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Byte Rights: Read 'I Agree' to Continue

Quinn Norton — Wed, 17 Mar 2010 15:45:06 -0500

Ah, the humble End User License Agreement. You tear through them, you click “I agree,” but what exactly are you agreeing to? I don’t actually know, because like you, I never read them.

Claiming to read all your software licenses is the reverse of masturbation—90 percent admit they don’t do it, and the other 10 percent are liars. It’s hard to get through a whole day without agreeing to the occasional complex contract, we definitely couldn’t get through the day if we read them.

These days, companies claim to sell us their EULA in lieu of just selling us their software, to give themselves powers over their software the law doesn’t give them. How much power? No one exactly knows. This last-mile legislation by companies has met with mixed response when it goes to court.

Where companies use EULAs to obviously subvert state or federal law, judges don’t like them much. Take First Sale, the legal principle that lets you resell a copyrighted item you bought, like a book or CD. Many courts have held that if it looks like a sale, that’s what it is, and your first-sale rights stand, whatever the EULA says—especially if you never agreed to it. When Autodesk kept sending DMCA notices to eBay regarding seller Timothy Vernor’s re-sales of their software, he (and nonprofit consumer advocacy group Public Citizen) sought to get the court to declare what he was doing legal. Since he never so much as installed the software, the court has been pretty sympathetic, ruling against Autodesk.

But in other cases, where the seller did the clicking on an agreement, the courts have sometimes held that they lost first sale by contract law, sometimes by copyright law, and sometimes not at all. The pre–software age precedent is pretty clear about a strong first-sale right, but software makers over the last 25 years have had a lot of opportunity to get judges used to the idea that they can sell their product yet write their own conditions on it. With software companies writing the law, what do we need Congress for, anyway?

Quinn Norton writes about copyright for Wired News and other publications. Her work has ranged from legal journalism to the inner life of pirate organizations.

Byte Rights: Ruining the Party

Quinn Norton — Fri, 05 Feb 2010 17:15:00 -0600

I’m going to say something I don’t get to say enough: Copyright can be great. It can provide a living wage, spread knowledge, and even sometimes enhance art. It gives us Open Source, viral art, and countless creative works that would have died in the desk job. Many of the worst uses of copyright are actually misuses, deceptions, and hustles. They often trade on how confusing copyright is, giving too much power to legally worded nonsense meant to squeeze money or restrict use that’s all bark and no legal standing.

There are so many bogus claims out there, high and low. Even the notice on the White House’s Flickr stream says pictures are posted “only for publication by news organizations and/or for personal use printing by the subject(s).... The photograph may not be manipulated in any way....” It’s nice they tell you why they posted it, but they’re not telling you what you’re allowed to do with it. The license link on the same page explains that all intellectual work of the U.S. government is “not subject to copyright in the United States and there are no U.S. copyright restrictions on reproduction, derivative works, distribution, performance, or display of the work.” You’re allowed to put horns on Obama’s picture and march down the street with your derivative work claiming he turns into a lizard at night and eats janitorial staff. You’d only be violating the laws of common sense.

The most pernicious bogus claims aren’t ever seen by the public; they’re misused to damage individuals and businesses by knocking them offline. According to a report that Google provided to the New Zealand government, more than half the DMCA take-down notices that the search giant receives are from businesses targeting their competition, and then another 37 percent of those aren’t valid copyright claims at all, much less ones that check out legally. These days, the DMCA take-down is largely a dirty-tricks tool. It’s too bad that copyright, which can do so much good, is becoming such a hustler’s tool that we might almost be better off without it.

Quinn Norton writes about copyright for Wired News and other publications. Her work has ranged from legal journalism to the inner life of pirate organizations.

Byte Rights: A Nobel Cause

Quinn Norton — Tue, 22 Dec 2009 13:30:46 -0600

Elinor Ostrom recently became the first woman to win the prestigious “fake” Nobel prize for Economics, for her research on how self-governing groups successfully share resources. She spent years refuting the idea of the Tragedy of the Commons—a thought experiment dating from 1968 that basically said anything shared would get spoiled because people would only value something they owned. The man who authored the idea, Garrett Hardin, presumably observed very unruly preschoolers.

Ostrom actually looked at how people share finite resources like forests and grazing land, and found that with the right ground rules people not only did fine, they did better than companies and governments. Yipee for her and all, but why am I telling you about it in a column about digital rights and IP?

Turns out Ostrom laid the groundwork for thinking about the commons, including our very own digital commons. Her work also shows in economically solid terms how and why total monopoly rights, like copyright and patent, might not always be the best for society. Ostrom showed that, when a commons can manage itself, the proximity of the users and the governance, i.e., the two being the same thing, makes the system work more efficiently than either centralized government or strong property rights.

Nearly all digital-rights projects—Free Culture, Creative Commons, Wikipedia, Linux, and even HTML and TCP—were produced by self-organizing structures, owned by no one, and not run by government. Without official recognition of work like Ostram’s, they’re also economic unicorns, entities that don’t exist because they can’t exist, no matter how much they are kicking butt. They’re invisible to many politicians, academics, and business people. They can’t be funded or acknowledged, they can’t be suggested, and what they have must be taken away as quickly as it’s noticed, and handed to either private industry or public administration. This recognition is great news for those of us who want to see the digital commons respected and considered seriously when lawmakers or executives make decisions that might affect the net.

