Free (libre) and open source software is one of the best examples of an alternative to restrictive copyright, but even within these communities there can be heated debates about licensing. The WordPress community just witnessed such a debate between the founder of WordPress, Matt Mullenweg, and the developer of a popular premium WordPress theme, Chris Pearson, over whether or not themes are subject to the GPL (WordPress’ license). The GPL applies to derivative works of a program—requiring that they, too, must be licensed freely—but Pearson maintained quite publicly that he wasn’t subject to it and could use a proprietary license for his theme. This caused tension between him and Mullenweg, until last week, when Pearson gave in and switched to a split GPL license.

Without getting too bogged down in the legal details and community politics, the dispute is of interest for a couple reasons. Although some open source developers believe the GPL is too restrictive, copyright enforcement is approached in a very different way by free software projects than proprietary software companies or the entertainment industry. Mullenweg had sought a legal opinion from the Software Freedom Law Center over a year ago, and they agreed that the PHP part of a WordPress theme (which interfaces directly with WordPress code) is subject to the GPL, while JavaScript and CSS are not. Pearson disagreed, relying on some pretty novel legal arguments, but those were countered by others in the community. Mullenweg began to put more social and business pressure on Pearson, offering to pay for people to move away from Thesis to premium WordPress themes fully available under the GPL, and speaking publicly about how he felt Thesis was hurting the community by violating the license. Things became pretty heated, and the two squared off in a joint interview, failing to reach any visible consensus. It seemed like a lawsuit from Mullenweg would be the only way to resolve things—something he’d been trying to avoid at all costs—but a week later, the legal conflict was averted as Pearson switched to a split GPL license (i.e. PHP is GPL, as required; proprietary license for the rest). It was messy, but very different from the sue-first-ask-questions-later approach of so many copyright holders, and a lot less messy than a lawsuit could have been. The business and social pressure caused some tension in the short-term, for sure, but ultimately led to a resolution without nearly as much pain or division as a lawsuit within the community might have caused.

This kind of disagreement also highlights the fact that free software licenses (like the GPL) and the free culture licenses they’ve inspired (like some of those offered by Creative Commons) are ultimately hacks on a restrictive copyright system; they’re merely tactics to reverse the negative effects of overly restrictive copyright, but not at all the ideal scenario. For example, we’ve seen concerns over how Creative Commons licenses act as a contractual layer on top of copyright, and non-commercial restrictions can also be a source of tension. Sometimes these disputes help a community to better develop its position on copyright and licensing, but other times, they’re a sign that these licenses are still just a hack on a less than ideal system.

It’ll be interesting to see how Thesis fares in the long-run with a split licensing approach compared to other premium themes that are 100% GPL. Regardless, it’s nice to have a more or less happy ending where the community was able to resolve things without getting the courts involved.

Read the comments on Techdirt.

Fair Dealing—There’s An Exception For That

The current Canadian concept of fair dealing is more limited that the American doctrine of fair use. The Supreme Court has repeatedly ruled that it should be interpreted broadly, but present law restricts fair dealing to just five categories—research, private study, criticism, news reporting, and review. NDP Member of Parliament Charlie Angus had tabled a private member’s bill to introduce flexible fair dealing back in March, but with Moore’s vision winning out over Clement’s, Bill C-32 rejects flexible fair dealing.

But, it does contain a host of new exceptions for parody and satire, education, time shifting, formating shifting, and backup copies. There’s even a new “Non-Commercial User-generated Content” exception (29.21), which would legalize mashups and remixes under certain circumstances.

While the litany of exceptions fails to introduce real flexibility into the law for new innovations, Michael Geist—leading critic of the last, failed copyright bill—still describes this as “a pretty good compromise.” There are those who strongly oppose the uncertainty that comes with flexibility, so maybe the “there’s an exception for that” approach is the best we can hope for right now.

Though not perfect, it’s still a positive development, and definitely an improvement on the past.

Other Good Compromises

Geist notes two other good compromises. As with the last two copyright bills, C-32 would implement a notice-and-notice system for Internet Service Providers to handle copyright infringement allegations, rather than the guilty-until-proven-innocent American notice-and-takedown system, or the insanely disproportionate three-accusations-and-you’re-kicked-off-the-internet approach. Also, a change to the statutory damages provision would finally distinguish between large scale counterfeiting and non-commercial infringement, limiting the latter between $100-$5000 instead of the current $20,000 maximum. While $5000 per infringement is still pretty ridiculous, cutting the maximum down by 75% for non-commercial infringement would be a positive development.

