A simple desultory philippic about copyright

[Update: Joi has clarified what he meant, both in the comments here as well as on his blog. Do make sure you read the comments and his post. We learn through openness and transparency in our dialogues.]

I’m a fan of Joi Ito. I’m a fan of Creative Commons.

But I am not a fan of DRM. I think path pollution is a very big mistake, that it is next-generation EAI, that it is about as necessary and about as useful as region coding on a DVD.

So I had mixed feelings last night when I watched Joi speak at DLD09, as he talked about Creative Commons and RDFa and HTML5. Feelings so mixed that I decided to sleep on them rather than burst into words. [I wasn’t actually in Munich this time. The videos were uploaded in record time, and I found out about Joi’s talk via Glyn Moody, who tweeted briefly about it and linked to his blog.]

Joi’s a great guy and a great speaker. Three of the points he made really spoke to me:

  • that the old media model was about broadcast and consumption, while the new media model needs to be about participation and expression
  • that a critical part of the old value chain was about distribution, while the equivalent in the new value chain is about discovery
  • that we need to focus on where the money has moved, where people are spending the money

All this is great. But then, when he laid out this grand plan where every digital object on the web is associated with embedded digital rights, I began to wonder. A plan where the software becomes Big Brother and Nanny State and a few other things rolled into one, where the software within the browser tells you what you can do and what you can’t.

Creating artificial scarcity can never be the answer. [I’ve been Norman Mailered, Maxwell Taylored, Doc Searlsed and Bob Frankstoned, I’ve been Rolling Stoned and Beatled till I’m blind. And I’ve heard the truth from Lenny Bruce….] with apologies to Paul Simon and Art Garfunkel.

You see, I’m of the belief that every artificial scarcity will be met with an equal and opposite artificial abundance.

As I’ve written before, there’s a big Because Effect coming for music. Where musicians make money because of their music rather than with their music. When transmission and delivery costs drop to nothing, music becomes abundant. Abundant things are easy to find, so discovery is also easy. So why try and solve a problem which doesn’t exist? Why try and make something abundant scarce, so that discovery becomes an issue again?

When things are made artificially scarce, they get hacked. When movies are DRMed, the DRM gets stripped. When there is an attempt to block or shape BitTorrent, BitTorrent responds in kind. One could argue that piracy in films is largely caused by the stupidity of having different release windows for films in different countries. A separation in time that is no longer necessary and often insulting. At least now we don’t have DRM in music any more.

Any attempt to pre-criminalise large swathes of people is bound to end in tears. Nobody wants to steal money from the mouths of artists, particularly struggling artists. But we don’t need Mickey Mouse Acts either.

Okay, enough desultory philippic. Why am I concerned about what Joi said? Simple. You cannot legislate for culture, particularly for satire and humour.

Joi showed a simplified “open model” stack, consisting of Ethernet, TCP/IP, World Wide Web and Creative Commons. Creative Commons was to represent the cultural aspect of the stack. And this is, for me at least, part of where the problem lies.

If we do what Joi suggests, would Marcel Duchamp have been able to moustachio the Mona Lisa? I suspect not. Would Lewis Carroll have been able to parody Robert Southey, or Ogden Nash Joyce Kilmer? I suspect not.

If you leave it to the author of the piece, whatever the piece is, the chances are that no parodies are possible. That goes further when it comes to creating something new as a remix and sample of other things. Life is complicated enough right now, when it comes to determining what is a reasonable derivative work and what is not. I can only assume it will get a whole lot more complicated when the judge of derivative works and acceptable use is a piece of software.

I know it sounds extreme, but the vision suggested by Joi really worries me. Software in a browser telling me whether something is fair use or not. To me this is the equivalent of a hob in a kitchen telling me what I can or can’t put in to the mix when making a ragu sauce.

The “default public” approach in stuff like Flickr has produced magical results, with a great deal of sharing, so I can see where the Creative Commons people are going. With the right defaults, a lot of stuff that is currently complicated will become less so. That I agree. And the principle of seeking to reduce friction in the process of creating digital objects is a good one, something to be lauded. But the process suggested, where software acts as judge and jury, that I am not happy with. And one part of the process, where the author can make sure that satire or parody is impossible, that part really worries me. Not just for creative artists, but as much for social and political protest.

I could be wrong. I am happy to learn. Do comment and help me learn. All I have done is lay out something about what concerns me and why.

As I said, I am a fan of Joi Ito. I am a fan of Creative Commons. I am just not a fan of what has been suggested. Intuitively and instinctively not a fan.

21 thoughts on “A simple desultory philippic about copyright”

  1. I think Creative Commons is about creating a “safe” space for media remix culture to flourish. It’s an attempt to create an echo-system of what’s happened in free software/open source.

    Great artists can always bend the rules, and wiggle out of the straightjacket of worldwide intellectual property laws. But I don’t see how more mundane stuff such as the semantic web can really take off without a lot of data providers adopting CC-BY licensing.

