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Lawsuit Averted As WordPress and Thesis Settle Differences Over Themes And The GPL

By Blaise Alleyne | Creative Commons Attribution-ShareAlike 2.5 Canada | Posted in Free Culture, Free Software, Law | Also tagged , , , , , , | Comments (1)
July 27, 2010 – 10:00 am

This post originally appeared on Techdirt.

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.

Free Doesn’t Mean Devalued

By Blaise Alleyne | Creative Commons Attribution-ShareAlike 2.5 Canada | Posted in Free Culture, Free Software, Music, Technology | Also tagged , , , , , , , , | Post a Comment
November 13, 2009 – 9:45 pm

I’ve tightened up my post on why free music doesn’t mean devalued music for Techdirt. If you’ve read the original, it’s largely the same content, but cleaned up a little and much more concise.

Free Doesn’t Mean Devalued:

The concept of zero took ages for societies to recognize, let alone understand. Mike has explained before how it’s been a stumbling block in economics for some libertarian and “free market” types more recently. People who think about economics in terms of scarcity get upset when abundance pushes price down towards zero, as if the economic equation were broken. But if you flip the equation and think of it as a cost of zero, you realize that the trick is to use as much of those abundant goods as possible, adding value to complementary scarcities for which you can charge. Zero doesn’t break economics, it just requires a different approach.

But artists and other creators hit a different stumbling block than libertarians (libertarian artists aside…). Zero is a problem because they feel like their art is worthless; they aren’t hung up on scarcity, they’re hung up on “devaluation.” We’ve heard it from journalists. I hear it most often from fellow songwriters. The economic theory makes them feel as though their work is just viewed as some sort of cheap commodity. The thing is, value and price are not the same. Price is monetary value, but value is so much more than money. Price is what gets driven down to marginal cost, but value factors into the demand side of the equation. Expensive things aren’t necessarily valuable, and valuable things aren’t necessarily expensive. I value oxygen a lot, but it seems silly to pay for the air I breathe each minute, given the abundant supply.

More importantly, songwriters who get hung up on “devaluation” confuse recordings with music. They equate the two. A recording is not the song, it’s just an instance of it, and a digital audio file is just an instance of the recording. Equating these reduces music to recordings to files. As important as recordings are, there’s so much more to music. When you think of a song, do you think of the recording, or a memory you had connecting with the music? Do you think of the file and how much it cost, or the emotions, people and experiences that the music conjures up? The recordings are just a means through which we experience the music. Songwriters (of all people!) should know that the value in music is so much more than the price of a recording. It’s not devaluing music to give it away for free, but it can increase its value by allowing more people to connect with it, to know, love and understand it — to value it. It’s through that experience that music is valued, not price!

Ironically, the underlying concern ends up being economic — how will we make money? A price of zero for digital audio files doesn’t mean that no one values the songwriting profession, or that no one is willing to spend money on music and keep songwriters in business. Sharing digital audio files makes the music more valuable and leads to more opportunities for monetization. When you give music away and connect with an audience, the opportunity for monetization is in the associated scarcities — access, containers, community, merchandise, relationships, unique goods, the creation of new music, etc. — by giving people a reason to buy. Getting hung up on “devaluation” is a distraction from the opportunity — the necessity — to experiment with new business models.

So, can we please stop complaining that free means devalued?

Check out the lively discussion in the comments. Also, usually I’m pretty obsessive with backlinks, but somehow I missed an obvious post worth a link: Free Doesn’t Mean Unpaid

Free Music Doesn’t Mean Devalued Music

By Blaise Alleyne | Creative Commons Attribution-ShareAlike 2.5 Canada | Posted in Free Culture, Music | Also tagged , , , , , , , , | Comments (5)
November 6, 2009 – 8:32 am

Update: A more condensed version of this post was published on Techdirt.

Mike Masnick does a great job of explaining why some libertarian and “free market” types freak out when they see a zero dollar price tag. The concept of zero took ages for societies to even recognize, nevermind understand. It’s not a number, but the absence of a number. A stumbling block for mathematics and physics in the past, it’s now misunderstood in some economic circles. Economics is often defined by scarcity, but with digital goods and “intellectual property,” we have an infinite supply — abundance instead of scarcity. Prices gets pushed towards marginal cost in a competitive market, and these “infinite” goods have a marginal cost of zero… so that’s where the price gets pushed. This upsets some people, as if it were a “divide by zero” type error that breaks the equation.