The Downright Terrible: Digital Lock Provisions Undo The Exceptions

The huge loophole in this bill is the approach to anti-circumvention provisions, which would make it illegal to break a digital lock even if what you are doing is otherwise non-infringing. It’s important to understand how this massively undermines any good which might come from additional fair dealing exceptions: if there’s a digital lock, the exceptions are meaningless. Bill C-32′s rigid digital lock provisions undo the exceptions.

• Want to make a backup copy? There’s an exception for that… unless there’s a digital lock!
• Want to transfer songs to your iPod? There’s an exception for that… unless there’s a digital lock!
• Want to make use of copyrighted content in the classroom? There’s an exception for that… unless there’s a digital lock!
• Want to remix Louis Armstrong with death metal? There’s an exception for that… unless there’s a digital lock!

This has to change. More importantly, it doesn’t have to be this way. Submissions to last summer’s consultation were overwhelmingly opposed to this approach. Other countries have met their international obligations with anti-circumvention provisions that are actually linked to copyright infringement (e.g. New Zealand‘s passed law, India‘s proposed law). With a flexible anti-circumvention provision, the exceptions would apply to digital locks too.

Why should companies be able to rewrite copyright law and trump exceptions simply because they slap a digital lock onto something? If there’s a backup exception, there should be a backup exception. If there’s allowance for parody and satire, no digital lock should be able to take that away. And what’s the use of a format shifting exception if digital locks will force you to repurchase your content to stay legal anyways?

Canada needs to have a flexible anti-circumvention approach that is actually linked to infringement, or none of the compromises in this bill even matter.

Other Nasty Things

There’s an inducement clause (27 (2.3)) which would make it illegal to provide a service online “that a person knows or should have known is designed primarily to enable acts of copyright infringement.” Would the Internet-equivalent of a VCR pass that test? What about BitTorrent? Both technologies can be used to enable acts of copyright infringement, but they also have legitimate uses. How the “primary use” is determined could have significant implications here.

The time shifting provision (29.23) warrants further review, as it contains a variety of conditions under which you can record a program for later viewing. For example, the bill would require that you “keep the recording no longer than is reasonably necessary in order to listen to or view the program at a more convenient time”—seemingly, a requirement to get rid of recordings once you’ve listened to/watched them.

Also, library provisions allowing for distribution are subject to digital locks, and contain a requirement for copies to be destroyed within five days.

There are lots of details like this in this bill that require further study, and most likely revision.

The Strategy: Let’s Make Some Noise

The Conservatives are seeking support on this bill from the Liberals. Liberal Industry critic, MP Marc Garneau, is keen to work with the government to introduce a new law, and is open to the possibility of summer hearings to get it passed. But Clement told the CBC, “I’m not coming down from the mountain with this chiselled in stone… we could seek some consensus and there could be some positive amendments to this bill.”

When I met with my MP, Liberal Joe Volpe, over Bill C-61 in the summer of 2008, his main question to me was whether to scrap the bill or to fix it. Critically, We must let our MPs know—especially the Liberals—which compromises are acceptable, and which undermine the entire copyright bargain. Flexible fair dealing would have been better than a litany of exceptions, but that compromise could work. However, allowing digital locks to undo those exceptions is simply unacceptable.

Conclusion

Politics is the art of the possible, a complex art of balance between ideals and interests. This bill isn’t perfect, but there is a push from both sides of the floor to get it passed. There are a lot of good compromises, but whether or not the bad provisions get fixed could have huge implications on Canadian culture, technology and business in the years to come. Make your voice heard.

Digital technology has a disruptive effect on traditional content industries in many ways, but this is especially true when it comes to copyright and the law. We’re at the beginning of a struggle between traditional and new media in the space of electronic publishing, and much like the past decade has been for the record industry and newspapers, the transition from analog to digital isn’t going to be easy.

Patents

First, there’s an unfortunately predictable area of legal conflict for any emerging technology: patents. Winners innovate, losers litigate. We see it again and again, with the most heated battles taking place right now in the mobile computing space between companies like Apple, Nokia and HTC. To mention just a couple of patent lawsuits related to e-books:

• In March 2009, Apple was sued by a Swiss communications company, MONEC, for distributing digital book reading applications through the iPhone App Store. MONEC believes that Apple violated a 2002 patent, which describes a “light-weight” electronic device with a “touch-screen” LCD-display having the “dimensions such that [...] approximately one page of a book can be illustrated at normal size, this display being integrated in a flat, frame-like housing.”
• That same month, the Discovery Channel sued Amazon claiming that the Kindle violated a patent held by its CEO for technology that “provides for secure distribution of electronic text and graphics to subscribers and secure storage.” When asked whether Discovery would build an e-book reader, the company’s spokeswoman said, “we are only focused on the Kindle at this time.” So, they aren’t interested in making anything, just in suing people who make things.

