Post Intellectual Protectionism

What is the attribution revolution?

Tuesday, February 3rd, 2015

Elog.io suggested tweet:

I believe in giving and receiving credit for photographs online. Do you? Join the #attributionrevolution – http://elog.io/40m/

Down with the romance of authorship and the ideas that credit is due (as suggested at the link) and that information propertization and the legal system are appropriate mechanisms for encouraging credit (as suggested by licenses mentioned in the campaign which condition free speech on providing attribution).

But I support elog.io despite a bit of ugly rhetoric in its messaging because the technology is fundamentally about making provenance available on demand — undermining the rationale for consciously giving credit or making lack of explicit credit a cause for legal action.

The real attribution revolution has nothing to do with believing that credit is due anyone, and everything to do with attribution (in multiple senses, but including work-creator relationship identification) becoming inescapable, at least not without great and very careful effort. Elog.io is the tip of the top of the iceberg of image and other huge databases (in a sense literally: elog.io apparently is an open database, while others millions of times larger are opaque, submerged beneath corporate and government seawater) and techniques like deep learning and stylometry make universal attribution not only feasible but seemingly inevitable. I don’t know whether this is on net a good or bad thing — but it is the real attribution revolution.

14 months ago I railed against the attribution condition of some open and semi-open licenses (emphasis added):

Do not take part in the debasement of attribution, and more broadly, provenance, already useful to readers, communities of practice, and publishers, by making them seem mere objects of copyright license compliance. If attribution is useful, it will be provided. If not, robots will find out. Rarely does anyone comply with the exact legal requirements of the attribution term anyway, and as a licensor, you probably won’t provide the information needed by licensees to easily comply. Plus, the corresponding icon looks like a men’s bathroom sign.

The elog.io campaign page for example: it does not “include a copy of, or the Uniform Resource Identifier (URI) for, this License with every copy of the Work You Distribute or Publicly Perform” nor does it provide “the URI, if any, that Licensor specifies to be associated with the Work, unless such URI does not refer to the copyright notice or licensing information for the Work” — in other words, it names the works it uses and the licenses it uses them under, but does not link to those works and licenses (quotes from CC-BY-3.0).

The other reason I support elog.io (yes visit that campaign page, give, and ignore the utter triviality of attribution license non-compliance) is that it is focused on provenance for open works (freely licensed or in the public domain — with caveat that I haven’t checked whether it includes semi-open works) and is itself an open source/open data project — provenance for the commons, and commons for the provenance.

Much more work in this area is needed, especially with a focus on high value open works (e.g. premium video) and creating high value open works — I mean by creating network effects around open works, not creating the works themselves. But even a still image focused project could help a bit — every frame of every open premium video could be included in the database, and any use metrics that can be extracted can be used to document and thus abet popularity.

Libre Graphics World has a long interview with elog.io founder Jonas Öberg that is well worth reading. Separately, there is big news not about but very pertinent to elog.io (which also perhaps explains why the elog.io campaign is only attempting to raise $6,000): Öberg is returning to work at the Free Software Foundation Europe (of which he is a co-founder and will be executive director; I had the pleasure of working with him a bit in between at Creative Commons, where he was European coordinator).

I don’t know the FSFE that well, but my impression is very positive, in particular its engagement in politics as public policy, not only the petite politics of individual developers choosing particular licenses and individual users rejecting proprietary software. Congratulations to Jonas on both the elog.io campaign and the FSFE position, and hoping for great success in both. Especially the latter could have an important role in making the real attribution revolution relatively beneficent.

Happy GNU Year & Public Domains Day

Thursday, January 1st, 2015

This Public Domain Day I recommend watching a 2005 lecture or corresponding 2006 journal article Enriching Discourse on Public Domains (summary) by Pamela Samuleson.

The video was only published by Duke Law (which also hosts the main U.S.-centric public domain day page) to their YouTube channel a month ago. Based on the first version (2013-01-02) of my attempted summary, I read the paper the day after my public domain day post 2 years ago, Public Domains Day, which riffed on dictionary definitions.

Samuelson outlines 13 meanings found in law review articles (see the summary for a quick listing) and points out some benefits and one cost of accepting multiple definitions:

+ avoid disputes about “the” correct or one true definition
+ broadened awareness of public domains and public domain values
+ facilitation of context-sensitive discussion
+ enable nuanced answers to questions about various public domains (eg shrinking or not?)
+ possibility of gaining insight into public domain values through consideration of different public domains (deemed most important by author)
– possible confusion concerning what a communicator means by “public domain”

In the lecture Samuelson says it took a long time for her to accept multiple definitions, in part after realizing that other fields such as property law successfully use multiple context-dependent definitions. I’d like to add a plus to the list:

+ language is fun, play with it!

Hectoring people for not using the deemed-by-you to be the one true definitions of the correct words is the opposite of fun. I do tend to use nonstandard words and phrases such as “copyrestriction”, “inequality promotion”, “intellectual freedom infringement”, “intellectual parasite”, and “intellectual protectionism” in order to make a point and have fun, but have descended to hectoring at times (and probably have been perceived as having done so more). I will from now make more of an effort to use terms other people use, or when not, give a fun and non-hectoring rationale. In the meantime, I will say that though I agree with many individual points made concerning word avoidance, I find such neither fun nor welcoming nor helpful in convincing anyone that freedom and equality need to be the dominant objectives of information policy.

At the beginning of the lecture Samuelson is given an introduction lauding her work, initially lonely but presented in 2005 as central, toward making intellectual property scholarship discourse consider the value of the various public domains and costs of expanding (scope, duration, protections) intellectual property rights. I have long been a fan of Samuelson’s work, but the introduction served to remind me of how unsatisfied I am with what still constitutes the liberalizing reform (which itself is possibly central, but I am too ignorant of the breadth of IP scholarship, which surely includes much so-called “maximalism”, to say) line:

  • acknowledgement that we can say little about the net benefits of IP
  • but it is surely “unbalanced” toward protection now
  • so it needs balancing and tuning
  • but of course IP is crucial so genuflect to drugs and movies
  • (largely through omission) commons are a band-aid and not central to reform
  • (largely through omission) freedom and equality not the central objectives

Of course not, as then we would have commons scholarship, not IP scholarship. I contend that pro-commons policy and products are the most feasible, sustainable, and overall best reforms and that freedom and equality should be the dominant objectives — I want the innovations and entertainment produced by a freedom respecting regime — surely meaning substantially less monopoly, hopefully a bit less embarrassing spectacle.

Image from last year, with ‘s’ added to ‘domain’; I’ve written enough recently about ‘GNU’ (signifying software freedom, not the GNU project strictly speaking).

Happy GNU Year & Public Domain Days

Defensive Patent License 1.1 w/diff

Tuesday, December 9th, 2014

13 months ago I wrote about the Defensive Patent License, in particular in relation to free/open source software (followup, 1993 predecessor). Today the DPL project released DPL 1.1 and announced the first licensor; see Internet Archive and EFF posts.

(The EFF post references its earlier guide to alternative patent licensing which I meant to critique, probably along lines of a partially overalpping guide to reform proposals, see patent reform, parts deficient in commons and compare with protect commons from patents. I noticed today that one of the other alternative licensing schemes, License On Transfer, seems to be getting some uptake.)