But a lack of scarcity isn’t a problem. Instead of thinking of it as forcing a price of zero, you “flip the equation” and think of it as being a cost of zero. If something can be reproduced for free, the trick is to use as much of it as possible — give it away, leverage the abundance to add value to other complementary scarce goods. Zero doesn’t break economics, it just requires a different approach. (This is all just a condensed version of Mike’s post.)

Songwriters, however, hit a different stumbling block than libertarians (songwriting libertarians aside…). Zero is a problem because they feel like their music is worthless; they aren’t hung up on scarcity, they’re hung up on “devaluation.” A lot of artistic types hear the economic theory and feel as though their work is just viewed as some sort of cheap commodity.

The thing is, value and price are not the same. Price is monetary value, but value is so much more than money. Price is what gets driven down to marginal cost, but value factors into the demand side of the equation. An expensive thing isn’t necessarily a valuable thing, and something that’s available for free isn’t necessarily without value. I value oxygen a lot, but it seems silly to pay for the air I breathe each minute, given the abundant supply.

More importantly though, songwriters who get hung up on “devaluation” confuse recordings with music. They equate the two. A recording is not the song, it’s just an instance of it, and a digital audio file is just an instance of the recording. Equating these reduces music to recordings, to files. As important as recordings are, there’s so much more to music. When you think of a song, do you think of the recording, or a memory you had connecting with the music? Do you think of the file and how much it cost, or the emotions, people and experiences that the music conjures up?

When I listen to Reflection, I am in Rosedale Valley, running a cross country practice in Grade 11 with a friend, as the meaning of the final verse hit me in all its pain and glory. When I listen to Dispatch live albums, I’m at the Hatch Shell in Boston, or Madison Square Gardens, at one of the reunion concerts. When I listen to the Good Lovelies, I’m in Ottawa at the OCFF conference in a packed hotel room full of folk musicians listening to a raw, passionate acoustic performance. You don’t connect with the files, you connect with the music. The recordings are just a means through which we experience the music.

I would hope that songwriters, of all people, could realize that the value in music is so much more than the price of a recording. It’s not devaluing music to give away your music for free, but rather increasing its value by allowing more people to connect with it, to know, love and understand it — to value it. It’s through that experience that music is valued, not price!

Furthermore, a price of zero for digital music doesn’t mean that no one values the profession, or that no one is willing to spend money on music and keep songwriters in business. When you give music away and connect with fans, the business opportunity is to monetize the associated scarcities — access, containers, community, merchandise, relationships, unique goods, the creation of new music, etc. — by giving fans a reason to buy.

Music still has value, and there are still plenty of ways to monetize it. Getting hung up about “devaluation” is a distraction from the opportunity and the need to experiment with these new business models. Recognizing that digital recordings are an infinite good and giving them away for free only makes the music more valuable, and only leads to more opportunities for monetization.

So, can we please stop complaining that freeing up music devalues it?

Canadian Human Rights Tribunal Declares Internet Hate Speech Law Unconstitutional

By Blaise Alleyne | Creative Commons Attribution-ShareAlike 2.5 Canada | Posted in Law, Technology | Also tagged , , , , , | Post a Comment
September 3, 2009 – 6:06 pm

This post originally appeared on Techdirt.

The Canadian Human Rights Tribunal has refused to enforce a controversial internet hate speech law, claiming that it’s unconstitutional. The tribunal adjudicator, Athanasios Hadjis, expressed worry back in March about the “chilling effects” that Section 13 of the Canada Human Rights Act would have on the internet. In his ruling Wednesday, he decided that the restriction imposed by Section 13 “is not a reasonable limit” within the meaning of the Canadian Charter of Rights and Freedoms, and thus, unconstitutional. Since the tribunal isn’t a real court, it can’t actually strike down the law, so Hadjis just refused to impose any penalty.

Section 13 prohibits the repeated communication of “any matter that is likely to expose a person or persons to hatred or contempt” via telephone or — since 2001 anti-terrorism measures — the internet. The section is quite controversial; neither truth nor intent are a defense, and it’s not part of the criminal code, so it tends to become a vehicle for cases that wouldn’t stand a chance in a real court. Last fall, an independent review commissioned by the Canadian Human Rights Commission itself called for Section 13 to be repealed (an epic whitewash fail), and some politicians have begun to ask for the same. For serious issues, there are other hate speech provisions in the criminal code with real defenses, handled in real courts. Section 13 makes it too easy for someone to be “dragged through the process,” as Hadjis puts it.

