Searching for the Moon

Shannon Clark's rambles and conversations on food, geeks, San Francisco and occasionally economics

Hilary Rosen on Larry Lessig’s blog

Posted by shannonclark on August 18, 2005

After the comment storm I participated in a few days ago, Hilary Rosen has posted her responses to the comments on Larry Lessig’s blog.

I added the following additional comments:

“There is a critical difference between the “Internet” and other spaces governed by US laws.

For one – the “Internet” is truly global (I think the last country without connectivity has now been connected) and while it is true that US legal decisions have a way of being written into treaties and/or copied around the world – as we have recently seen in the case of the EU rejecting Software Patents this is by no means universally true.

So when the US, as in many recent laws like the DCMA, tries to legislate for the Internet as a whole it may in a very real sense be fighting a losing battle, with the biggest losers possibly being US citizens (and our corporations) who will be prevented from the full potential of digital technology.

In the case of online gambling, for example, this is a complex subject – but it is also very clearly one where companies (and their millions of customers) in other countries are seeing a great deal of innovation and revenues.

In the case of innovation in less politically charged realms – from patents to music – I personally find it striking that some of the most innovative music I have heard recently have been mashups, mostly from Europeans (though they are likely difficult to license in Europe as well as the US).

On a more legally clear example, I listen to a large number of podcasts – however here in the US they are restricted heavily by limitations (specifically the lack of legal universal licenses ala radio licenses) to allow podcasters to mix and play any song they would like to. However other countries have adopted radio-like universal licenses and the result is one of my favorite podcasts and a mix of music better by leaps and bounds than any radio station I have ever heard (on or offline) – Karin’s Themed podcasts. These are about 1 hour blocks of music bound by a common theme – often a very international selection of music, but even when she selects only English language songs her groupings and selections cause me to hear old songs in new ways.

She pays the licensing fees in the Netherlands to be in legal compliance – so the artists she plays do get compensation from her playing of the music, in much the same way they do when a radio station plays them – and as a fan I gain the great benefit of hearing old music in new, creative ways.

I think for many forms of non-duplicative creative use (i.e. not selling a CD that is an exact copy of the artist’s CD) a form of universal license such as the radio license – though probably tiered and/or with a per-unit percentage of price capped fee – could make much more sense than the current “clear every right with every possible rightsholder”. Especially since the number of “orphaned” copyrights is huge and growing (even works created just years ago can be difficult if not impossible to track down the copyright holder of. A simple example, I wrote to many USENET newsgroups in the early 90’s – my writing gained am immediate copyright – however if you were now to want to print, in full, the content of a specific USENET newsgroup you would have to find each poster and get permission. I am no longer at the email address I posted under, which was a university account, a quick google search of the Internet does turn me up as the first “Shannon Clark” and indeed I list on my profiles that I attended the university where the posts came from – so it is probable that I am the same Shannon Clark – but how can you be certain? There are literally dozens of other Shannon Clark’s in the US. And I did this fairly simply, I posted under my own name – what about someone like “three blind mice” – how would you go about including his comments, in full, in another creative work?)

The point is that the requirement “get permission first” is increasingly untenable.

Here in the US we do not currently separate out commerical and moral rights – in the EU they have taken the approach that these rights are separate (which creates the complication that in the EU creative commons licenses or attempts to put new content into the public domain may still be bound by “moral rights” which apparently the authors may not be able to waive completely).

I think we should make it easy for the “public domain” to grow again – both by cleaning up orphaned copyrights (Lessig’s suggestion of a minimal registration fee would clear things up pretty quickly and separate out “commercially viable” copyrights from the millions of orphaned ones – and have the further advantage of making it clearer which works were/were not in the public domain) and by making the process of offering up works to the public domain easier (and perhaps making some areas, such as comments especially anonymous ones, USENET etc areas where the public domain is assumed – that is by posting publically unless you attach restrictions you waive future need to contact you for permission to quote, remix, etc)

Moral rights – i.e. the right not to have your words used in ways you do not agree with are a much trickier issue. I think, however, it might be possible to expand the concept of “misrepresentation” (and/or libel) to cover this without much difficulty. (i.e. you can use what I right without first clearing it with me – but you can’t use it in a way that makes it appear that your changes/remixes are my original work – i.e. use my works to claim that “Shannon Clark wants there to be no public domain at all” via the means of selective editing and insertation of new words into my text.

You could, however, use my words in a quotation (even an extended one that might go beyond “fair use”) as part of your pamphlet or book arguing against my position. If my writings had a way of being placed in the public domain OR if you had a way of obtaining a “radio like” license then I (in the US at least) couldn’t object to your usage and use that objection to prevent (or make commercially onorous) the publication of the book.

It is not always going to be a clear line – and multimedia examples will be complicated (does the music playing a documentary imply that the musicians condone the actions appearing on screen to their music? what if it isn’t a documentary but a commercial? what if it isn’t a ‘commercial’ but is a ‘reality tv show’?) but I think there are alternatives which offer great benefit than the current stasis and uncertainty.

Shannon”

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