Even though these broad reaching patents are patently obvious to anyone who understands technology, the lawsuits happen time and time again because they’re profitable. As more companies get involved in the e-reader market, expect more patent lawsuits, just as Apple, Nokia, and HTC have started suing each other over smartphone patents. Because of problems in the patent system, this is the price that innovative technology companies pay to step through a patent thicket and get involved in the market.

Copyright

Copyright law, however, has many more implications for all parties involved when it comes to electronic publishing. The issue is fundamentally about freedom, and the economics of digital goods, as copyright law gets used and abused as a crutch and a hammer.

Economics of Abundance

The problem stems from a misunderstanding of scarcity. As we move from atoms to bits, we also move from scarcity to abundance. Traditional business models are built on scarcity—selling copies, for example. Windowing systems are used to milk money from hardcovers before the paperbacks are released. Basic economics tells us that, in a competitive market, price gets set at the marginal cost of reproduction, at the cost of producing one more copy. When books become digital, the marginal cost of reproduction is essentially zero. And there are no hardcover and softcover e-books. Publishers are terrified by what Napster did to the record industry, worried that consumers won’t want to pay for books, so they’re trying to keep content locked down and with high prices, to keep the audience passive and consuming—and copyright law is often the tool for the job.

Anti-features

How many people are familiar with the Amazon Kindle Big Brother mishap? In its best impersonation of big brother and the most ironic tech event of 2009, Amazon deleted all of the copies of 1984 and Animal Farm from every single Kindle last July because the publisher changed its mind about offering an electronic edition. Just like that, people who legitimately purchased (well, more like “rented”), those books lost them in an instant.

Amazon backtracked on the deletion, restored the books and promised it would never happen again, but why do devices like the Kindle have such a kill switch to begin with? As Andrew Moshirnia from the Citizen Law and Media Project later explained,

Amazon used its power to delete entire volumes, a tactic with all the subtlety of carpet bombing. But this technology could be used like a sniper rifle, replacing small portions of an offending work and leaving the reader none the wiser.

When you buy a physical book, the retailer or publishing doesn’t have the right to enter your home and confiscate it, or rip out a page. Yet, that’s the functionality that’s being built right in to these e-readers.

This is an example of an anti-feature—a “feature” that no user would ever request or desire.

The reason these digital locks are appearing is that many publishers and authors don’t feel that they can protect their copyright interests without them. And, the technology companies often don’t mind the monopoly they wind up with when consumers can’t easily move their content from their device to a competitor’s, as they become the new gatekeepers (e.g. Apple and iTunes), but at other times they’re under intense pressure from publishers and authors to limit the functionality of their devices.

For example, in February 2009, Paul Aitken, as executive director of the Authors’ Guild, made an extraordinary statement when he discovered that the Kindle had an experimental text-to-speech feature. He insisted that it was illegal, claiming,

They don’t have the right to read a book out loud. That’s an audio right, which is derivative under copyright law.

Notice that no one, at least no one I’m aware of, would claim that, if you purchase a dead-tree book, you need the publisher’s permission to read it out loud. I don’t believe the Author’s Guild is knocking down on people’s doors for reading to their kid at night. But, the second that process is automated as part of electronic reader, they claim it’s a violation of copyright. Amazon caved, and allowed rights holders the ability to disable the text-to-speech feature, something that would have been useful to many, and even essential for some (such as the blind).

The real concern is audiobook sales. If text-to-speech technology can read a book for you, why would you need an audiobook? This is an instance where authors threatened to use copyright law to shut down a new technology, the sort of feature that would help to transform the book and create it anew in electronic form. The new potential was stifled because it might affect the old sales model.

Mike Masnick of Floor64 describes it as being “like the ‘horseless carriage’ or ‘talking pictures,’ rather than focusing on what the new technology allows, the focus is on bringing the old offerings onto a new platform and assuming it’ll be just like the old…”

Here’s an example of a copyright license for an eBook on the Secrets of Digital Photography (admittedly from 6 years ago, but the same fear is present today). It’s presentation in a FAQ format:

Q: Can I sell it?