Not only is the section controversial, but its application to the web has been clumsy at best. Hadjis said, when applied to speech online, “suddenly, the chilling effect catches not only individuals who set up telephone messages… but just about everyone who posts anything on the internet.” Hadjis notes that telephone hate messages tend to be overt, while opinions on the internet include many borderline cases. Part of the problem is that there are no safe harbors in Canadian law (or “safe harbours,” as we Canadians would call them). Hadjis was concerned that website owners could be charged under Section 13 for user comments on message boards and blog posts. While this particular website owner doesn’t seem like all that nice of a guy (to be charitable…), twisting the law to make a site owner responsible for user posts would have set a terrible precedent. Hadjis, thankfully, had the common sense to avoid that error. Hopefully Section 13 is repealed soon, and other tribunal adjudicators take note of Hadjis’ ruling in the meantime.

Read the comments on Techdirt.

Toronto Copyright Townhall: Canadian Record Industry Mobilizes In Panic, Everyone Loses Out

By Blaise Alleyne | Creative Commons Attribution-ShareAlike 2.5 Canada | Posted in Free Culture, Law, Music, Technology | Also tagged , , , , | Post a Comment
September 1, 2009 – 12:45 pm

This post originally appeared on Techdirt.

Last Thursday, I attended the Canadian Copyright Consultation Toronto Town Hall (video). Despite the stated intention of soliciting a “breadth of perspectives,” the record industry dominated the event. Michael Geist described it as the “Toronto Music Industry Town Hall” and a local publication called it the “town hall that didn’t invite the town”. Tickets were limited and speakers chosen by lottery, yet half the speakers were from the entertainment industry — collection societies, record labels, industry lawyers. Twice as many industry representatives spoke as artists or creators. There was the odd librarian, student or programmer (and I had a chance to speak), but otherwise the participants seemed so skewed towards the same perspective that one person greeted the audience, “hello, music industry,” and some non-industry (though admittedly not very eloquent) speakers were heckled towards the end. When asked afterwards about the strong music industry presence, the Minister who ran the town hall joked, “I guess they had the night off.” There are lots of questions about the sincerity and efficacy of the consultations (though, also some indication that the government might take the time to try and get things right), but what was most disappointing, albeit least surprising, was what the entertainment industry actually had to say.

Most industry speakers presented emotional pleas, with little in the way of serious suggestions. They focused on a “right to get paid” and “fair compensation” (without talk of providing a reason to buy), while Canada was portrayed as a “lawless society,” rampant with property “theft” and hostile to “legitimate” business (despite evidence to the contrary). A writer stunningly declared that “[more flexible] fair dealing would be a disaster for creators,” while SOCAN claimed that adding “unwarranted” fair dealing provisions would be asking creators “work for nothing” (even though flexible fair dealing would be a lot like fair use in the US — hardly a disaster). The President of Warner Music Canada talked about disappearing jobs, and many industry employees painted a dire picture of colleagues and artists struggling to make ends meet (with little mention of any success stories). Yet, when the occasional concrete recommendation was made, it was to implement a notice-and-takedown system (ripe for abuse), extend the “you must be a criminal” tax blank media levy to digital audio players (an idea that’s been struck down twice), or enshrine an inducement doctrine into law — extreme measures which have provided little solace to failing businesses elsewhere.

It wasn’t argument. It was the language of moral panics.

The Canadian record industry was demanding to be lied to, to be told that more restrictive copyright laws will save their business. Though fewer and fewer people can convincingly tell the lie, they seemed perfectly capable of convincing each other that restrictive copyright legislation might somehow stop the market from changing (even with a decade of hindsight on the DMCA). It’s tragic, because hard working people who love music and love working for artists are losing their jobs, but the industry continues to block the sort of innovations that could provide it with a way forward. A lawyer described the music industry as a “copyright industry,” even though most artists and companies who are figuring out how to make money in the digital economy are successful despite copyright — not because of it.