Sure, media sharing, open source, and the Internet might have long worked in practice, but now they work in theory, too.

Quinn Norton writes about copyright for Wired News and other publications. Her work has ranged from legal journalism to the inner life of pirate organizations.

Byte Rights: Show Business Blues

Quinn Norton — Fri, 04 Dec 2009 11:00:20 -0600

This may seem odd, but I’d like to recommend a movie this time. It’s called Sita Sings the Blues. It’s an animated retelling of the Hindu Ramayana interwoven with commentary about the story and the creator’s real life troubles, set to the 1920s-era songs of Annette Hanshaw. I know, not what you were expecting, but trust me. It’s in turns hilarious, lush, sad, and beautiful. It’s worth your time, and it’s free at Sitasingstheblues.com. Go ahead. The rest of the column will still be here when you’re done.

See, wasn’t that great?

Most talk of whether copyright is restricting free expression is theoretical, but for film makers like Sita’s Nina Paley it’s a real and common problem. Paley read the Ramayana and discovered Hanshaw’s jazz singing around the same time that she lost her relationship, and got inspired. It’s often a bit of music or a shot with something in the background that gets indie filmmakers in trouble, but Paley was particularly stuck.

It’s obvious when you see the film that Hanshaw’s songs are vital. A different movie could have been made, but not Sita Sings the Blues. Hanshaw is older, but not public domain. Paley went ahead anyway, unsure how it would turn out. “If I kill my own art out of fear of them, then I’ve really lost,” she told QuestionCopyright.org. Turned out she couldn’t afford the rights. It could cost up to $200,000 to ever show Sita commercially.

So, more than $80,000 into making Sita with her own money, Paley Creative Commons licensed it and gave it away. As I write, the archive alone had 113,629 downloads, plus who knows how many on the torrents and from other sites. Paley also released the source files for Sita as well as posting it, and others have started to remix her scenes into new things, which she posts on her blog. She says her next project will be inspired by the copyright troubles in her life right now.

I know it’s selfish, but I’m glad Paley ran into trouble. We got a great movie, and the copyright reformers got a great auteur on their side.

Quinn Norton writes about copyright for Wired News and other publications. Her work has ranged from legal journalism to the inner life of pirate organizations.

Byte Rights: Et Tu, Reporters?

Quinn Norton — Mon, 02 Nov 2009 11:30:14 -0600

Like the other media industries, newspapers are having a hard time finding people that still want to give them money. Unlike music and film, newspapers aren’t selling to the customer so much as selling the consumer to the advertiser. But with circulations dropping and basically infinite new ad space becoming available on the Internet, advertisers aren’t signing up in droves. This being the news biz, there’s no lack of people to talk about why or what to do.

Some media pundits think readers who might pay are defecting to blogs. Others think Google News is being evil. Still others blame Craigslist.org for the death of classifieds.

Whatever the cause, my colleagues are running to the government for a bailout. Unlike car makers and banks, they aren’t asking for huge piles of money. They want a legislative bailout.

The newspapers are asking for (among other things) changes to copyright law. Some, like The Washington Post, want to restrict linking to or summarizing stories for some period of time. Now, the point of news is to get your story out fast and accurately to make the biggest impact you can. Copyright-reforming newspaper folks are looking to change the law to give them a special right to stop their stories spreading.

When you’re asking for a law to be rewritten to make your ultimate goal harder, something has gone terribly wrong.

Worst of all, there’s scant evidence that rewriting the law would save the papers’ dying business model. Many of their readers have left for good, and online advertising has lowered ad prices across the board.

Just like the RIAA isn’t saving music, and the MPAA isn’t saving cinema, newspapers aren’t going to save journalism. Journalism turns out to be doing just fine in the age of the Internet, where people read blogs and Twitter and watch video clips and even sometimes go to newspapers’ websites to get their news. Newspapers have conflated their industry with their field of endeavor, and their business model with the only way of doing it.

Quinn Norton writes about copyright for Wired News and other publications. Her work has ranged from legal journalism to the inner life of pirate organizations.

Byte Rights: Breakin' the Law

Quinn Norton — Mon, 12 Oct 2009 10:15:00 -0500

I often get questions in email, or at conferences or parties, about points of IP law. I try to explain that I Am Not A Lawyer or that, dang, this is a party, but most people’s questions about what’s illegal are easy to answer (ripping DVDs: yes; ripping audio CDs: no; drunkenly singing “Happy Birthday” through a bullhorn at a wedding: yes; making a mashup song: depends what state you’re in). But I’ve realized that’s not really what people are asking me, because there’s a big difference between telling you what’s illegal and telling you what not to do.

Unlike much of law, copyright law requires that the rights holder go to the trouble of suing. If they don’t want to, you can claim their masterwork as your own and do a rendition in armpit farts on national TV, make a mint selling the recording, and never have a spot of trouble with the authorities.