A: Yes you can, as long as you do four things (five if you sell it in a public forum such as eBay) then you can sell the eBook original with its package intact when you have outgrown it or no longer need it. Here is the list of things you MUST do, otherwise you have not lived up to the law:

1. (Only if selling it on a public sales site such as, but not limited to, eBay.) Inform the publisher that the sale will be appearing on days x through y. That will alert them of your legal sale and prevent you from looking like a software pirate. You’ll get no hassle from them if you simply let them know what’s going on.

   eBay has had a policy for years of not allowing CDR materials to be sold through their site unless the seller is the original copyright holder. Both eBay and we know that software pirates are plentiful and eBay knows that they cannot legally be a willing party to software piracy. Now eBay allows resale of original material if the seller has permission from the copyright holder to do so.

   Permission costs nothing. Ask first.

2. Remove every shred of eBook software and files from all of your computers. All of them.
3. Destroy every hard copy print-out you have made from any and all of the files.
4. Trash all of your iNovaFX Photoshop actions.
5. Destroy all traces of the original serial number that you may have kept as a record for upgrades and sidegrade purchases at a discount, and inform the recipient that upgrade privileges do NOT transfer with the transaction. Upgrade and sidegrade privileges only are granted to the original first recipient of each eBook.

And my favourite part was the post-amble:

Copyright in the digital age is evolving. Perhaps some future system can be developed without onerous conditions that would allow you to sell it and not have to live up to today’s conditions.

But for now, our eBooks are the legal equivalent of an object. You can buy a book, then sell it when you’re finished with it. But if you were to run off a copy of it–just for reference, mind–then you could NOT sell the original without destroying your copy. Nor could you sell that copy to a friend.

We endeavor to only expect the same equivalent procedures from buyers of our eBooks. We want you to buy it and enjoy it and learn from it and use its included software and example files to your great benefit.

But we are merciless with people who steal it.

Of course, that isn’t you, so this whole discussion is academic.

There is a fear of the potential for digital books that causes rights holders to treat them like physical objects, to use copyright to impose these restrictions, to impose artificial scarcity. It’s an all stick no carrot approach, and copyright law is the stick.

Anti-circumvention

And rights holders have been pushing for more and more draconian copyright laws. The Digital Millenium Copyright Act, a 1998 update to copyright law in the States, contains many troubling expansions to the law, but one of the most troubling has to do with anti-circumvention provisions. The DMCA makes it illegal to circumvent a digital lock, even if what you are doing would otherwise not be considered copyright infringement.

For example, to watch a DVD that you’ve lawfully purchased is not copyright infringement. But, it would be copyright infringement for me to use my laptop to watch a DVD in the US, because DVDs contain digital locks, and with the GNU/Linux operating system I use, my DVD software has to break those digital locks in order to show me my movie. Watching a DVD you own would not normally be copyright infringement, but if you have to break a digital lock to see it, it becomes infringement.

These troubling anti-circumvention provisions essentially allow rights holders to rewrite copyright law with a digital lock. It’s this sort of thing that caused law professor Lawrence Lessig to proclaim that “code is law.” With electronic books that have digital locks, things that might normally be considered fair use—like copying and pasting a couple paragraphs, or transferring an electronic book from one device to another—can become infringement if the action requires breaking a digital lock.

There are no anti-circumvention provisions in Canadian copyright law, but anti-circumvention has been an issue in the last two (failed) copyright bills, and in the copyright consultation conducted by the government last summer. Anti-circumvention provisions are required in order to ratify the WIPO treaties, but there’s flexibility—anti-circumvention could be linked to copyright infringement, so that circumventing a digital lock for something that would be considered fair dealing would not be considered infringement.

The government expects to table a new copyright bill this Spring, and anti-circumvention will certainly be one of the contentious issues. Whether or not it allows rights holders to invent new rights, with a broad ban on circumvention, or whether it protects fair dealing will remain to be seen.

Fair dealing

Fair dealing is another contentious issue. Uses that are considered fair dealing under the copyright act do not require permission from the rights holder. Canadian currently has a limited fair dealing provision that only applies to research, private study, criticism, review, and news reporting. A recent proposal to expand that into a more flexible concept was met with criticism from the Writers’ Union of Canada, which claimed that more flexible fair dealing would “legalize theft.” These debates have been a heated part of Canadian copyright reform.

The Potential for Electronic Reading—When is the future coming?

When faced with a fear that old sources of income will disappear with new technology, people are understandably concerned, but they too often turn to copyright law to prop up old business models and avoid the necessity of exploring new ones. The real tragedy is that the potential of electronic readers is not being met. Consumers are confronted with anti-features—readers that can’t copy/paste, that allow books to be deleted against their will, that prevent an easy transfer from device to device—and rights holders focus on trying to replicate the physical world in the digital.

