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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.

Byte Rights: Going Too Far™

Quinn Norton — Fri, 14 Aug 2009 21:30:52 -0500

Trademark has been a way for creators to indicate the source of their work for hundreds of years. It makes sense—one of the reasons I don’t buy that email-pitched V1agra is that I’m not sure I can trust Pf1zer. Trademark is in the same class of property rights that give us copyrights and patents.

No one else can call their drug Viagra, it’s Pfizer’s property. Recently, trademark law has been used to get domain squatters off common brand names, which I like when it really pertains to domain squatters and feel weird about when it targets the unfortunately named Viagra family’s website.

Colleen Bell is an Austin roller derby girl who skates under the name Crackerjack, a word that means expert, but is more fun to say. She’s trying to trademark her handle for inclusion in an upcoming video game featuring roller derby girls, presumably beating the crap out of each other. Fun!

Frito-Lay, owners of the Cracker Jack trademark for snack foods, caught wind of this and decided it was not so fun. They got legal, seeking to block Colleen’s registration. Spokesperson Aurora Gonzalez sees possible confusion: “It’s reasonable to imagine that a consumer would assume that the brand Cracker Jack is somehow sponsoring, affiliated with, or endorsing her if she is using the same name.” Colleen’s antipathy for Frito-Lay makes that seem unlikely.

Crackerjack has already been the name of two TV shows, an HTML editor, a Memphis band, and a sport-fishing charter in Alaska. But most importantly, crackerjack is an English word dating from the 19th century, before anyone made the tasty popcorn snack (its name came from a compliment at its World’s Fair debut).

Because the brand is so widely known, Frito-Lay doesn’t see anywhere that its trademark doesn’t apply. Gonzalez confirmed that any commercial application of the word crackerjack should be associated with Frito-Lay’s product. This is more than overreaching IP, it’s an invitation to lawsuit-by-Google by any company lawyer looking for job security, and it damages my own beloved English language by taking away new uses of words.

Frito-Lay isn’t the only company to appropriate language. Register a domain with Virgin in the name—I dare you.

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: Unfair All Around

Quinn Norton — Wed, 22 Jul 2009 11:45:19 -0500

Jeff Koons is getting mixed signals from the American legal system. He’s an artist known for “appropriating” pop culture in his art—that’s infringing copyright to some, fair use to others.

In 1992 a photographer sued Koons for creating a statue of his photograph of two people with a line of puppies crossing their laps. Koons exaggerated the dogs’ features, turned them blue, added flowers, and called it “Banality.” The judge didn’t buy that this was different enough, or parody, and Koons lost the case along with some of the $300,000 he’d sold three statues for. It was a mixed verdict for the photographer—he won the case, but legally speaking, it seems his work really was banal.

Then, in 2005 Koons ran up against another photographer, this time over a piece called “Niagara,” which used the photographer’s advertising image of women with Gucci sandals against a bright and disturbing surreal background. This one passed muster—the judge held that this was transformative enough to be fair use.

So, as Mr. Koons might himself ask, what gives?

Fair use is a strange part of law where judges have to be art critics—and economists, technologists, and historians as well. Like free speech, fair use isn’t defined on purpose. You’d no more want a list of “fair uses” than you’d want a list of “free phrases” defining speech, because no one writing a law could anticipate all the uses possible. Instead, the law trusts judges to be smart.

The problem is judges aren’t being so smart these days. This is caused by there being so much more to know about art, technology, economics, and so on, and not the result of some popular-but-IQ-reducing robe detergent.

In the last few years judges have decided how small you have to shrink a photo to index it in a search engine, what the market value of Seinfeld trivia is, and even what the literary heart of J.D. Salinger’s unpublished letters is. It’s too much to ask, and they need help. Fair use is a 33-year-old law, and we’ve invented a couple things since then—it’s time lawmakers got out of the 70s and did some updating.