  2. You may be right, Jim. As I said, I’m a fan of CC. But my gut feel says this is not right.

    The web was not created explicitly as a new distribution channel for Hollywood. And it should not be corrupted to become one.

    Artists need to be paid, and this is not in doubt. The question is how.

    Doing things so that the semantic web can take off is fine. Expecting a lot of data providers to adopt CC-BY licensing is also fine.

    But when it comes to something in the browser deciding whether what I am doing is fine or not, that is not fine.

  3. Thank you very much for this thoughtful post. I agree with much of what you say here. The only defense that I have is that it’s very hard to present a nuanced argument, especially to an audience mostly pre-disposed to disagree with you in 30 minutes and I had to drastically over-simply what we’re doing.

    Let me see if I can clarify a bit…

    First of all, one of the risks we always run with Creative Commons is that people misunderstand that in no way does the contract itself diminish fair use. First of all, it can’t. Secondly, we would never want to. One of the things we always struggle with is to make this clear. See our blog post about the Gatehouse Complaint for an example of our position on this:


    In my talk at DLD, I’m guilty of over-simplifying what RDFa does and how it might “prevent piracy”. I think the primary thing that it does is expose copyright information to users, creators and software and services so that things like attribution, payment for rights and other things that users might want to do will be easier and lower-friction. My assumption is that most users will want to follow the law if that choice is simple. If you are easily able to search for works that you may use legally, it is more likely you will opt to use these first. The primary driver for “protection against piracy” is the crowding out of content that is illegally used by content that wants to be used.

    I think this happens in open source and free software and Wikipedia is a very good example. Actually, the process that is current managed by hand and a few scripts on Wikimedia Commons is a very good example of what could be made easier with RDFa. Currently, if you are writing an article and you need and image, you go to Wikimedia Commons and look for the image. A large number of volunteers scrub uploads and protect the Wikimedia Commons against copyright violations. When you upload a work, there are several ways that you “prove” it is legitimate work for the commons. There is an uploader that will grab the metadata from Flickr, you can cite an email or other document and assert that the owner has licensed it under one of the free licenses, you can assert it is your own work, or you can make an argument that the use is fair use in one of their forms.
    What RDFa would do in this context is that an uploaded object could easily be checked for a free license. Such work would be immediately approved. Some day, if we have copyright registries, that may also help a work get “fast tracked” for approval. If the word doesn’t have verifiable or any RDFa information with a free license, then you would need to go through some work to verify whether the work was actually free to use, fair use being one of them.
    RDFa is not like DRM in that we do not think it will prevent people from making illegal or fair use copies or remixes, but that instead it will reinforce and make easy the use and verification of free licenses and content and eliminate one cluster of illegal users who would use free content if there were a choice.
    Also, I would add that I don’t think DRM will be successful. My point with respect to DRM is that those people who decide to ignore copyright notices in metadata are probably just as likely to use software to strip DRM. Exposing the underlying intent of the copyright owner will make “good behavior” easier since preventing bad behavior is nearly impossible.

  4. Joi clearly has a vision for Creative Commons that many of us who were involved in the early days will feel uncomfortable with – I know I do.

    The model he outlines also opens up the real possibility of perpetuating the foolishness of regional restrictions across all digital content, making what the BBC does with iPlayer enforceable for all distributions and allowing the crass stupidityof the music industry, using industrial-world agreements on ‘territories’ to limit which tracks Spotify can offer (http://crave.cnet.co.uk/digitalmusic/0,39029432,49300842,00.htm).

    The fundamental problem remains that any rights management system which is enforceable by technological means must be closed, but any rights management system that would be acceptable to people like me must be open.

    I want the content providers respect me enough to allow me to choose to be honest, to allow me to decide for myself when I will stretch the licenses they have offered me, and when I will take the risk of breaking their rules.

    In order for that to be possible the license needs to be in clear text, amenable to editing or even removal by my software – and this is not what is on offer. I don’t mind licenses following content around (would make life much easier) I just object to them being consulted by software behind my back…

  5. I don’t think we’re trying set it up to force you or your software to do anything. You can always edit html or write software to ignore it. Also, it’s not about doing stuff “behind your back” but to automate thing that we currently tediously do by hand or just don’t do because it’s such a pain.

    The point is not for the software to enforce something, but rather enable people to behave in a way that is more “legal” or socially acceptable because the software makes it easier.

  6. Joi, Bill, Stefano, Jim, there is much we agree on.

    We agree that it is good for digital objects to be associated with licences, and for these licences to be inspectable with ease. [In my mind’s eye I see something like a right-click, a “view source”, a way of knowing the credentials of the object.

    We agree that “good” use will drive out bad (an inverse variant of Gresham’s Law, as it were). Here I define “good” use as use of objects that have open licences for reuse, licences like the CC offers. So we want things that will encourage “good” use.

    We agree that taking human latency out of many of these processes is a good thing, that automation of these processes will help.