I don’t think we’ll see the future of electronic publishing anytime soon. So far, we’ve only seen attempts to recreate the scarcity and limitations of the physical word—and then some. With physical books, you can buy them, keep them, mash them up, share, photocopy, as opposed to device-specific rentals, bogged down by digital locks and people who think you need their permission to read a book out loud.

The really exciting things about electronic books are the things you can’t do with paper books. Like, having a text-to-speech feature. Or sharing things you’re reading with others. Or commenting on it. Is there an electronic reader out there yet that can host a conversation thread inside of a book? Because of copyright-related fears, the focus has been on using readers as a sort of broadcast, consumption medium. They’re called “readers.” I personally don’t have any desire for a dedicated electronic device, just for reading a particular kind of text. I read Plato and Aristotle, and Aquinas and JPII, but I also read blogs and news articles and other forms of content online. Why would I want a single device for “books?”

Content comes out of its container when it goes digital, but efforts so far have centred on using copyright law to try and build containers, through locks and legislation. To let text come out of its container would unlock the real opportunities that the technology allows. A paper copy of Brittanica has to be linear; Wikipedia isn’t—it’s hyperlinked. Blog posts are as much about the conversation as they are about the initial “content,” but how many electronic books are being designed with conversation in mind?

Until we get beyond this tendency to impose artificial scarcity and digital locks on electronic books and media, we won’t see the full potential of electronic publishing.

Credit: mgifford [CC BY-SA]

Last month, NDP MP (and former member of the Grievous Angels) Charlie Angus shook up Canada’s copyright debate by proposing two reforms. Angus was outspoken against the government’s last copyright bill, but he’s attracted criticism from all sides with this latest move. But that was basically his goal—more debate on copyright reform. For musicians and other copyright holders dealing with shifts in technology, this debate is a crucial one

Flexible Fair Dealing

Fair dealing permits the use of copyrighted works for certain purposes without permission. Currently, there are only five categories that qualify: research, private study, criticism, review, and news reporting. Noticeably absent are things like parody, sampling, time or format shifting, etc. However, the Supreme Court ruled that “[fair dealing] must not be interpreted restrictively” and introduced six factors to consider. Angus’ motion (M-105) would add the words “such as” to make the list of fair dealing categories illustrative rather than exhaustive, and it would put those six factors right into the act.

Flexible fair dealing has been called for by many groups, but others still characterize it as the “legalization of theft”. Nevermind that copyright infringement isn’t theft, but American law has long since had a similar principle in the doctrine of fair use—initially common law, but incorporated in the U.S. Copyright Act of 1976, much like Angus proposes for Canada. Fair dealing/use isn’t “theft,” but part of the copyright bargain.

Flexible fair dealing would help to future-proof copyright law by accommodating new technologies, practices, and forms of expression. Fair dealing isn’t free dealing either, since the factual tests of fairness must still be met, but the worry expressed by creator groups is that it will affect royalties—hence, Angus’ other proposal.

Expanding the Levy

Angus’ private members’ bill (Bill C-499) would expand the levy on blank media (such as CDs) to include potentially any “audio recording device,” defined as:

a device that contains a permanently embedded data storage medium, including solid state or hard disk, designed, manufactured and advertised for the purpose of copying sound recordings, excluding any prescribed kind of recording device

Yet, dedicated digital audio players are quickly being replaced by multi-purpose mobile computers. Should the levy apply to iPhones as well as iPods? This definition could potentially include Blackberry, Android and even laptop or desktop computers as well. This has attracted criticism from many, including Industry Minister Tony Clement and Canadian Heritage Minister James Moore, the cabinet ministers responsible for copyright. Beyond the wide spectrum of devices, what about the variety of works? What about movies, TV shows, electronic books, and other copyrighted works that are increasingly available on electronic devices?

This reform is short-sighted. The initial levy proposed for digital audio players in 2002 (struck down by the courts—hence a bill to make it legal) was $21/GB, which would leave a 120 GB iPod (less than $300 today) with a $2520 tax. How much would this levy be, and how long until that amount becomes absurd? Of course, the levies could be lowered (though, the CD levy has increased…), but imagine how quickly legislators would adapt, compared to the effect on consumers, innovation, culture and the music business in the meantime.

The “Nuance-Free” Zone

Angus criticizes the Tories for living in a “nuance-free zone,” either being “tough on crime” (Bill C-61) or “fighting against taxes” (Moore’s comments on Bill C-499). Yet, Angus has his own two-dimensional approach to copyright. He claims,

“There are only two possible options for protecting artistic property: either you lock down and sue or you compensate.”

