreign Affairs and Trade let on that the future of the agreement might be at risk, my RSS feeds and email lists appear to have gone silent on the issue.

Even the USTR has not had anything to say since this October 10 statement (pdf) issued immediately following the Civil Enforcement negotiations meeting.

The best theory I can come up with (absent any evidence whatsoever) is that the trade representatives and negotiators have been a little busy lately dealing with the trade-related complications of the global financial crisis.

Anybody out there know what the USTR’s been up to these days or have new information about ACTA?

Happy Open Access Day

October 14, 2008

Open Access (OA) FAQ

“Why support OA?” Because there’s nothing exclusive about ideas – we can share them at no cost and still develop business models to make a living. A vibrant knowledge ecology will thrive if we learn not to treat intellectual property regulations like legal cudgels to beat others into submission.

“Why does OA matter?” Because Access to Knowledge – whether in the form of software, academic journal articles, patented medicines, technical designs, or cultural products – will facilitate education, economic development, and equitable wealth distribution throughout the world.

But this is just a blog, you’re not really doing anything about OA: Actually, I use my blog to promote and enact OA principles (for example, check out my creative commons attribution-share-alike license up in the top of the right-hand sidebar). Also, as a graduate student and a researcher, I try to publish in venues that support OA models of distribution and licensing.

Alright, fine. I’ll “get involved,” just spoon-feed me some more information, please! For details about the day go here and here. If you really want to drink from the firehose, I dare you to subscribe to Peter Suber’s blog. If you still want to learn more about the theories and ideas behind OA, read this article by UC Berkeley law professor Amy Kapczynski, Yochai Benkler’s Wealth of Networks (don’t worry, it’s quick!), and Larry Lessig’s Free Culture.

Aaron, you rampaging nerd, I don’t read – just point me somewhere I can give money! Okay, fine. Support and get involved in the activities of the following organizations: Knowledge Ecology International, Public Knowledge, Universities Allied for Essential Medicines, Public Library of Science, and Essental Action (esp. their Access to Medicines project).

Anything else? Don’t forget to vote this November and please tip your waiter.

Keeping with the Open Access theme of the day, Steve Schultze is talking about Open Access to Govt docs and the law today at the Berkman Center luncheon series.

At the moment, Steve’s giving us a guided tour of the ironically named PACER (Public Access to Court Electronic Records) system that federal and appelate courts use to archive their documents. The site has a search engine that charges you per query (!) and per page.

E-government in Action! (photo by Doctor John Smith cc-by-nc)

America's e-government in action! (photo by Doctor John Smith cc-by-nc)

It’s an absurdity given the fact that these documents are not copyrightable and that the intention of the folks who set this up was to provide legitimate public and open access to court documents. A classic case of high-minded goals and well-meaning government programs that need an overhaul.

As Steve points out, the courts face a serious challenge of cost recovery (all of this digitization and database archiving costs money), but in trying to resolve that issue with PACER, the judiciary has introduced obtuse barriers to entry and facilitated the rise of de-facto donwstream monopolies (folks re-archive and sell access to PACER documents on the web).

There’s got to be a way out, here. In the meantime, though, I’m going to sit back and enjoy Steve’s bar charts demonstrating how the cost recovery model currently employed by the federal judiciary is pretty much a crock.

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