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.

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.

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.

Ugh. I’ve been ranting about this idea for a while, but now it’s actually come to pass. Thank the folks at RIAA, MPAA, the entertainment industry lobbyists, and their hired guns friends in Congress (ahem, Conyers, Berman, Leahy, Specter, et al) for this criminally inefficient use of government funds during a time of economic crisis. Even George Bush and the Department of Justice tried to avoid passing this one, but to no avail.

Gizmodo and CNet have the story.

Art Brodsky, Communications Director of Public Knowledge has the understated quote: “It would’ve been nice to have something to benefit the public and artists instead of big media companies.”

Sigh. Dream on.

intellectual property, da? (image from Gizmodo)

intellectual property, da? (image from Gizmodo)

Of Lessig and Muxtape

October 14, 2008

Larry Lessig’s WSJ Op-ed “In Defense of Piracy” is quickly making the rounds of inboxes via a few email lists I’m on, suggesting that re-posting it here will not be news to anybody.

What I thought I’d mention in conjunction with Lessig’s piece however, is a link and some thoughts on yet another sad chapter in the entertainment industry’s long brutal fight against creativity and non-traditional business models online.

Former Berkman Intern Zach McCune first brought Muxtape – a site dedicated to facilitate music playlist sharing – to my attention sometime during the summer.

An undergraduate and the victim of an RIAA file-sharing lawsuit, Zach is a grizzled veteran of the copyright wars. He and I agreed that while Muxtape was a beautiful idea, it was only a matter of time before it got mangled by the legal machinery of the music industry.

The truth has turned out to be somehow more complex and twisted than we had ever imagined.

Muxtape (c) 2008, Muxtape LLC

Muxtape (c) 2008, Muxtape LLC

Muxtape founder Justin Ouellette’s September 25 post to the site breaks down the last few months in some detail. Here are the highlights:

  • “In the end, Muxtape’s legality was moot.”
  • “In May I had my first meeting with a major label, Universal Music Group.”
  • “The gentlemen I met at Universal were incredibly receptive and tactful; I didn’t have to sell them on why Muxtape was good for them, they knew it was cool and just wanted to get paid.”
  • “Things were going well. I spent the next two months talking with investors, designing the next phases of the site itself, and supervising the negotiations.”
  • “The first red flag came in August…the talk shifted to things like guaranteed placement and “marketing opportunities.” I was denied the possibility of releasing a mobile version of Muxtape. My flexibility was being constricted.”
  • “…on August 15th, I received…a complaint from the RIAA.”
  • “…on Monday when I wasn’t able to produce the documentation Amazon wanted (or even get someone from the RIAA on the phone), the servers were shut down and I was locked out of the account.”
  • “…the RIAA moves quite autonomously from their label parents and that the understanding I had with them didn’t necessarily carry over.”
  • “And so I made one of the hardest decisions I’ve ever faced: I walked away from the licensing deals. They had become too complex for a site founded on simplicity, too restrictive and hostile to continue to innovate the way I wanted to.”
  • “Muxtape is relaunching as a service exclusively for bands…”
  • “The new Muxtape will allow bands to upload their own music and offer an embeddable player that works anywhere on the web, in addition to the original muxtape format.”

Ouellete’s experience with Muxtape demonstrates that the actions of the RIAA constitute an egregious, anti-competitive abuse of the American legal system. Perhaps the most troubling aspect of the story is the fact that they effectively shut down Ouellete’s business while several of their constituents were in the process of negotiating with him (indeed, the takedown episode looks like a sorry excuse for a bargaining tactic).

When is congress going to stand up to these goons? At the moment, our elected representatives are too busy passing the PRO-IP act, yet another gift of federal enforcement resources to the content industry (against the wishes of the Department of Justice!) at the same time as the US economy struggles to avoid a free-fall.

More Cowbell?

September 15, 2008

I got a fever and the only prescription is...

I got a fever and the only prescription is...