    Disagreement comes with the notion of “enforcing” good use, particularly where software is tasked with the enforcement. Because two things will happen. One, workarounds will be found and used by some. Two, those who don’t find workarounds will be inconvenienced even in their “fair use”.

    I do not have faith in Hollywood’s ways. I can see a world where someone dies while travelling, simply because access to medical records is prevented by path pollution of the DRM variety. Unnecessary and uncalled-for path pollution, and even worse, pollution which pre-criminalises many. [And yes, Stefano, I take your point, I mean TPM. But most people interpret DRM to be TPM as well].

    If Hollywood is even vaguely interested in having a sensible dialogue about all this, step 1 would be the immediate removal of Region Coding.

    Thank you for your comments, everyone. You’re all very busy people, and I learn from conversations such as this one.

  7. Joi, It appears this comment you made doesn’t reflect the fact that not all content is equal:

    “The primary driver for ‘protection against piracy’ is the crowding out of content that is illegally used by content that wants to be used.”

    Do you assume that the copyright problem today is caused primarily by users who don’t understand they are downloading (or reusing) content against the creator’s wishes? I question whether copyright ignorance is a primary driver behind copyright abuse. I don’t think aggressive copyright notice presentation will convince users to substitute their favorite music with another band’s song. If I want to hear the Rolling Stones, then Bach just won’t cut it for me.

    That said, if the browser doesn’t get in the way and make decisions for me, then I see no problem with this, especially if users can easily turn off these notices. However, the whole thing becomes less thrilling if the only way to shut off the active notices is to file paperwork in triplicate somewhere — that scenario starts to get ugly and look like administrative DRM.

    In practice, I think the “active” copyright notices would quickly become like billboards along a highway: seen, but barely noticed and ultimately ignored, as they blend into the passing landscape. If so, then isn’t this solution doomed to fail?

  8. Great post and comments.

    I don’t expect that semanticly-based attribution languages like ccREL and PlayTheWeb.org are ever going to get broad adoption as the embedded “broadcast flag” of content on the Internet.

    There’s some history. Remember the W3C’s PICS system? Every website was supposed to drop a embedded CSS/Lisp-style descriptor into an HTML attribute on it’s pages to say whether or not it contained porn or not. IE3 even had a browser implementation.

    People that cared about limiting censorship had a fit. In the end, it didn’t really matter though, because there was no adoption. Ultimately, PICS support was dropped everywhere.

    Having the language available in which to describe whether content has “strings attached” or “no strings attached” seems to be quite useful to me. When there is a hole in the language where new vocabulary is needed, somebody will fill that hole. I’m glad the Creative Commons guys are filling that hole before Hollywood does.

  9. Amen to that, Jim. A CC-driven ability to describe the strings is laudable, especially if the strings can be described without pre-criminalisation, with a real understanding of the culture we’re in.

    But, as Bill Thompson pointed out, we need to avoid doing this in a way that creates closed systems. We need to avoid having software-based policing, we’ve seen that fail before.

  10. Good points. Also, I’m doing the RDFa folks a great disservice by having focused on the piracy part. It was just the context of the conference I was at and the conversations I was having at the time. RDFa does a whole lot more than just copyright stuff and does provide the ability to describe content in many useful ways.

  11. Agreed, RDFa has a lot of potential, very useful in reducing process latency, particularly human latency. Still not convinced about where HTML5 was taking it, but that may be as a result of seeing HTML5 seem to veer out of control. I am assured this is no longer the case.

  12. @JP: There is an experimental validation of RDFa in henri sivonen’s validator. http://validator.nu/

    It is not per se in the specification but it is actively (and passionately) discussed. You might be pleased to hear that most RDFa processors are able to deal with unfortunate invalid html documents.

  13. thanks for the link, karl. I’d heard about validator, but done nothing about it. sometimes you need conversations like this one to catalyse some action.

  14. I really like this post, and the resulting conversation. I too am not a fan of DRM, and although I love CC, I’m definitely not a fan of restrictions such as “non-derivatives” and “non-commercial” whatever they may really mean these days.

    One nitty technical issue: Joi talks about XHTML as if that was still relevant, and you rightly talk about HTML5. Unfortunately the prospects for being able to meaningfully encode semantics, especially namespaced concepts such as RDFa in HTML5 are still not looking great, and I can’t see how it can be “brought under control” given it possibly has greater momentum than the W3C itself. Adding controls over HTML5 will likely cause a divisive fork. I liked this interview some scary metaphors and sound-bytes, but pretty accurate on the HTML landscape: http://www.webscienceman.com/2009/01/24/html-xhtml-html5-future-html/

  15. I’d like to introduce you to the terrifying possibility that the law is wrong, that a privilege intended for the printing press should not persuade you that people and the Internet should be bent to it, but that copyright should be abolished.

    “I will not accept the enslavement of my fellow man, nor any imposition upon his liberty, as reward for the publication of my art”

Let me know what you think