Artist voices were few (nevermind consumer voices), which is disappointing because many Canadian creator groups are adopting more forward thinking approaches, proposing solutions that don’t involve criminalizing common consumer behaviour. Now… most creators echoed the industry in supporting the levy and its expansion to digital audio players and even ISPs, and some asked for new royalties and more collective licensing, but that’s much better than demanding stricter laws and enforcement mechanisms. The problem remains though, that although collective licensing may be a move in the right direction, short-term revenue from additional royalties and levies also increases barriers to innovation, making it harder for new sustainable long-term business models to emerge. Artists and creators need to find a way to earn money that’s based on a solid economic ground, instead of depending on levies that can quickly become absurd. That’s where the record industry should be able to help them out.

Artists and creators need to be able to experiment with new business models, but the copyright crutch gets in the way. They turn to levies and licensing because they can’t imagine how else to make money, but successes have been outside of the copyright system. Canada needs innovative companies to help artists and creators find digital business models, not to chase fictive legislative solutions. If the Canadian record industry isn’t willing to help creators with what’s next, they need to clear out of the way.

Read the comments on Techdirt.

The ‘Creative’ Technology Behind The AP’s News Registry

By Blaise Alleyne | Creative Commons Attribution-ShareAlike 2.5 Canada | Posted in Free Culture, Free Software, Technology | Also tagged , , , , , , , | Post a Comment
August 6, 2009 – 10:33 pm

This post originally appeared on Techdirt.

The Associated Press’ attempt to DRM the news is a bad idea for a variety of reasons, but its claims for the news registry’s capabilities seem pretty misguided, once you examine the technology behind it (the “magic DRM beans”). Ed Felten dug into the details of the registry’s microformat, hNews, which the AP announced a few weeks earlier, and here’s where it gets really interesting: the hNews rights field is based on the Creative Commons Rights Expression Language (ccREL).

If the AP thinks it’ll be able to build its “digital permissions framework” with Creative Commons technology, it’s in for a letdown.

I’m not sure if I’m “allowed” to quote the press release, but this is how it describes the news registry:

[It] will tag and track all AP content online to assure compliance with terms of use. The system will register key identifying information about each piece of content that AP distributes as well as the terms of use of that content, and employ a built-in beacon to notify AP about how the content is used[...]

The registry will employ a microformat… [that] will essentially encapsulate AP and member content in an informational “wrapper” that includes a digital permissions framework that lets publishers specify how their content is to be used online and which also supplies the critical information needed to track and monitor its usage.

The registry also will enable content owners and publishers to more effectively manage and control digital use of their content, by providing detailed metrics on content consumption, payment services and enforcement support. It will support a variety of payment models, including pay walls.

Microformats provide a syntax for expressing machine-readable licensing metadata in the HTML of a web page. ccREL was intentionally developed so that others could innovate freely on top of it, but the AP is trying to use it for something it’s simply not designed to do — “protect” and control. The Creative Commons has responded, explaining that ccREL is a tool for rights expression, not rights enforcement. (That doesn’t mean the AP isn’t allowed to try this, but it’s not going to work very well… it’s like trying to lock a door with posters.) Felten described the AP’s claims for the microformat as much ado about nothing, saying “the hNews spec bears little resemblance to AP’s claims about it,” and the Creative Commons clarification echoed the point:

Microformats and other web-based structured data, including ccREL, cannot track, monitor, or generally enforce anything. They’re labels, i.e. Post-It notes attached to a document, not locked boxes blocking access to the content.

There’s no “encapsulating” or “wrappers” — it’s just annotation.

This ecosystem of technology is about rights expression, not enforcement, and it’s more about telling people what you can do than what you can’t. There are tools built on top of Creative Commons technology, like FairShare, that “track and monitor” usage of content across the web, but these are search engine tools (similar to Google Alerts) rather than any sort of “built-in beacon.” Other tools, like Tynt’s Tracer (which Creative Commons blog uses), use javascript to append attribution and licensing information when you copy/paste, but that’s hardly a “wrapper.” These tools are based on the idea of granting permission, not requesting it. Participation is not enforced; anyone can remove or adjust metadata before reposting HTML, Tracer’s attribution is just plain text that can be changed (as I did when quoting the blog here), and FairShare can’t actually stop anyone from posting your content. These tools are based on a decentralized, permissive view of the web; they aren’t designed to create centralized registries and exert control.

If you re-read the AP’s description of the technology, it sounds a lot less scary, but a lot more hopeless. The tools are designed to convey further rights to users beyond what copyright allows, not further restrictions that limit user rights already granted by copyright law (e.g. fair use). This is a great way of tagging news articles, but it’s next to useless as a digital lock. They would be smart to employ this technology to make their content more usable and more valuable, but hoping it’s going to help them lock it down will only lead to disappointment.