This is understandably confusing for most people. We like to think of our laws as moral, vital to a functional society. Current copyright law, like all unreasonable law, undermines this. The normal ways people use computers these days involves enough copyright violations that all the lawyers ever born couldn’t pursue them all.

Almost nothing you do in your own home is ever going to be findable by the RIAA or the MPAA, which don’t have the time and energy to care anyway. The unspeakable truth is, for the most part, no one cares if you break the law. This is not an answer lawyers can give you, but I can. Give songs to friends, Xerox library books, do terrible mashups of the Top 40—no one is coming for you. The good news is that most of us are more sensible and moral than the law. We can tell what’s harmful, and won’t do it, though we all get confused in the grey zones.

The real answer to your copyright questions is, ignore the law when it doesn’t matter, and obey it when it does. But how can you tell? You can’t! Isn’t this fun?

Quinn Norton writes about copyright for Wired News and other publications. Her work has ranged from legal journalism to the inner life of pirate organizations.

Byte Rights: Back to School

Quinn Norton — Mon, 28 Sep 2009 15:00:00 -0500

As the summer wanes, the days get shorter, and the wind starts hinting of fall, you’ll naturally ask, what’s hawt in curriculum this year? Forget sex ed and intelligent design, the latest educational brawl is copyright!

Curriculums are being shipped to thousands of schools across America to teach our children all about intellectual property—every lesson plan authored by a lobbying group or industry association. It’s even legally required now in California’s famously overfunded schools.

I’m pretty into this copyright thing, but I still try to drop by the real world on occasion, just to see how it’s going. In real life, schools are struggling with larger classes and fewer resources. Now, instead of music or art (or my favorite elective, ninjutsu), we’re going to have our overworked teachers inculcating children about one side or the other of the copyfight? Great.

The BSA (Business Software Association), MPAA, RIAA, and even EFF are all into it. The lesson plans play to type—the EFF, geeky; the rightholders, incomprehensible—explaining more about the attitudes of the people that created them than they do about IP.

According to the BSA in its online K-2 “Cyber Tree House,” it’s uncool for kindergartners to “download or share copyrighted software programs, music, movies, or games without paying for them” or “copy pictures or books and magazines without permission from the author or artist.”

The MPAA has—I’m not kidding—”Lucky and Flo, the world’s first-ever DVD-sniffing dogs...” who are “trained to detect pirated DVDs.” Ah, childhood memories of being talked down to by people who think kids are idiots.

The EFF’s lesson plan ends in a mock trial of “the legal drama of Walt Disney Studios v. Faden.” I love the EFF, but the kids into that drama already applied to be EFF interns over the summer.

But as lost in minutia as the EFF might be, the rightholders’ lesson plans occasionally veer into naked contempt. Kids won’t hear the ideology; they’ll hear that minutia, or that contempt. Or, hopefully, it will all get ignored by teachers, and kids will hear band instruments, poetry, or the hissing of Bunsen burners.

Quinn Norton writes about copyright for Wired News and other publications. Her work has ranged from legal journalism to the inner life of pirate organizations.

Byte Rights: Kindling Our Desires

Quinn Norton — Mon, 31 Aug 2009 18:15:17 -0500

The Kindle is pretty, and sleek, and invitingly Linux-based. But underneath that alluring exterior, right alongside that hackable code, is a body of laws: terms of service, DMCA, and DRM, saying “Oh no, don’t touch me!”

To keep providers like the Author’s Guild happy, Amazon has restricted features and talked about uses being prohibited, as with its famous update taking away much text-to-speech functionality. But in a world where everything gets hacked, Amazon doesn’t have to do much more than make a reasonable effort at DRM—the legal burden is on the user. The Kindle is not very well-locked-down, and often hackers take that as winking permission.

Jesse Vincent is among the Kindle customers to create a “user-generated update.” His native ebook converter for the Kindle, called Savory, lets you convert ebooks from open formats (EPUB and PDF) to the Kindle’s format. He did it because, he says, “I’m in love with my Kindle.”

He wanted to make his beloved Kindle more useful, and he has. Law students have mailed him to say they read briefs using Savory; D&D players use it to read their manuals.

He doesn’t know if he’s allowed to do it, and he was never able to get any kind of permission from Amazon. This leaves the company free to shut down Savory at any time. “Amazon has taken a very strong pro-publisher stance,” says Vincent, but he later notes that “the actual Kindle platform is very tinkerer-friendly.”

According to Library Journal.com, the Howe Library called up Amazon to ask about lending the Kindle to patrons and was told, “Sure, go for it.” But when the LJ spoke to someone official, they said Amazon’s policy bars lending the Kindle. Howe and other libraries have been happily lending them out since then, with nary a peep from Amazon. A crackdown on libraries seems as likely as an Amazon puppy-kicking division, but the fact that it’s even remotely possible is disturbing enough.

Devices like the Kindle and the iPhone are honey pots for hackers who love them. It’s safer to demand open formats, where no one can take away what you’ve bought or invested in.

Quinn Norton writes about copyright for Wired News and other publications. Her work has ranged from legal journalism to the inner life of pirate organizations.