Most of what I wrote previously about the DPL concept still applies with DPL 1.1 (interesting concept, possibility of substantial good impact in long term). The new version makes one major improvement (especially in relation to FLOSS) — the exclusion of “clone” products or services from the license grant has been removed. Another small (as in a -3 words difference) improvement is that alleging patent invalidity against another DPL user no longer breaches one’s licenses (only alleging infringement does), invalidation being a defensive tactic.

DPL 1.1 also adds the requirement of explicit acceptance, which strikes me as burdensome: one must research licensed patents in order to figure out which DPL users to contact with acceptance, or regularly contact all known DPL users with acceptance of all licensed patents. I understand from the DPL 1.1 announcement telecon that formal acceptance was added because the license grant is more likely to stand up in court with such explicit acceptance, with that more likely assessment based on differences between patent and copyright, and between clubs and public licenses — and further that the “contact all known DPL users” practice will in the future be facilitated by the DPL website.

Finally, a very minor issue: DPL 1.1 reproduces the GPL’s confusing three-option version compatibility scheme (this-version-or-later, only-this-version, or any-version-if-none-specified). If one must have options, I consider less confusing this-version-or-later as default, with option to explicitly mandate only-this-version.

Congratulations and thanks to Jason Schultz, Jennifer Urban, Brewster Kahle, John Gilmore, and others for getting the DPL into production. I hope it is wildly successful; check out the DPL website and help update the Wikipedia article.

Following is a wdiff between DPL 1.0 and 1.1 in two parts (because 1.0 put definitions at the beginning, 1.1 puts them at the end) below, excluding 1.1’s preface, which has no equivalent in 1.0.

DPL 1.0-1.1 wdiff: Grant, conditions, etc.

[-2.-]{+1.+} License Grant

Subject to the conditions and limitations of this [-License and upon-]
[-affirmative assent to the commitments specified in Section 1.7 from an-]
[-individual DPL User,-] {+License,+} Licensor hereby
grants and agrees to grant to [-such-] {+any+} DPL User {+(as defined in Section 7.6) who+}
{+follows the procedures for License Acceptance (as defined in Section 1.1)+}
a worldwide, royalty-free, no-charge, non-exclusive, irrevocable (except
as stated in Sections [-3(e)-] {+2(e)+} and [-3(f))-] {+2(f))+} license, perpetual for the term of
the relevant Licensed Patents, to make, have made, use, sell, offer for
sale, import, and distribute Licensed Products and Services that would
otherwise infringe any claim of Licensed Patents. A Licensee’s sale
of Licensed Products and Services pursuant to this agreement exhausts
the Licensor’s ability to assert infringement [-by-] {+against+} a downstream
purchaser or user of the Licensed Products or Services.

[-2.1-] {+Licensor’s+}
{+obligation to grant Licenses under this provision ceases upon the arrival+}
{+of any applicable Discontinuation Date, unless that Date is followed by+}
{+a subsequent Offering Announcement.+}
{++}
{+1.1+} License Acceptance

In order to accept this License, Licensee must {+qualify as a DPL User+}
{+(as defined in Section 7.6) and must+} contact Licensor via the
[-contact-] information
provided in [-Section 1.16 and-] {+Licensor’s Offering Announcement to+} state affirmatively that
Licensee accepts the terms of this License. Licensee must also {+communicate+}
{+the URL of its own Offering Announcement (as defined in Section 7.13) and+}
specify whether it is accepting the License to all Licensor’s Patents or
only a subset of those Patents. If Licensee is only accepting the License
to a subset of Licensor’s Patents, Licensee must specify each individual
{+Patent’s country of issuance and corresponding+} patent [-by patent number.-]
[--]
[-3.-] {+number for which+}
{+it is accepting a License. There is no requirement that the Licensor+}
{+respond to the Licensee’s affirmative acceptance of this License.+}
{++}
{+2.+} License Restrictions

Notwithstanding the foregoing, this License is expressly subject to and
limited by the following restrictions:

(a) No Sublicensing. This License does not include the right to sublicense
any Licensed Patent of any Licensor.

(b) License Extends Solely to Licensed Patents in Connection with Licensed
Products and Services. For clarity, this License does not purport to
grant any rights in any Licensor’s copyright, trademark, trade dress,
design, trade secret, other intellectual property, or any other rights of
Licensor other than the rights to Licensed Patents granted in Section 2,
nor does the License cover products or services other than the Licensed
Products and Services.  {+For example, this License would not apply to+}
{+any conduct of a Licensee that occurred prior to accepting this License+}
{+under Section 1.1.+}

(c) Scope. This License does not include Patents with a priority date
or Effective Filing Date later than Licensor’s last Discontinuation
Date that has not been followed by a subsequent Offering Announcement
by Licensor.

(d) Future DPL Users. This License does not extend to any DPL User whose
Offering Announcement occurs later than Licensor’s last Discontinuation
Date that has not been followed by a subsequent Offering Announcement
by Licensor.

(e) Revocation and Termination Rights. Licensor reserves the right to
revoke and/or terminate this License with respect to a particular Licensee [-if:-]
{+if, after the date of the Licensee’s most recent Offering Announcement:+}
{++}
{+i.+} Licensee makes any Infringement Claim, not including Defensive Patent
Claims, against a DPL User; or

{+ii.+} Licensee {+assigns, transfers, or+} grants an exclusive [-license,-]
[-    with the right to sue, or assigns or transfers-] {+license for+}
a Patent to an entity or individual other than a DPL User without
conditioning the [-transfer-] {+assignment, transfer, or exclusive license+} on the [-transferee-]
{+recipient+} continuing to abide by the terms of this [-License.-] {+License, including but+}
{+not limited to the revocation and termination rights under this Section.+}

(f) Optional Conversion to FRAND Upon Discontinuation. [-As-] {+Notwithstanding+}
{+any other provision in this License, as+} of any particular Licensee’s
Discontinuation Date, Licensor has the right to convert the License of
that particular Licensee from one that is royalty-free and no-charge to
one that is subject to Fair, Reasonable, And Non-Discriminatory (FRAND) [-terms.-]
[--]
[-4.-]
{+terms going forward. No other terms in the license may be altered in+}
{+any way under this provision.+}
{++}
{+3.+}        Versions of the License

[-4.1-]

{+(a)+} New Versions

The DPL [-Foundation is-] {+Foundation, Jason M. Schultz of New York University, and Jennifer+}
{+M. Urban of the University of California at Berkeley are+} the license [-steward. No-]
{+stewards. Unless otherwise designated by one of the license stewards,+}
{+no+} one other than the license [-steward-] {+stewards+} has the right to modify or publish
new versions of this License. Each version will be given a distinguishing
version number.