Angus seems to conflate two separate issues—fair dealing and remuneration. It’s as if he thinks that the levy would justify—even pay for—more flexible fair dealing. Fair dealing isn’t something to be purchased; the Supreme Court affirms it as a “user’s right.” Likewise, the compensation problem would still exist even if flexible fair dealing was already around (see: the U.S. and fair use). This isn’t about crime/tax reduction, but it isn’t about “compensation for access” either. It’s about adapting copyright law to a world where copying is the norm.

Business models based on selling and restricting copies are struggling because the Internet is a copying machine, while those who are successful aren’t relying on copyright. Leveraging technology and consumer behaviour is an alternative to litigation, locks and levies, and effective copyright reform should enable that. This bill would just set up toll booths on computers. An iTax won’t solve anyone’s problems.

What’s Next?

Private members’ bills rarely become law, and the Tories plan to table new copyright legislation this Spring. The levy expansion has been rejected by Clement and Moore, though they haven’t taken sides on flexible fair dealing. Angus wanted to kick-start the next round of conversation, and that he did. Now it’s the government’s turn.

Read the comments at RootsMusic.ca

Canadian law professor Stephen Waddams, in a well-regarded book about how we think about law, wrote that when a dispute arises about intangibles, such as copyrighted works, information, or… time,

“[T]he claimant is always eager to categorize the claim as proprietary. Thus, the conduct of the defendant is apt to be described by claimants as piracy, highway robbery, and brazen theft. This is rhetoric: the taking of a photograph, the re-broadcasting of television signals, the use of confidential information, or the copying of a design cannot, in fact or law, be piracy, robbery (on or off the highway), or theft, and if it were any of these things, the rhetoric would be unnecessary…

[...] Describing someone as a thief or trespasser is a metaphoric step in gaining property rights, and not the result of having a property right in the first place. If one already had a property right, the property owner would sue for violation of that right and would not have to strut around… blaring loudly about “piracy.”

[...]

Copyright owners [describe] their right as “intellectual property.” The purpose of advocating something as a property right is to take it outside of the need for any empirical, social justification. As a property right we do not ask about incentives, and we do not ask whether the property interest benefits the public. Property simply is and need not be justified. Those who own property rights are entitled to hunt down unauthorized users as free-riders, as criminals, as a threat to polite society just as surely as who break into our homes and steal our cars.

Copyright law isn’t about theft and clearly fenced-off property. It’s a set of social relationships between creators and the public, granting creators certain exclusive rights, for a limited time, for the benefit of everyone. Abusing the theft metaphor shifts the focus away from the fundamentals of copyright, making it difficult to have any sort of meaningful or fruitful discussion about copyright.

I think it’s possible to present an informed and intellectually honest case for stricter copyright laws, but table-thumping about how copying is stealing is neither of those things.

The post was in response to table-thumping by some members of the community that, “there’s no grey area, it’s theft,” and that “it is now completely possible for ISPs to identify and eliminate illegal file sharing.” It could be interesting if those folks show up in the comments…

When I tell someone that all of my recordings are downloadable for free, I’m often asked, “but… how will you make money?”

“Well,” I’ll respond, “since it doesn’t cost me anything, I may as well let people share and listen to my music so that they might connect with it and become interested in the associated scarcities—physical goods, the creation of new music, authenticity, personalization, live performances, etc… It makes more sense to charge for the scarce things than for the abundant. People need to hear and like music before they’re willing to buy, so I want people to download it.”

“Okay,” a musician might respond, “and you still have royalties and licensing.”

The fun begins: “Er… no, actually, my music is available royalty-free, even for commercial use.”

“Huh?”

“Yep,” I’ll continue. “There are only two requirements: attribution, and that derivative works remain under the same licence. Otherwise, people are free to do what they want.”

At this point, the person I’m talking to is either incredibly curious, or convinced that I’m certifiably insane.

Why on earth would I do this?

Copyright Conundrum

Copyright is supposed to provide an incentive for authors to create because we, as a society, see a benefit in more works being created. However, it’s been radically expanded in both depth and breadth. Unlike the original 14-year terms, copyright now extends well beyond the author’s death; works used to enter the public domain within a few decades, but now it takes a few generations. Also, it used to be that copyright only regulated large corporations—you needed a printing press or a broadcast tower to trigger the law—but now it affects the everyday activities of anyone with a computer.