The possibilities are endless

My personal favorite so far: Yanni with 100% Cowbell and 100% Christopher Walken

Comparably awesome: Tiny Dancer with 52% Cowbell and 92% Walken

Cheers to the folks at echonest, Chris Soghoian, SNL, the Bruce Dickinson, and the DMCA safe harbor provisions.

As of July 1, Spain’s controversial “digital canon” law will impose a tax on any gizmo that can record, copy, or store digital media.

In theory, this is a tax on “piracy” that goes towards supporting artists.

In reality, the cash goes straight to the “collecting societies” that represent artists and collect royalty payments on their behalf. The law apparently makes no provision as to how these societies must distribute this revenue.

The collecting societies’ survival depends on the preservation of restrictive IP regimes and royalty-based business models in creative industries. As a result, they have historically acted to constrain artists’ and users’ ability to opt out of IP-based remuneration schemes.

With the passage of this law they have successfully imposed the cost of their existence on consumers and producers in an entirely separate industry. Not surprisingly, the electronics equipment manufacturers and re-sale firms (not to mention consumer advocacy groups) are furious.

Declining sales across many of the content industries will continue to lead increasingly desperate firms (and their lawyers) to seek ridiculous regulatory interventions like this one. The results are expensive, inefficient legal instruments that will prove even more costly to overhaul as the digital economy continues to evolve.

Instead of more laws like this one, regulators should seek to incentivize alternative business models that capitalize on the network effects of costless digital reproduction. In the case of music, I’m thinking of something along the lines of VODO and other schemes that capitalize on what Doc Searls has called “the volunteer economy“.

If I were a Spanish citizen, investor, or entrepreneur I’d wonder why my elected officials weren’t willing to make a more far-sighted investment in the future of my culture, my technologies, and my economy.

As always, well-informed legal analysis (this time of the AP-Drudge Retort spat) from David Ardia and the folks at the Berkman Center’s Citizen Media Law Project.

(Full disclosure: I work at Berkman, although not in conjunction with the CMLP).

The latest issue of the Cato Institute’s Cato Unbound addresses the Future of Copyright. The lead essay written by Rasmus Fleischer of Piratbyrån, offers some excellent critical points on ACTA.

Here’s an except that is characteristic of his analysis (my emphases):

Copyright enforcement weakens general law enforcement. And it’s expensive. The proposed ACTA treaty would create international legislation turning border guards into copyright police, charged with checking laptops, iPods, and other devices for possibly infringing content, and given the authority to confiscate and destroy equipment without even requiring a complaint from a rights-holder.

It’s characteristic of the dishonesty found in copyright law that the ACTA has been promoted as a treaty aimed to save people from dangerous fake medicine, which has very little to do with issues like “ISP responsibility.” While patents, trademarks, and copyright are significantly different in many respects, copyright industry lobbyists prefer to present their draconian enforcement strategies as a matter of “intellectual property” in general.

The real dispute, once again, is not between proponents and opponents of copyright as a whole. It is between believers and non-believers. Believers in copyright keep dreaming about building a digital simulation of a 20th-century copyright economy, based on scarcity and with distinct limits between broadcasting and unit sales. I don’t believe such a stabilization will ever occur, but I fear that this vision of copyright utopia is triggering an escalation of technology regulations running out of control and ruining civil liberties. Accepting a laissez-faire attitude regarding software development and communication infrastructure can prevent such an escalation.

This argument underscores several reasons why it is completely disingenuous to equate strict IP enforcement with anything resembling a “free market.” Such an equation was an integral part of the Washington Consensus obsession with “strong property rights” and infiltrated the global trade regime with the formation of the WTO and the TRIPS agreement.

It is high time to unbundle reigning notions of property and consider whether digital, informational assets deserve comparable treatment as scarce, physical resources.

Make no mistake: ACTA is an attempt to take corporate welfare for the copyright and trademark industries to a global level. As such, it threatens the wealth, welfare, and stability of the global political economy.

Cheers to Fleischer for providing another clear and articulate statement against ACTA. The question remains, will the USTR, EC, Japan, and the other ACTA negotiating parties listen?

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