[-4.2-]

{+(b)+} Effect of New {+or Revised+} Versions

[-Licensed Products and Services-]

{+Any one of the license stewards+} may {+publish revised and/or new versions+}
{+of the DPL from time to time. Such new versions will+} be [-used, made, sold, offered for sale,-]
[-imported, or distributed under-] {+similar in spirit+}
{+to+} the [-terms-] {+present version, but may differ in detail to address new problems+}
{+or concerns.+}
{++}
{+Each version is given a distinguishing version number. If Licensor+}
{+specifies in her Offering Announcement that she is offering a certain+}
{+numbered version+} of the [-version-] {+DPL “or any later version”, Licensee+}
{+has the option+} of {+following+} the [-License-]
[-originally accepted pursuant to Section 2.1,-] {+terms and conditions either of that+}
{+numbered version+} or [-under-] {+of any later version published by one of+} the [-terms-] {+license+}
{+stewards. If Licensor does not specify a version number+} of {+the DPL in+}
{+her Offering Announcement, Licensee may choose+} any
[-subsequent-] version {+ever+} published
by {+any of+} the license [-steward.-]
[--]
[-5.-] {+stewards.+}
{++}
{+4.+}        Disclaimer of Claims Related to Patent Validity and [-Noninfringement.-]
{+Noninfringement+}

Licensor makes no representations and disclaims any and all warranties
as to the validity of the Licensed Patents or [-that-] {+the+} products or processes
covered by Licensed Patents do not infringe the patent, copyright,
trademark, trade secret, or other intellectual property rights of any
other party.

[-6.-]

{+5.+}        Disclaimer of [-Warranties.-] {+Warranties+}

UNLESS OTHERWISE MUTUALLY AGREED TO BY THE PARTIES IN WRITING,
LICENSOR OFFERS THE PATENT LICENSE GRANTED HEREIN “AS IS” AND
MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND CONCERNING THE
LICENSED PATENTS OR ANY PRODUCT EMBODYING ANY LICENSED PATENT, EXPRESS
OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION,
WARRANTIES OF TITLE, [-MERCHANTIBILITY,-] {+MERCHANTABILITY,+} FITNESS FOR A PARTICULAR PURPOSE,
NONINFRINGEMENT, OR THE PRESENCE OR ABSENCE OF ERRORS, REGARDLESS OF THEIR
DISCOVERABILITY. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED
WARRANTIES, IN WHICH CASE SUCH EXCLUSION MAY NOT APPLY TO LICENSEE.

[-7.-]

{+6.+}        Limitation of [-Liability.-] {+Liability+}

LICENSOR SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM OR RELATED TO
THIS LICENSE, INCLUDING INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR
SPECIAL DAMAGES, WHETHER ON WARRANTY, CONTRACT, NEGLIGENCE, OR OTHERWISE,
EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
PRIOR TO SUCH AN OCCURRENCE.

DPL 1.0-1.1 wdiff: Definitions

[-1.-]{+7.+} Definitions

[-1.1-]

{+7.1+} “Affiliate” means a corporation, partnership, or other entity in
which the Licensor or Licensee possesses more than fifty percent (50%) of
the ownership interest, representing the right to make the decisions for
such corporation, partnership or other entity which is now or hereafter,
owned or controlled, directly or indirectly, by Licensor or Licensee.

[-1.2  “Clone Products or Services” means products or services of-]
[-Licensee that include the same or substantially identical functionality of-]
[-all or a commercially substantial portion of a prior released product or-]
[-service of a Licensor and implement the same or a substantially identical-]
[-proprietary user interface of the prior product or service.-]
[--]
[-1.3-]

{+7.2+} “Defensive Patent Claim” means an Infringement Claim against a
DPL User made in response to a pending prior Infringement Claim by said
DPL User against the asserter of the Defensive Patent Claim.

[-1.4-]

{+7.3+} “Discontinuation Announcement” means a DPL User’s announcement
that:

{+(a)+} declares the DPL User’s intent to discontinue offering to license
its Licensed Patents under the DPL, effective as of the Discontinuation
Date; and

{+(b)+} contains the DPL [-User's-] {+User’s+} contact information for licensing purposes;
and [-is submitted to the DPL-]
[-    Website via the Websites's official email address-]

{+(c)+} at least 180 days prior to [-a-] {+the+} Discontinuation [-Date;-] {+Date is posted to a+}
{+publicly accessible website;+} and

{+(d)+} at least 180 days prior to the Discontinuation Date is [-posted to a publicly accessible-]
[-    indexed-] {+communicated+}
{+reasonably and promptly, along with the URL of the+} website [-controlled-] {+mentioned in+}
{+subsection (c) of this provision,+} by the {+discontinuing+} DPL User [-using a URL accessible-]
[-    via at least the following syntax: "http://www.NAME.com/DPL" or-]
[-    "http://www.NAME.com/defensivepatentlicense" where "NAME" is-] {+to every+}
{+Licensor of+} a [-name-]
[-    commonly associated with-] {+Patent to which+} the {+discontinuing+} DPL [-user, such as-] {+User is+} a [-company name.-]
[--]
[-1.5-] {+Licensee.+}
{++}
{+7.4+} “Discontinuation Date” means the date a DPL User specifies in
[-their-]
{+its+} Discontinuation Announcement to discontinue offering to license its
Licensed Patents under the DPL, which must be at least 180 days after
the date of an individual or entity’s most recent Discontinuation
Announcement.

[-1.6-]

{+7.5+} “DPL” and “License” mean the grant, conditions, and
limitations herein.

[-1.7-]

{+7.6+} “DPL User” means an entity or individual that:

{+(a)+} has committed to offer a license to each of its Patents under the [-DPL, or, if such entity or individual has no Patents, has-]
[-    committed to offer a license to any Patents it may obtain in the-]
[-    future under the-]
DPL; and

{+(b)+} has declared such commitment by means of an Offering Announcement; and

{+(c)+} if the entity or individual has made a Discontinuation Announcement,
the Discontinuation Date has not yet occurred; and

{+(d)+} has not engaged in the conduct described in either Sections [-3(e)(i)-] {+2(e)(i)+}
or [-3(e)(ii).-]
[--]
[-1.8 “DPL Website” means the website-]
[-at http://www.defensivepatentlicense.org,-]
[-http://www.defensivepatentlicense.com, or any future site designated by-]
[-the DPL Foundation.-]
[--]
[-1.9-] {+2(e)(ii).+}
{++}
{+7.7+} “Effective Filing Date” is the effective filing date determined
by the applicable patent office that issued the relevant Licensed Patent.

[-1.10 “Foundry Services or Products” means services provided by-]
[-Licensee to, or products manufactured by Licensee for or on behalf of,-]
[-a specific third party, using designs or specifications received in-]
[-a substantially completed form from that third party, for resale or-]
[-relicense to or on behalf of that third party. This definition will not-]
[-apply when:-]
[--]
[-    Licensee or its Affiliate owns the design or specification of such-]
[-    service or product and the service or product is not specifically-]
[-    designed for commercial exploitation substantially only by such third-]
[-    party; or such design or specification resulted from a bona fide joint-]
[-    development or joint participation between Licensee or its Affiliate-]
[-    and such third party, including but not limited to a standards body-]
[-    or community organization and the resulting products, services or-]
[-    components provided by Licensee or its Affiliate meet the definition-]
[-    of Licensed Services Product or Products as set forth herein; or-]
[-    the third party recipient of the products or services is a DPL User.-]
[--]
[-1.11-]

{+7.8+} “Infringement Claim” means any legal action, proceeding or
procedure for the resolution of a controversy in any jurisdiction in
the world, whether created by a claim, counterclaim, or cross-claim,
alleging patent [-infringement or patent invalidity.-] {+infringement.+} Such actions, proceedings, or procedures
shall include, but not be limited to, lawsuits brought in state or
federal court, binding arbitrations, and administrative actions such as
a proceeding before the International Trade Commission.