It’s become an astonishingly unprecedented restriction on our culture. Can you imagine if Shakespeare had to negotiate licensing agreements for each of the stories he repurposed? Yet, some seek to criminalize sharing and we must hire lawyers to get permission just to build on the culture around us. We must pay [PDF] for the privilege of dancing to copyrighted music. James Boyle, author of The Public Domain, said that “we are the first generation to deny our own culture to ourselves.” Society has become too focused on the unnatural notion of “intellectual property.”

20th-century culture was largely passive and read-only—a broadcast culture. But it’s wonderful and natural that we seek to reinterpret and build upon the culture we find around us, and it’s exciting that digital technology makes it easier. Creation is a fundamentally social act—not a solitary one—and its social dimension is something to be celebrated; it’s a beautiful expression of our humanity. I embrace an active culture with which we all have the freedom to engage… but current copyright law makes that illegal. James Boyle also points out that “no work created during your lifetime will, without conscious action by its creator, become available for you to build upon.”

As a creator, I’ve taken that conscious action to set my work free.

Free Culture

I use a Creative Commons (CC) Attribution-Share Alike (BY-SA) licence for all of my music and writing (including this post). CC BY-SA is a free licence—not free as in price, but free as in freedom. A free culture is the opposite of a permission culture: anyone has the freedom to use, share, remix, cover, rewrite or adapt my music.

Now, “remix” can be a funny word for songwriters. For some, the immediate word association is “techno,” but derivative works can include music videos, films, new songs, covers, as well as recordings that are “remixed” in the strict technical sense. I can also take freely licensed photos from Flickr to use as artwork for my songs. “Free culture” isn’t about quirky viral videos and the responses they inspire, but the broad spectrum of possibilities when freedom and collaboration can scale. Using a free licence opens up new potential for creating art and connecting with fans by removing the legal barriers to artistic freedom and widespread collaboration.

Commercial Use

Free licences allow commercial use: my music can be sold—by me, or anyone else—and I’ve waived the right to collect royalties. This was by far the biggest hurdle.

Most CC licences aren’t free. I initially used a Noncommercial (NC) licence with my band back in 2005—that seemed like a no-brainer at the time—but I later became convinced of the problems with NC restrictions. For example, NC restrictions limit derivative works to the realm of the hobbyist; once money enters the equation, NC licences still present a permission culture (hence their non-free status). Plus, NC restrictions rule out many basic uses you might want to allow: a blog with ads or a non-profit fundraiser could both qualify as commercial, and a remix of your own NC music by someone else is off-limits to you commercially. NC restrictions don’t allow a free culture to flourish… but, they do leave the door open for music licensing opportunities.

Giving up the prospect of royalties and licensing was hard. Ultimately, I decided that free culture and new media were more important for me. Copyright restrictions apply to bloggers and webcasters as well as radio stations, and SOCAN collects from large corporate radio, but also from kids’ gymnastic clubs and buskers. I’d rather focus on free culture and the Internet as a passion and competitive edge than be confined by a read-only, broadcast-based permission model. Royalties make as much sense on the Internet as they would in a conversation; it’s not broadcast, it’s a communications medium. I’ve decided to go the free culture route with the Internet in mind, even if it means no royalties from traditional mediums.

Exploitation

CC BY-SA is a “copyleft” licence—meaning, all rights reversed; it imposes a copyright restriction against restricting people: all derivative works must be released under the same licence. Someone is free to include my music in a video and sell it, but the derivative work must also be BY-SA, so I’d be able to profit from the derivative in the same way that people can profit from my original. It’s mutually beneficial. (If someone wanted to use my work without “sharing alike,” e.g. a TV show, with many other rights holders involved, that’s one case where traditional licensing is still an option.)

In terms of someone else just selling my stuff (e.g. CDs with my music), I’ve come to view that as an opportunity rather than a liability. If Sony wanted to distribute my music, with no cost or contract on my part… who am I to complain? They’d be helping me. CC BY-SA filmmaker, Nina Paley, argues that when others make money off your content, it’s free market research. “If any [competitors] do exceptionally well, I’ll know what merch I should be selling,” she says. Paley uses the Creator-Endorsed Mark to signal to consumers which distributors are actually sharing profits with her. Brad Sucks, a Canadian BY-SA musician, has also found ways to profit while allowing commercial use.

If you’re focused on innovating and monetizing real scarcities, allowing commercial use simply presents new opportunities.

Moving Forward

Licensing my music freely was a huge decision, and I’ve only scratched the surface of my reasoning here. I may have closed many doors, but I’m excited about the doors I’ve opened. This approach isn’t going to work for everyone, but with artists like Nina Paley and Brad Sucks paving the way, I’m committed to exploring how it can work for my music.