Read the comments on Techdirt.

Electronic Arts Stages Protest of Dante’s Inferno at E3

By Blaise Alleyne | Creative Commons Attribution-ShareAlike 2.5 Canada | Posted in Catholic, Technology | Also tagged , , , | Post a Comment
June 16, 2009 – 2:57 pm

This post originally appeared on Techdirt.

At the E3 Expo a few weeks ago, Electronic Arts showcased an upcoming game, Dante’s Inferno, to awkward protests from a group of concerned Christians going under the name, “Salvationists Against Virtual and Eternal Damnation.” They had signs like “Trade in your PlayStation for a PrayStation,” “Cheat codes won’t save your soul,” and “Hell is not a game,” as well as a 1996-esque website complete with animated GIFs and multi-colored all-caps text. The protest was covered by the LA Times, the San Jose Mercury News and many gaming blogs. That sort of controversy might make the game more appealing to some… except, EA admitted that the protest was entirely staged by the viral marketing firm that they hired (though, it didn’t fool everyone).

As the popular gaming blog Joystiq puts it, there’s got to be a better way to promote the game. A faux controversy might seem like a clever idea, until people realize it’s just a publicity stunt. Plus, it doesn’t seem very smart to alienate Christians when you could be selling them the game instead (as Thomas Peters from AmericanPapist.com writes, “getting to play Dante as he slashes his way through hell? It sure beats Tetris.”). Electronic Arts recently landed in some hot water for another clever viral marketing idea, which involved shipping brass knuckles with the Godfather II press kit, despite mere possession being a first-degree misdemeanor in some states to which they were shipped. They get points for creativity, but they might want to think twice before acting on some of these ideas…

Read the comments on Techdirt.

ASCAP Thinks That Video Game Providers Should Pay Music Performance Royalties

By Blaise Alleyne | Creative Commons Attribution-ShareAlike 2.5 Canada | Posted in Free Culture, Law, Music, Technology | Also tagged , , , , , | Post a Comment
June 5, 2009 – 8:27 pm

This post originally appeared on Techdirt.

Despite claiming to represent the interests of songwriters and composers, ASCAP has consistently provided bad advice on how they should respond to digital technology and the internet. For ASCAP and many other collection societies, anything that doesn’t involve royalties seems automatically bad (despite all the success from artists who’ve been freeing up their content), and other questionable practices raise serious doubts over how royalty money is handled once collected. Now, ASCAP wants to increase the toll on video games and is encouraging video game music composers to reserve performance rights (via Michael Scott). Typically, game developers purchase rights (including performance rights) from music composers, but ASCAP’s Director of Legal Affairs, Christine Pepe, argues that the practice no longer makes sense. She suggests adopting the model that was developed for film and television, where composers and songwriters often negotiate contractual provisions for performance royalties.

Not surprisingly, there are some major problems with the article.

First of all, Pepe cites Rock Band, Guitar Hero, Dance Dance Revolution and Stubbs the Zombie to highlight the prominence of music in video games nowadays. These are all cases of popular songs being used in games, rather than music being written for games… yet she’s presumably addressing people who write music for video games. Early versions of Guitar Hero used covers to make licensing easier, so composers weren’t even part of the negotiation. This licensing is about synchronization or mechanical rights — not performance rights. Labels have complained that these games aren’t paying enough for the music, but it’s the games that increase the value (and sales) of the music, not the other way around. These games could simply choose other good music and still be popular. ASCAP clearly doesn’t understand that, while music can add value to games, games add value to music. Pepe says that older video game music is “probably difficult to imagine… in a context other than the games themselves.” She isn’t trying very hard to use her imagination, as there are plenty of examples of older video game music having a life outside of the games. Would anyone care about the Mario theme if it weren’t part of the game? The lesson from old video game music isn’t that performance royalties used to be negligible. It’s that success for a video game music composer isn’t just about writing good music, but about having that music associated with successful games.