[-1.12-]

 {+7.9+} “Licensed Patents” means any and all Patents (a) owned or
 controlled by Licensor; or (b) under which Licensor has the right
 to grant licenses without the consent of or payment to a third party
 (other than an employee inventor).

[-1.13-]

{+7.10+} “Licensed Products and Services” means any products, services
or other activities of a Licensee that practice one or more claims of
one or more Licensed Patents of a [-Licensor, but excluding Foundry Services-]
[-or Products and Clone Products or Services.-]
[--]
[-1.14-] {+Licensor.+}
{++}
{+7.11+} “Licensee” means any individual, corporation, partnership or
other entity exercising rights granted by the Licensor under this License
including all Affiliates of such entity.

[-1.15-]

{+7.12+} “Licensor” means any individual, corporation, partnership or
other entity with the right to grant licenses in Licensed Patents under
this License, including any Affiliates of such entity.

[-1.16-]

 {+7.13+} “Offering Announcement” means a Licensor’s announcement that:

{+(a)+} declares the Licensor’s commitment to offer a [-license to-] {+Defensive Patent+}
{+License for any of+} its Patents
    [-under the DPL, or, if such Licensor has no Patents, the commitment to-]
[-    offer a license-] to any [-Patents it may obtain in the future under the-]
[-    DPL;-] {+DPL User;+} and

{+(b)+} contains the Licensor’s contact information for licensing purposes;
and [-is submitted to the DPL Website via the Website’s-]
[-    official email address; and-]

{+(c)+} is posted to a publicly accessible
    [-indexed website controlled by Licensor using a URL accessible-]
[-    via at least-] {+website.+}
{++}
{+An Offering Announcement may, but is not required to, specify the+}
{+particular version of the DPL that+} the [-following syntax: "http://www.NAME.com/DPL" or-]
[-    "http://www.NAME.com/defensivepatentlicense" where "NAME"-] {+Licensor+} is {+committed to+}
{+offering. It may also specify+} a [-name-]
[-    commonly associated with Licensor, such as a company name.-]
[--]
[-1.17-] {+particular version of the DPL “or any+}
{+later version” to allow Licensees to accept subsequent new or revised+}
{+versions of the DPL.+}
{++}
{+7.14+} “Patent” means any right, whether now or later acquired,
under any national or international patent law issued by a governmental
body authorized to issue such rights. For clarity, this definition
includes any rights that may arise in patent applications, utility
models, granted patents, including, but not limited to, continuations,
continuations-in-part, divisionals, provisionals, results of any patent
reexaminations, and reissues, but excluding design patents or design
registrations.

prioritize(projects, freedom_for_all_computer_users)

Monday, December 8th, 2014

Last week the Free Software Foundation published its annual appeal, which includes the following:

In another 30 years, we believe that we can achieve our goal. We believe that free software can be everywhere, and that proprietary software can go the way of the dinosaur. With the experience we’ve gained, and our community surrounding us, we can win this.

My immediate reaction: I’d love to see the last sentence expanded. How exactly?

Sadly I do not live in a world that laughs at any fundraising appeal lacking an explicit theory of change and only esteems those that one can bet on. At least the FSF has a goal. Perhaps its surrounding community can figure out what it will take to achieve that goal.

Helping “the FSF stay strong for 30 more years” is plainly insufficient, though of course I hope the FSF does stay strong for decades and encourage helping financially. The entire free software movement on its current trajectory is insufficient; some of its staunchest advocates predict a “dark ages” of software freedom (e.g., Bradley Kuhn, Stefano Zacchiroli).

Since 2005 the FSF has published a list of high priority free software projects in order “to foster work on projects that are important for increasing the adoption and use of free software and free software operating systems.”

Today the FSF announced a review of this list. Excerpt:

Undoubtedly there are thousands of free software projects that are high priority, each having potential to displace non-free programs for many users, substantially increasing the freedom of those users. But the potential value of a list of High Priority Free Software Projects maintained by the Free Software Foundation is its ability to bring attention to a relatively small number of projects of great strategic importance to the goal of freedom for all computer users.

[…]

Keep in mind that not every project of great strategic importance to the goal of freedom for all computer users will be a software development project. If you believe other forms of activism, internal or external (e.g., making free software communities safe for diverse participants, mandating use of free software in the public sector), are most crucial, please make the case and suggest such a project!

I hope the announcement text indicates the possibility of exploiting the review and list to encourage debate about how to achieve the FSF’s goal of software freedom for all over the next decades, and that the how might (must, in my view) go far beyond hacking of code (and secondarily, copyright). How can demand for software freedom be both increased and made more effective? Same for supply, inclusive of distribution and marketing?

Send your suggestions to hpp-feedback@gnu.org or better yet post publicly. (I’m on the review committee.)

Because it is undoubtedly out of scope for above activity, I’ll note here a project I consider necessary for FSF’s goal to become plausible: question software freedom.

The “dark ages” links above largely concern “the cloud”, the topic of the other FSF-related committee I’ve participated in, over 6 years ago, correctly implying that effort was not very influential. I hope to post an assessment and summary of my current take on the topic in the near future.

Do not pay copyright holders, for a good future

Sunday, September 28th, 2014

The Unrepentant Bootlegger profiles Hana Beshara, a founder of NinjaVideo, who spent 16 months in prison for defying censorship. Cut to the logic of censorship (emphasis added):

People watch more paid, legal content than ever, but they also continue to download huge amounts of illegal content. “Piracy is putting pressure on antiquated business models, which isn’t necessarily a bad thing,” said Brett Danaher, an economics professor at Wellesley College who studies Internet piracy. “But the prevalence of piracy shows that people are growing up in a culture of free, and that is not good for the future of entertainment, either.”

That we should be concerned for the future of entertainment, at all, is itself bizarre. Freedom and equality should absolutely trump incentivizing a surfeit of entertainment. If we must choose between spectacle and communications, spectacle should be destroyed. We do not need to choose. We can destroy the censorship regime, but entertainment, including for better or worse some of the spectacle variety, will continue to exist and be produced in vastly greater quantities and quality than it is feasible for anyone to even begin to fully appreciate in a lifetime. If the spectacle portion does not include projects with budgets of hundreds of millions of dollars, that is OK — we will love what culture does get produced, as that love and cultural relevance is largely based on being immersed in the culture that exists — we love the culture we’re in. If that culture is less dominated by U.S.-based high investment productions, so much the better for the U.S. and the world.

