June 4, 2012
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).
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.
October 14, 2008
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.
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.
October 14, 2008
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.
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.
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 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.
September 15, 2008
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.