Second, Pepe’s argument that there’s a public performance of music in video games seems like a real stretch:

Now, because video games are being delivered by entities other than developers and on transmission-based platforms such as the Internet, there is no reason that composers of music for video games should sign away their rights. Take for instance, X-Box — it is now fully integrated with the Internet and allows users to stream games (instead of just purchase the physical product in the store). Internet-based services that now offer streaming of video games are causing the music contained in such games to be publicly performed. The providers of these video game services typically have or should have a license from ASCAP (and possibly other public performance right organizations). [emphasis mine]

What does “streaming” a video game even mean? A video game is interactive; it’s not a one-way broadcast, but communication over a network. Is Pepe suggesting that there’s a public performance simply because software communicates over the internet? Email happens on the internet. Is that a public performance? There’s such a thing as private communication over a network. Games like Gears of War, for example, allow you to play in co-op mode with another player in the same room or online. I find it hard to believe that the location of player two would determine whether or not the music is being publicly performed. What about a multiplayer game on a local area network? Why would that be any different, in terms of a public performance of music, from a multi-player game with everyone in the same room? Simply playing a game over a network doesn’t make it a performance, nor does that make it public.

But maybe Pepe isn’t referring to having players in remote locations, but having games in remote locations. She uses the Xbox as an example, which seems odd because, as I understand it, the Xbox Live Arcade lets you download games, but that’s quite different from streaming. It’s the video game equivalent of the iTunes Music Store, not an internet radio station. Digital distribution doesn’t mean public performance — the game is still played locally, just off a hard drive instead of a plastic disk.

Okay, so maybe Pepe was trying to talk about a platform that actually hosts and runs games on a remote computer. Still, it’s pretty hard to believe that just because software is run remotely it’s a public performance of the music, when the act of hearing the music would be indistinguishable if the software were run locally. Is it a “public” if I check my email using the Gmail web interface instead of Thunderbird? I have a music server running at home which lets me login and listen to my library from anywhere — is using that a public performance? Do I need a license to listen to my own library because it’s on a different hard drive? How does playing music in a video game become a public performance simply because of the hard drive the game resides on or the CPU that runs the process?

Furthermore, let’s pretend there’s actually public performance taking place. Is it even in a composer’s best interest to demand these royalties? (This is not about a composers “right to get paid;” composers are getting paid — upfront.) Making it harder for people to hear your music is rarely a good idea. Like with theme music for WKRP in Cincinnati or House in the UK, game developers may just seek other music if the licensing requirements are too burdensome. Focusing on getting every penny for every use of the music ignores the value of being included in a game, film or television show. The lesson from video game music of the past and present is that having your music included in a great game is extremely valuable. Not only are you getting paid to be promoted, but the game developers are even doing the hard work of getting fans to connect with the music! Rather than demanding compensation for every use, composers and songwriters should look at other ways to take advantage of the opportunity to make more money from the increased fan base. If ASCAP were really representing their interests, it would be helping them do this instead of pretending that the internet and video games are like television and insisting on performance royalties which will only get in the way of new business models. Of course, don’t expect ASCAP to promote anything that isn’t about increasing royalties. If your only tool is a hammer, everything looks like a nail… [or rather, as Hulser puts it: "if the only tool you sell is a hammer, you need everyone to keep buying nails."]

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What is Cyberbullying Anyways?

By Blaise Alleyne | Creative Commons Attribution-ShareAlike 2.5 Canada | Posted in Law, Technology | Also tagged , , | Post a Comment
May 11, 2009 – 5:40 pm

This post originally appeared on Techdirt.

We’ve been hearing a lot about “cyberbullying” lately. Cases like the Lori Drew incident have got politicians and teachers all over looking to pass vague new rules and laws (or twist existing ones) to punish behavior they feel is wrong. The problem is, no one really seems to be able to define the term, at least not in a way that really distinguishes it from simply being a jerk online, so it’s encouraging to see a paper from a vice president of Stetson University, Darby Dickerson, calling on educators to slow down and define cyberbullying before creating policies about it, though I’m not sure she gets to the heart of the issue. Dickerson observes that people have been using the term often and easily, without any real consensus on what it includes and what it doesn’t. In the absence of a generally accepted scholarly or legal definition, she calls on universities to take four steps before creating a cyberbullying policy:

  1. consider the types of activity that might be included within the term,
  2. consider the type of harm,
  3. consider the level of intent required by the offender,
  4. determine the extent that it will address off-campus conduct.

This is good advice and Dickerson does a pretty good job of outlining the concerns. She notes that conduct such as “cyberstalking” or “cyberthreats” might be included, while issues of fraud probably shouldn’t be, arguing that “not all misconduct that occurs online should be labelled as cyberbullying.” She cautions institutions to remember “free speech and related constitutional concerns.” She’s skeptical of extending the term to include simply being a jerk online, and he questions labeling students as cyberbullies who don’t display real malice or hostility. She also raises lots of important questions about what it means to be “off-campus” in cyberspace. Dickerson concludes by urging institutions to clearly define the term before enacting policies, highlighting many important questions that must be answered first.