Another policy significant quote from the article:

Peter Eckersley, technology projects director at the Electronic Frontier Foundation […] said the law should shift its focus to making sure that copyright holders are paid for their work, rather than trying to stymie how people gain access to it. […] He suggested a legal framework to retire the “exclusive rights” aspect of copyright law that requires permission to publish — and that allows copyright holders to seek exorbitant damages from infringers — and move toward a system that requires sites and people who make money from another’s work to share any profits. Solutions like these, Mr. Eckersley says, would create different priorities that go beyond chasing small-time pirates like Ms. Beshara and her colleagues.

No, copyright holders should not be paid. Any payment by virtue of holding copyright only makes the censorship regime self-perpetuating. Funding of entertainment should be completely decoupled from the censorship regime of copyright. I understand the appeal of paid speech over permissioned speech (of course a tax is usually better than a prohibition, and that applies to privatized regimes as well), but neither is free speech. The paid speech approach would indeed create priorities that go beyond chasing small-time pirates (note Beshara earned $210k over 3 years; note also existing paid speech regimes which involve monitoring and shakedown of small-time restaurants) — it would invite further pervasive and destructive surveillance of communications in the interest of ensuring copyright holders get paid. It is appalling that EFF is still willing to invite sacrifice of everything they fight for at the alter of paying copyright holders. I don’t blame the EFF specifically; this just shows how deeply intellectual parasitism has burrowed in general. Intellectual parasites (which includes most reformers, including me often) need to fully shift to being commons policy advocates (and scholars).

Regarding people and projects like Hana Beshara and NinjaVideo, I’m ambivalent. Performing unpaid marketing and price discrimination services for the censorship industry is distasteful and harmful. But sharing culture (putting the regime aside) is tasteful and helpful. There is too little known about informal circulations and their effects, this lack of knowledge itself a collateral damage of the regime (compare being able to study cultural flows and surveillance required for paid speech; they are of different orders) and far, far, far too little direct competition for the regime.

Proprietary profitability as a key metric for open access and open source

Thursday, August 7th, 2014

Glyn Moody in Beyond Open Standards and Open Access:

Like open source, open access is definitely winning, even if there is some desperate rearguard action by the publishers, who are trying to protect their astonishing profit margins – typically 30-40%.

No doubt open source and open access have progressed, but the competition maintaining astonishing profit margins contradicts “definitely winning.” For publishing, see Elsevier, £0.8b profit on £2.1b revenue, and others. For software most pertinent to Moody’s post (concerning Open Document Format), see Microsoft’s business division, $16b profit on $24b revenue.

These profits coupled with the slow relative progress of open source and open access give proprietary vendors huge range to not only take “desperate rearguard action” but also to create new products and forms of lock-in with which the commons is continually playing catch-up.

We know what the commons “definitely winning” looks like — Linux (server software) and Wikipedia (encyclopedias) — and it includes proprietary vendor profit margins being crushed, most going out of business, and those remaining transitioning to service lines of business less predicated on privatized censorship.

When libraries begin mass cancellation of toll access journal subscriptions and organizations of all sorts cancel Microsoft, Adobe, and similar software subscriptions, then we can consider whether open access and open source are definitely winning. Until then the answer is definitely no.

As for what’s next for open standards and open access (Moody suggests further ODF mandates, which would be fine), the obvious answer is open source. It’s what allows realization of the promise of open standards, and the cancellation of Microsoft subscriptions. It’s also what’s next for academic publishing and everything else — what is not software will be obsolete — though cancellation of those toll access subscriptions is going to require going back to basics.

Free/open/commons advocates should consider destruction of proprietary competition profitability a key aim and metric of success or lack thereof, for both open products and policy. This metric has several benefits:

  • Indicates relative progress. Any non-moribund project/movement can make seeming progress, blind to different and potentially much greater progress by competition.
  • Implicates role of knowledge economy and policy in increasing or decreasing equality (of income and wealth, not just access).
  • Hard numbers, data readily available.
  • It’s reasonable to multiply destruction of proprietary profits when characterizing gains (so as to include decrease in deadweight loss).

Generative acknowledgement

Thursday, July 31st, 2014

Robin Sloan, The secret of Minecraft: And its challenge to the rest of us

In the 2010s and beyond, it is not the case that every cultural product ought to be a generative, networked system.

It is, I believe, the case that all the really important ones will be.

Nathan Matias, Designing Acknowledgement on the Web:

A system which acknowledges the beauty of cooperative relationships can’t be based on the impersonal idea of hypertext or the egocentric notion of authorship. It can’t rely on licenses to threaten people into acknowledging each other.

Via 1 2 3 and confirmation bias about which I can’t think of anything smart to say, so I’ll include a fun word: contextomy. Neither of the above reaches that bar, but I’ll try harder next time.

Posts on the ought of generative, networked production and intellectual parasite debasement of acknowledgement.

“Open policy” is the most promising copyright reform

Thursday, June 26th, 2014

Only a few days (June 30 deadline) for applications to the first Institute for Open Leadership. I don’t know anything about it other than what’s at the link, but from what I gather it involves a week-long workshop in the San Francisco area on open policy and ongoing participation in an online community of people promoting open policies in their professional capacities, and is managed by an expert in the field, Timothy Vollmer. Read an interview with Vollmer (wayback link to spare you the annoying list-gathering clickthrough at the original site, not least because its newsletter is an offender).

The institute and its parent Open Policy Network define:

Open Policy = publicly funded resources are openly licensed resources.

(Openly licensed includes public domain.)

Now, why open policy is the most promising knowledge regulation reform (I wrote “copyright” in the title, but the concept is applicable to mitigating other IP regimes, e.g., patent, and pro-commons regulation not based on mitigating IP):

  • Most proposed reforms (formalities can serve as an example for each mention following) merely reduce inefficiencies and embarrassments of freedom infringing regimes in ways that don’t favor commons-based production, as is necessary for sustainable good policy. Even if not usually conceptualized as commons-favoring, open policy is strongly biased in that direction as its mechanism is mandate of the terms used for commons-based production: open licenses. Most proposed reforms could be reshaped to be commons-favoring and thinking of how to do so a useful exercise (watch this space) but making such reshaping gain traction, as a matter of discourse let alone implementation, is a very long-term project.
  • The concept of open policy is scalable. There’s no reason as it gains credence to push for its expansion to everything receiving public or publicly interested support, including high and very low culture subsidy. At the extreme, the only way to avoid being subject to some open policy mandate would be to create restricted works in an IPer colony, isolated from the rest of humanity.
  • In order to make open policy gain much more credence than it has now, its advocates will be forced to make increasingly sophisticated public policy arguments to support claims that open policy “maximizes public investment” or to shift the object of maximization to freedom and equality. Most proposed reforms, because they would only reduce inefficiency and embarrassment, do not force much sophistication, leaving knowledge regulation discourse rotting in a trough where economists abandoned it over a century ago.
  • Open policy implementation has the potential to destroy the rents of freedom infringing industries. For sustainable good policy it is necessary to both build up the commons as an interest group and diminish interest groups that depend or think they depend on infringing freedom. It is possible for open policy to be gamed (e.g., hybrid journal double dipping). As troubling as that is, it seems to me that open policy flips which side is left desperately clawing for loopholes contrary to the rationale of policy. Most reform proposals at least implicitly take it as a given that public interest is the desperate side.
  • Open policy does not require any fundamental changes to national law or international treaties, meaning it is feasible, now. Hopefully a few reformists have generally grasped the no-brainer concept that a benefit obtained today is more valuable than one obtained in the future, e.g., in 95 years. It also doesn’t mean that open policy is merely a “patch” in contrast the “fixes” of most proposed reforms — which aren’t fixes anyway, but rather mitigations of the worst inefficiencies and embarrassments of freedom infringing regimes. If open policy is a patch, it is a one that helps the body of knowledge regulation to heal, by the mechanisms above (promoting commons production and discourse, diminishing freedom infringing interests).