Read the comments on Roots Music Canada

It’s just that I’m so incredibly excited and energized right now. I’m starting to move on a variety of really cool projects and endeavours.

A little over a year ago, I claimed I was about to “up the diversity” on this blog. Better late than never. Here’s me committing to actually begin talking about a Catholic case for free culture. I have been giving it a lot of thought and making lots of notes, but I just need to get over the urge to write an essay instead of blog post so that I can start getting the ideas out.

The other theme I hope to explore in depth is the full potential of a true free culture approach to transform music. I’ve had some fascinating conversations with Nathan Simpson, Roman Verzub, Matt York and Josh Newman, and I’ve been putting the pieces in place at blaise.ca/music to start turning some of these ideas into action. I plan to expand on this at length in future posts.

I feel like these two ideas will be prominent themes in much of what I do in the next few years, and beyond.

Then, there’s the work I’ve been doing on the Drupal Creative Commons module and, more recently, the new Creative Commons Canada website (hope to have something to show soon…), among many of the other cool things I get to do through Alleyne Inc. My band is showing signs of life again, and I’ve been gigging on violin. I’ve also been part of a great team with the University of Toronto Students for Life, and I’ll be putting on another pops concert with the Hart House Chamber Strings in February. The day after that, I’m headed to Philadelphia for a week-long immersion course with one of the leading scholars on the Theology of the Body.

Oh, and I’m getting married next summer.

I’m hitting the release candidate stage for version 1.0 of my life. And there are a lot of things I’m going to create.

This is as close to pregnant as I’ll ever get.

I am teeming with desire, overflowing with a yearning to release this energy, to create something beautiful. So overwhelmingly fertile, I strive for that moment of giving birth in beauty. Overcome by the potential for real unity, I move forward with purpose and resolve, with being and intention, in search of the complete, of an expression of a truly generative love.

This is creativity. This is sex. This is beauty.

More to come…

We were just talking about how SOCAN, the Canadian copyright collection society, was going after gymnastics clubs for kids using music in their practice routines. Now they’re getting some well-deserved attention for other antics. Michael Geist explains how SOCAN tried to keep its submission to the government copyright consultation secret. The organization apparently requested that its submission not be posted online, even though that was part of the consultation process. The government made it available anyways, but only by email upon request. Of course, it’s now available online elsewhere [PDF].

SOCAN’s recommendations aren’t surprising. They call for a making available right (article 22 of the submission), a broadening of the private copying levy (article 30), anti-circumvention provisions (55-56), notice-and-takedown (59), copyright term extension (60), and no further exceptions to copyright (34, 48). But rather than outright declaring war on consumers, they copy the language (poorly) of those seeking more effective copyright reform. For example, they claim that the “rights of users and creators” are already “balanced” because “the Copyright Board of Canada provides a fair mechanism to set the royalty” (45) — someone had better tell the gymnastic clubs! Another great example: They want to expand the private copying tax levy to digital audio players so that it’s “technologically neutral.” (11) No word on when they’ll want it to apply to hard drives in general. SOCAN also repeats the ridiculous argument from the Toronto copyright townhall that “unwarranted” fair dealing provisions would mean asking creators to “work for nothing:”

Copyright amendments must not set up unwarranted exemptions, or otherwise limit the copyright royalties paid… If you deprive SOCAN’s members of copyright royalties, you are basically asking over 35,000 Canadian individuals to take risks and work for nothing. That’s not realistic, and it’s not fair. (34-35)

It’s just laughable to suggest that more flexible fair dealing (i.e., something like the American concept of fair use) would mean artists not getting paid. Do artists “work for nothing” in the U.S.? Though, it should be no surprise from an organization that claims that, if you use a Creative Commons license, you “won’t get paid” and your work may become devalued. To a collection society, getting paid can only mean royalties, and the value of music can only mean… well, royalties.

Best of all, they seem nervous about Industry Minister Tony Clement, who’s given some indication that he wants to craft forward thinking policies. SOCAN recommends that the Standing Committee on Canadian Heritage have sole responsibility for copyright reform (article 66). The Heritage committee is involved in the process, but as Geist points out, this recommendation betrays some discomfort with Clement and the Industry Committee, since the Copyright Act clearly grants the Minister of Industry responsibility for copyright. So, first, we get a laundry list of maximalist demands using the language of “balanced” copyright reform, then a suggestion to ignore the Copyright Act and exclude the ministry they’re not comfortable with (you know, the one focusing on the economic concerns) from having any responsibility in reform? No wonder they wanted to keep the submission secret.

Read the comments on Techdirt.