Yet… Dickerson ignores one major consideration: why have a separate policy for cyberbullying anyway? It seems to me that in order to consider these issues sanely, we need to stop pretending they’re separate things simply because we apply a “cyber” prefix to them. What’s a “cyberthreat?” How is that different from a threat in general? Is a “cyberthreat” just a threat made online? What if it’s made with a cell phone instead? What about a plain old telephone? Yes, the medium must be considered (“you’re going to die” is different when shouted in a playground than written in letters cut out of a magazine…), but do we create separate terms or policies for each medium? We do often need to re-examine our laws and policies in the face of new technologies, but it rarely makes sense to have separate “cyberpolicies” instead of ensuring that existing policies are adapted to handle the new technologies. Why not ensure that existing harassment policies cover real harassment that occurs online instead of creating a new “cyberharassment” policy? Without a consideration of the difference between cyberbullying and bullying in general at the heart of this discussion, people run the risk of spending their energy blaming the technology and grandstanding, creating new policies with troubling unintended consequences rather than addressing the real issue, which often may well just be plain old bullying in a new context. The new context can certainly present new challenges that might warrant policy changes, but people should be careful not to get distracted from the issue of bullying just because it has “cyber” tacked onto the front.

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News Station Falls For April Fool’s Prank, Turns to DMCA As Remedy

By Blaise Alleyne | Creative Commons Attribution-ShareAlike 2.5 Canada | Posted in Law, Technology | Also tagged , , , , , , , , | Post a Comment
April 15, 2009 – 3:38 pm

This post originally appeared on Techdirt.

Improv Everywhere, a comedic performance art group based in New York, has a history of pulling off hilarious and impressive “scenes of chaos and joy.” Running “missions” such as the annual “No Pants Subway Ride,” a food court musical, sending 80 people into Best Buy dressed as employees and getting 200 people to “freeze” during rush hour in Grand Central station, these guys are masters of the flash mob and the harmless prank. Last April, in a mission called “Best Game Ever,” they showed up at a little league baseball game with signs, peanut vendors, programs and even an NBC sponsored jumbotron with live commentary and player stats to turn an ordinary event into something extraordinary.

Building on that theme, Improv Everywhere’s latest mission was to create the “Best Funeral Ever,” to pick a random funeral from the obituaries and show up to make it “truly awesome.” It sounds terrible, and the video is pretty horrifying… until you realize it’s from April 1st. The next day, they confirmed it was an April Fool’s joke and that it wasn’t a real funeral — all of the “family members” were actors. Lots of people fell for it (I definitely did at first), but best of all was the local CW 11 news team that covered the YouTube video as if it were a real funeral. Charlie Todd, founder of Improv Everywhere, uploaded a video of the newscast with the following commentary:

So basically the extent of their reporting is watching a video on YouTube and then describing it as fact on air. They didn’t bother to email Improv Everywhere for comment, call the cemetery to verify, or try to get a quote from the”family.” They just watched the video and threw it on TV. Great journalism!

The story was on the news channel’s website too, but was later removed without any explanation or correction. Now, two weeks later, Todd has received a copyright notice from YouTube that his video of the newscast was removed due to a copyright claim from Tribune (the station’s parent company). First of all, it’s pretty silly to try to hide the mistake rather than owning up to it and posting a correction (Streisand Effect anyone?). But beyond that, it’s pretty ironic and hypocritical that the news organization, which used the Improv Eveywhere video without permission or even proper attribution, would send a take-down notice to the owner of the that video who was commenting on their commentary. Todd writes,

It’s OK for them to air content that we shot and own, but it’s not OK for me to upload their footage of the content they took from me? It’s “fair use” for the news to take a video off of YouTube and broadcast it, but it’s not “fair use” for a citizen to expose their poor reporting on his own content?

Fair use or not, Tribune just found a great way to draw more attention to the fact that their “journalists” fell for the prank and seem to be pretty embarrassed about it.

Read the comments on Techdirt.

Creative Commons Attribution-ShareAlike 2.5 Canada
This work by Blaise Alleyne is licensed under a Creative Commons Attribution-ShareAlike 2.5 Canada.