In my tradition of critical cheering, consider the following Open Policy Network statement:

We have observed that current open policy efforts are decentralized, uncoordinated and insular; there is poor and/or sporadic information sharing.

As illustrated by the lack of the Open Source Definition or any software-centric organizations on Open Policy Network lists of its guiding principles and member organizations. Fortunately software is mentioned several times, for example:

If we are going to unleash the power of hundreds of billions of dollars of publicly funded education, research, data, and software, we need broad adoption of open policies.

Hopefully if the Open Policy Network is to become an important venue for moving open policy forward, people who understand software will get involved (by the way, one of the ways “publicly funded” is scalable is that it properly includes procurement, not only wholly funded new resources), e.g., FSFE and April. I know talking about software is scary — because it is powerful and unavoidable. But this makes it a necessity to include in any serious project to reform the knowledge economy and policy. Before long, everything that is not software or suffused with software will be obsolete.

API commons

Thursday, May 29th, 2014

Notes for panel The API Copyright Emergency: What’s Next? today at API Con SF. The “emergency” is the recent decision in Oracle v. Google, which I don’t discuss directly below, though I did riff on the ongoing case last year.

I begin with and come back to a few times Creative Commons licenses as I was on the panel as a “senior fellow” for that organization, but apart from such emphasis and framing, this is more or less what I think. I got about 80% of the below in on the panel, but hopefully still worth reading even for attendees.

A few follow-up thoughts after the notes.

Creative Commons licenses, like other public licenses, grant permissions around copyright, but as CC’s statement on copyright reform concludes, licenses “are not a substitute for users’ rights, and CC supports ongoing efforts to reform copyright law to strengthen users’ rights and expand the public domain.” In the context of APIs, default policy should be that independent implementation of an API never require permission from the API’s designer, previous implementer, or other rightsholder.

Without such a default policy of permission-free innovation, interoperability and competition will suffer, and the API community invites late and messy regulation at other levels intending to protect consumers from resulting lock-in.

Practically, there are things API developers, service providers, and API consumers can do and demand of each other, both to protect the community from a bad turn in default policy, and to go further in creating a commons. But using tools such as those CC provides, and choosing the right tools, requires looking at what an API consists of, including:

  1. API specification
  2. API documentation
  3. API implementations, server
  4. API implementations, client
  5. Material (often “data”) made available via API
  6. API metadata (e.g, as part of API directory)

(depending on construction, these could all be generated from an annotated implementation, or could each be separate works)

and what restrictions can be pertinent:

  1. Copyright
  2. Patent

(many other issues can arise from providing an API as a service, e.g., privacy, though those are usually not in the range of public licenses and are orthogonal to API “IP”, so I’ll ignore them here)

1-4 are clearly works subject to copyright, while 5 and 6 may or may not be (e.g., hopefully not if purely factual data). Typically only 3 and 4 might be restricted by patents.

Standards bodies typically do their work primarily around 1. Relatively open ones, like the W3C, obtain agreement from all contributors to the standard to permit royalty-free implementation of the standard by anyone, typically including a patent license and permission to prepare and perform derivative works (i.e., copyright, to extent such permission is necessary). One option you have is to put your API through an existing standards organization. This may be too heavyweight, or may be appropriate yet if your API is really a multi-stakeholder thing with multiple peer implementations; the W3C now has a lightweight community group venue which might be appropriate. The Open Web Foundation’s agreements allow you to take this approach for your API without involvement of an existing standards body​. Lawrence Rosen has/will talk about this.

Another approach is to release your API specification (and necessarily 2-4 to the extent they comprise one work, ideally even if they are separate) under a public copyright license, such as one of the CC licenses, the CC0 public domain dedication, or an open source software license. Currently the most obvious choice is the Apache License 2.0, which grants copyright permission as well as including a patent peace clause. One or more of the CC licenses are sometimes suggested, perhaps because specification and documentation are often one work, and the latter seems like a “creative” work. But keep in mind that CC does not recommend using its licenses for software, and instead recommends using an open source software licenses (such as Apache): no CC license includes explicit patent permission, and depending on the specific CC license chosen, it may not be compatible with software licenses, contrary to goal of granting clear permission for independent API implementation, even in the face of a bad policy turn.

One way to go beyond mitigating “API copyrightability” is to publish open source implementations, preferably production, though reference implementations are better than nothing. These implementations would be covered by whatever copyright and patent permissions are granted by the license they are released under — again Apache 2.0 is a good choice, and for software implementation CC licenses should not be used; other software licenses such as [A]GPL might be pertinent depending on business and social goals.

Another way to create a “thick” API commons is to address material made available via APIs, and metadata about APIs. There, CC tools are likely pertinent, e.g., use CC0 for data and metadata to ensure that “facts are free”, as they ought be in spite of other bad policy turns.

To get even thicker, consider the architecture, for lack of a better term, around API development, services, and material accessed and updated via APIs. Just some keywords: Linked Open Data, P2P, federation, Lots of Copies Keep Stuff Safe, collaborative curation.

The other panelists were Pamela Samuelson, Lawrence Rosen, and Annette Hurst, moderated by David Berlind.

I’m fairly familiar with Samuelson’s and Rosen’s work and don’t have comments on what they said on the panel. If you want to read more, I recommend among Samuelson’s papers The Strange Odyssey of Software Interfaces and Intellectual Property Law which shows that the “API copyright emergency” of the panel title is recurrent and intertwined with patent, providing several decades of the pertinent history up to 2008. Contrary to my expectation in the notes above, Rosen didn’t get a chance to talk about the Open Web Foundation agreements, but you can read his 2010 article Implementing Open Standards in Open Source which covers OWF.

Hurst is a lawyer for Orrick representing Oracle in the Oracle v. Google case, so understandably advocated for API copyright, but in the process made several deeply flawed assertions could have consumed the entire duration of the panel, but Berlind did a good job of keeping the conversation moving forward. Still, I want to mention two high level ones here, my paraphrases and responses:

Without software copyright the software economy would go away. This is refuted by software development not for the purposes of selling licenses (which is the vast majority of it), especially free/open source software development, and services (e.g., API provision, the source of which is often never published, though it ought be, see “going beyond” recommendations above). Yes the software economy would change, with less winner-take-all monopoly and less employment for Intellectual Parasite lawyers. But the software economy would be huge and very competitive. Software is eating the world, remember? One way to make it help rather than pejoratively eat the world is to eject the parasites along for the ride.