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: Paradise Lost

Quinn Norton — Tue, 07 Jul 2009 09:00:00 -0500

This year marks the 10th anniversary of the founding of the much maligned grandaddy of peer-to-peer music piracy, Napster, and the eighth of the music industry’s first terrible move.

Napster founder Shawn Fanning didn’t exactly invent music file sharing—before Napster, Mac people had Hotline, which, being Mac software, presumably had better fonts, a gorgeous interface, and seven rabid users. What made Napster more than piracy was its many millions of users and billions of downloads. Napster had a population of music fans communicating their preferences and acting as free distributors and archivists, as well as consumers.

It wasn’t the 72,000 copies of Enter Sandman that made Napster interesting. It was finding out that someone out there had digitized their beloved recording of the TV musical version of Around the World with Nellie Bly—some crazy wonderful someone. It’s amazing that Napster didn’t result in more marriages based on hopelessly obscure tastes. It was the only moment when we could tell what bits of 20th century music people care about today, or had a chance to let tomorrow care about them too.

Shortly after the brief months it took to build the greatest catalog of all time, the Napster library was burned to the ground by a 2001 court decision. Now the vestige of its unified vision of all recorded music decomposes, slowly deallocated on isolated hard drives around the world.

With that foot well shot off, the music industry could turn its attention to suing teenagers for billions of dollars.

That Napster was illegal hardly seems to matter now. Straight-up piracy only spread, though that singular catalog was never matched. Music DRM is increasingly abandoned as a failure, and P2P turns out to be a bandwidth money saver. Had the labels embraced Napster, they might have retained a logistical and popular relevancy in the MP3 era. There was no shortage of ideas on how to do it—subscriptions, compulsory licenses, and so on. In the end, it turns out that the biggest losers in the Napster case, besides the fans of the dulcet Nellie Bly, are the music companies. They shut the door on their one chance at the future.

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: Friend in High Places

Quinn Norton — Mon, 29 Jun 2009 01:00:15 -0500

For years, Congressman Rick Boucher of Virginia wandered the desolate wilderness reserved for lawmakers who speak sensibly about copyright and the Internet. Well, given that criteria, the desolate wilderness was reserved for Rick Boucher. He’s been in Congress since 1983 and self-identifies as a techno-geek. Boucher is a different kind of politician—ours—loyal to a technology community few other representatives know exists. He has worked to legalize crypto export, expand rural broadband, support net neutrality, and has pushed back on copyright maximalism.

Boucher went so far as to say, “The recent extension of the copyright term by the Congress was wholly unjustified,” in a Slashdot interview in 2001. That’s right—Slashdot interview. Even Cory Doctorow described him as “the closest thing to a copyfighter in Congress.” (Boucher did vote for telecom immunity, confirming that no one is perfect.)

After the passage of the DMCA in 1998, Boucher spoke about how anti-circumvention measures eviscerated fair use, stymied innovation, and stifled speech, but it all fell on deaf ears.

Boucher tried to fix the DMCA with the DMCRA, or Digital Media Consumers’ Rights Act, introduced to Congress in 2003 and 2005. The DMCRA explicitly allowed circumvention for non-infringing use, re-affirmed Betamax (the legal case, not the tape media), and required labeling of media with software that could, say, install a rootkit to prevent you from ripping your Sony BMG CD.

Both times it withered like a beautiful flower planted in the toxic sludge that is a house committee.

Boucher has always been mostly alone, but times are changing. Every new Congress brings the congressional shuffle, where people on congressional subcommittees you’ve never heard of jockey and swap positions overseeing particular specialties of lawmaking, hoping to bring home pork, enhance their political power, or even occasionally fight for a cause they believe in.

For the 111th Congress, Boucher will be chair of the House Subcommittee on Communications, Technology, and the Internet. It doesn’t sound thrilling, but for the first time it’s a real launching point for legislation that could fix the DMCA, or at least make it slightly less evil. So, thanks, Virginia’s 9th district, for letting Rick come to the party.

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.