Open source can’t work without software copyright. This is refuted by 1) software source sharing before software copyright; 2) preponderance of permissively licensed open source software, in which the terms do not allow suing downstream developers who do not share back; 3) the difficulty of enforcing copyleft licenses which do allow for suing downstream developers who do not share back; 4) the possibility of non-copyright regulation to force sharing of source (indeed I see the charitable understanding of copyleft as prototyping such regulation; for perspective on the Oracle v. Google case from someone with a more purely charitable understanding of copyleft, see Bradley Kuhn); and 5) demand and supply mechanisms for mandating sharing of source (e.g., procurement policies, distribution policies such as Debian’s).

These came up because Hurst seemed to really want the audience to conflate software copyright in general (not at issue in the case, settled in a bad place since the early 1980s) and API copyright specifically. Regarding the latter, another point which could have been made is the extent to which free/open source software has been built around providing alternatives to proprietary software, often API-compatible. If API copyright could prevent compatible implementation without permission of any sort, open source, competition, and innovation would all be severely hampered.

There is a recent site called API Commons, which seems to be an API directory (Programmable Web, which ran the conference, also has one). My general suggestion to both would be to implement and facilitate putting all elements of APIs listed above in my notes in the commons. For example, they could clarify that API metadata they collect is in the public domain, publish it as Linked Open Data, and encourage API developers and providers they catalog to freely license specifications, documentation, implementations, and data, and note such in the directories.

In order to get a flavor for the conference, I listened to yesterday morning’s keynotes, both of which made valiant attempts to connect big picture themes to day to day API development and provision. Allow me to try to make connections back to “API commons”.

Sarah Austin, representing the San Francisco YMCA, pointed out that the conference is near the Tenderloin neighborhood, the poorest in central San Francisco. Austin asked if kids from the Tenderloin would be able to find jobs in the “API economy” or would they be priced out of the area (many tech companies have moved nearby in the last years, Twitter perhaps the best known).

Keith Axline claimed The Universe Is Programmable. We Need an API for Everything, or to some extent, that learning about the universe and how to manipulate it is like programming. Axline’s talk seemed fairly philosophical, but could be made concrete with reference to the Internet of Things, programmable matter, robots, nanobots, software eating the world … much about the world will indeed soon be software (programmable) or obsolete.

Axline’s conclusion was in effect largely about knowledge policy, including mourning energy wasted on IP, and observing that we should figure out public support for science or risk a programmable world dominated by IP. That might be part of it, but keeps the focus on funding, which is just where IP advocates want it — IP is an off-the-balance-sheets, “free” taking. A more direct approach is needed — get the rules of knowledge policy right, put freedom and equality as its top goals, reject freedom infringing regimes, promote commons (but mandating all these as a condition of public and publicly interested funding is a reasonable starting place) — given these objectives and constraints, then argue about market, government, or other failure and funding.

Knowledge policy can’t directly address the Austin’s concerns in the Tenderloin, but it does indirectly affect them, and over the long term tremendously affect them, in the Tenderloin and many other places. As the world accelerates its transition from an industrial to a knowledge dominated economy, will that economy be dominated by monopoly and inequality or freedom and equality? Will the former concentrations continue to abet instances of what Jane Jacobs called “catastrophic money” rushing into ill-prepared neighborhoods, or will the latter tendencies spread the knowledge, wealth, and opportunity?

Without Intellectual Property Day [edit]

Saturday, April 26th, 2014
Without Intellectual Property Day by Parker Higgins of the EFF is quite good, and released under CC-BY. Clearly deserving of adaptation. Mine below, followed by a diff.

April 26 is the day marked each year since 2000 by the World Intellectual Property Organization (WIPO) as “World Intellectual Property Day”, in which WIPO tries to associate its worldwide pushes for more enclosure with creativity.

Celebrating creativity is a good thing, but when you’re a hammer, everything looks like a nail. For the World Intellectual Property Organization, it may seem like creativity and “intellectual property” are inextricably linked. That’s not the case. In the spirit of adding to the conversation, let’s honor all the creativity and industry that is happening without a dependence on a system intellectual property.

There’s an important reason to encourage and promote creativity outside the bounds of increasingly restrictive laws: to the extent such creativity succeeds, it helps us re-imagine the range of desirable policy and reduces the resources available to enclosure industries to lobby for protectionism — in sum shifting what is politically possible. It’s incumbent on all of us who want to encourage creativity to continue to explore and utilize structures that reward creators without also restricting speech.

Comedy, Fashion, Cooking, Magic, and More

In the areas in which intellectual freedom is not typically infringed, there is tremendous innovation and consistent creativity outside of the intellectual property system. Chefs create new dishes, designers imagine new styles, comedians write new jokes, all without a legal enforcement mechanism to restrict others from learning and building on them.

There may be informal systems that discourage copying—the comedy community, to take one example, will call out people who are deemed to be ripping off material—but for the most part these work without expensive litigation, threats of ruinous fines, and the creation of systems of surveillance and censorship.

Contributing to a Creative Commons

The free software movement pioneered the practice of creating digital media that can legally and freely be shared and expanded, building a commons. The digital commons idea is being pushed in more areas than ever before, including culture, education, government, hardware design, and research. There are some projects we’re all familiar with — Wikipedia is perhaps the most prominent, creating an expansive and continuously updated encyclopedia that is freely accessible under permissive terms to the entire world.

Focusing on this year’s World IP Day theme of movies, there have been some impressive contributions the commons over the years. Nina Paley’s feature animation Sita Sings The Blues, which she released into the public domain, has spread widely, inspired more work, and earned her money. The short films from the Blender Foundation have demonstrated cutting-edge computer graphics made with free software and, though they’ve sometimes been on the receiving end of bogus copyright takedowns, have been watched many millions of times.

Kickstarting and Threshold Pledges

Finally, crowdfunding platforms like Kickstarter and Indie-Go-Go have made a major splash in the last few years as another fundraising model that can complement, or even replace, copyright exclusivity. These platforms build on theoretical framework laid out by scholars like John Kelsey and Bruce Schneier in the influential “Street Performer Protocol” paper, which set out to devise an alternative funding system for public domain works. But most crowdfunded works are not in the commons, indicating an need for better coordination of street patrons.

Looking at movies in particular: Kickstarter alone has enabled hundreds of millions of dollars of pledges, hundreds of theatrical releases, and seven Oscar-nominated films (including Inocente, winner of the Best Documentary Short category). Blender Foundation is currently crowdfunding its first feature length film, Gooseberry.

***

The conceit of copyright and other “intellectual property” systems is that they can be calibrated to promote the progress of science and the useful arts. But the reality of these systems is corruption and rent seeking, not calibration. The cost is not just less creativity and innovation, but less freedom and equality.

It’s clear from real world examples that other systems can achieve the goal of promoting creativity, progress, and innovation. We must continue to push for both practice and policy that favors these systems, ultimately rendering “intellectual property” a baffling anachronism. In a good future, a policy-oriented celebration of creativity and innovaion would be called World Intellectual Freedom Day.

wdiff -n eff-wipd.html eff-wipd-edit.html |colordiff |aha -w > eff-wipd-diff.html
[-<p>Today, April 26,-]{+<p>April 26+} is the day marked each year since 2000 [-as "Intellectual Property Day"-] by the <a href="https://www.eff.org/issues/wipo">World Intellectual Property Organization [-(WIPO)</a>. There are many areas where EFF has not historically agreed with WIPO,-] {+(WIPO)</a> as "World Intellectual Property Day", in+} which [-has traditionally pushed-] {+WIPO tries to associate its <a href="https://www.eff.org/deeplinks/2013/03/ustr-secret-copyright-agreements-worldwide">worldwide pushes+} for more [-restrictive agreements and served as a venue for <a href="https://www.eff.org/deeplinks/2013/03/ustr-secret-copyright-agreements-worldwide">domestic policy laundering</a>, but we agree that celebrating-] {+enclosure</a> with creativity.</p>+}
{+<p>Celebrating+} creativity is a good [-thing.</p>-]
[-<p>As the saying goes, though:-] {+thing, but+} when you're a hammer, everything looks like a nail. For the World Intellectual Property Organization, it may seem like creativity and <a href="https://www.eff.org/issues/intellectual-property/the-term">"intellectual property"</a> are inextricably linked. That's not the case. In the spirit of adding to the conversation, [-we'd like to-] {+let's+} honor all the creativity and industry that is happening <i>without</i> a dependence on a system intellectual property.</p>
<p>There's an important reason to encourage {+and promote+} creativity outside the bounds of increasingly restrictive [-laws, too. As Ninth Circuit Chief Justice Alex Kozinski eloquently explained in <a href="http://notabug.com/kozinski/whitedissent">a powerful dissent</a> some 20 years ago, pushing only for more IP restrictions tips a delicate balance against creativity:</p>-]
[-<blockquote><p>Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on-] {+laws: to+} the [-works-] {+extent such creativity succeeds, it helps us re-imagine the range+} of [-those who came before. Overprotection stifles the very creative forces it's supposed-] {+desirable policy <i>and</i> reduces the resources available+} to [-nurture.</p></blockquote>-]
[-<p>It's-] {+enclosure industries to lobby for protectionism -- in sum shifting what is politically possible. It's+} incumbent on all of us who want to encourage creativity to continue to explore {+and utilize+} structures that reward creators without also restricting speech.</p>
<h3>Comedy, Fashion, Cooking, Magic, and More</h3>
<p>In the areas [-known as copyright's "negative spaces,"-] {+in which intellectual freedom is not typically infringed,+} there is tremendous innovation and consistent creativity outside of the intellectual property system. Chefs create new dishes, designers imagine new styles, comedians write new jokes, all without a legal enforcement mechanism to restrict others from learning and building on them.</p>
<p>There may be informal systems that discourage copying—the comedy community, to take one example, <a href="http://www.slate.com/articles/arts/culturebox/features/2014/the_humor_code/joke_theft_can_a_comedian_sue_if_someone_steals_his_material.html">will call out people</a> who are deemed to be ripping off material—but for the most part these work without expensive litigation, threats of ruinous fines, and the creation of systems [-that can be abused to silence lawful non-infringing speech.</p>-] {+of surveillance and censorship.</p>+}
<h3>Contributing to a Creative Commons</h3>
<p>The free software movement [-may have popularized-] {+pioneered+} the [-idea-] {+practice+} of creating digital media that can legally and freely be shared and expanded, [-but the free culture movement has pushed the-] {+building a commons. The digital commons+} idea [-further-] {+is being pushed in more areas+} than ever [-before.-] {+before, including culture, education, government, hardware design, and research.+} There are some projects we're all familiar [-with—Wikipedia-] {+with -- Wikipedia+} is perhaps the most prominent, creating an expansive and continuously updated encyclopedia that is freely accessible under permissive terms to the entire world.</p>
<p>Focusing on this year's World IP Day theme of movies, there have been some impressive contributions the commons over the years. Nina Paley's feature animation <i><a href="http://www.sitasingstheblues.com/">Sita Sings The Blues</a></i>, which she released into the public domain, has spread widely, inspired more work, and earned her money. The <a href="http://www.techdirt.com/articles/20101002/20174711259/open-source-animated-movie-shows-what-can-be-done-today.shtml">short films from the Blender Foundation</a> have demonstrated cutting-edge computer graphics made with free software and, though they've sometimes been on <a href="http://www.techdirt.com/articles/20140406/07212626819/sony-youtube-take-down-sintel-blenders-open-source-creative-commons-crowdfunded-masterpiece.shtml">the receiving end of bogus copyright takedowns</a>, have been watched many millions of times.</p>
<h3>Kickstarting and Threshold Pledges</h3>
<p>Finally, crowdfunding platforms like Kickstarter and Indie-Go-Go have made a major splash in the last few years as another fundraising model that can complement, or even replace, [-traditional-] copyright exclusivity. These platforms build on theoretical framework laid out by scholars like John Kelsey and [-EFF board member-] Bruce Schneier in <a href="https://www.schneier.com/paper-street-performer.html">the influential "Street Performer Protocol" paper</a>, which set out to devise an alternative funding system for public [-works.</p>-] {+domain works. But most crowdfunded works are not in the commons, indicating an need for better <a href="https://gondwanaland.com/mlog/2013/08/10/street-patrons-missing-coordination-protocol/">coordination of street patrons</a>.</p>+}
<p>Looking at movies in particular: Kickstarter alone has <a href="https://www.kickstarter.com/blog/a-big-day-for-film">enabled hundreds of millions of dollars of pledges</a>, hundreds of theatrical releases, and seven Oscar-nominated films (including <i>Inocente</i>, winner of the Best Documentary Short category). [-Along with other-] {+Blender Foundation is currently+} crowdfunding [-sites, it has allowed the development of niche projects that might never have been possible under the traditional copyright system.&nbsp;</p>-] {+its first feature length film, <em><a href="http://gooseberry.blender.org/">Gooseberry</a></em>.</p>+}
<h3>***</h3>
[-<p>As the Constitution tells us,-]
{+<p>The conceit of+} copyright and other "intellectual property" systems [-can, when-] {+is that they can be+} calibrated [-correctly,-] {+to+} promote the progress of science and the useful arts. [-We continue to work pushing for a balanced law that would better achieve that end.</p>-]
[-<p>But it's also-] {+But the reality of these systems is corruption and rent seeking, not calibration. The cost is not just less creativity and innovation, but less freedom and <a href="https://gondwanaland.com/mlog/2014/01/30/tech-wealth-ip/">equality</a>.</p>+}
{+<p>It's+} clear from [-these-] real world examples that other systems can achieve [-that-] {+the+} goal [-as well. Promoting-] {+of promoting+} creativity, progress, and [-innovation is an incredibly valuable mission—it's good to know that it doesn't have-] {+innovation. We must continue+} to [-come through systems-] {+push for both practice and <a href="https://gondwanaland.com/mlog/2014/02/09/freedoms-commons/#regulators">policy+} that [-can-] {+favors these systems</a>, ultimately rendering "intellectual property" a baffling anachronism. In a good future, a policy-oriented celebration of creativity and innovaion would+} be [-abused to stifle valuable speech.</p>-] {+called World Intellectual Freedom Day.</p>+}