The Politics of Copyright

I’ve been wanting to write this all week.  Last Friday, the Republican Study Committee released a phenomenal white paper pushing for some pretty broad reforms in the copyright law. While I myself am not a terribly conservative person, this paper blew me away.  It’s amazing how progressive a statement you can make within the framework of conservative principles, and that’s exactly what they did.  While the RSC rescinded that report within about 24 hours due to “proper review” concerns,* the Electronic Frontier Foundation has the document in full preserved on their website. And you should definitely read it.

I don’t normally write about politics here, but I want to bullet point some of the necessary methods just to illustrate how this document worked.

Strict Constructionism: The first point that they address has to do with the myth of compensating the creator.  Instead the author turns to the language directly in the constitution that copyright is to “promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”  They use that exact language to highlight the fact that the purpose of copyright not solely to compensate the author, but to provide the author a limited time to profit from his creation, so that we, as a nation could promote progress in Science and useful Arts.  Further in the document they talk about how the perpetual extension of copyright hinders innovation.

Laissez Faire Capitalism: The second point has to do with the breadth of the market.  Because copyright is for all intents and purposes indefinite, this creates state sanctioned monopolies on content.  What we see when works go into the public domain is a vast proliferation on that content.  We don’t have to look very far to see that in action.  From The Wizard of Oz we get Gregory Maguire’s “Wicked” (and the subsequent musical) the Sci-Fi Channel’s “Tin Man” and innumerable costumes and toys.  From Alice in Wonderland we have dozens of movies, cartoons, miniseries, songs, toys, and reprint after reprint with critical editions and leather bindings and all sorts of things.  If you need a visual then you should look at this chart of new books in the Amazon warehouse by decade from the Laissez Faire Blog.  That 1920 line is where Copyright reforms swept in due to Disney trying to protect Steamboat Willey, and it never came back.

Number of new books in the Amazon warehouse by decade

From the Laissez Faire blog. We have a huge blindspot, and it’s copyright’s fault.

 

Tort Reform: On Page 7 when the author starts into the potential policy solutions one of the first things that he looked at was statutory damages reform.  Right now damage for copyright violations and infringement are orders of magnitude beyond the value of the original work.  This disconnect between penalty and reality is what gives us the ludicrous world of the 8 Billion Dollar iPod.  From the paper:

Further, this system creates a serious clogging of the ourts, because copyright holders now recognize that they can accuse anyone of infringemen, and include the threat of $150,000 awards per violation. But in reality, most people then settle for less than that sum, say $3,000.  Scaring a large number of potentially innocent people into settling should not be an effect of copyright law.

Limited Government: As stated above,the perpetual extension of copyright secures the rights of one individual or one company to be the sole entity to profit from a work.  This means that the government is determining who is allowed to profit, and who not, and the resources of government (i.e. the court system) can be used to enforce this regime.  By limiting copyright we limit the government’s role in enforcing copyright.

While the arguments that lead to these conclusions and proposals are definitely conservative base targets, the conclusions and solutions were really the best part.  And Libraries were not left out. Though they reference Project Gutenberg as a digital library initiative, and it is, with the expansion of the public domain there are entire universes of activities that could spring up among public libraries both on their own, through vendors like Overdrive, or coordinated efforts like the Hathi Trust or the Digital Public Library of America.  Expanding the potential for eBook development on a grand coordinated scale can lead the entire world into a new era of research, development, and entertainment.

As we start to look at the future, we’re going to see more disruption in content, and how people engage with it.  It started with music, moved to video, and surprisingly text has been slow to crack.  But with the growing ubiquity of eReading devices, and some fairly well settled ePub standards based on HTML5 this is going to be blowing up, and fast.  And copyright law will either adapt, or be thrown to the wolves on the internet.  Adaptation, and innovation in the sources of funding for limited times will do everyone a service.  The music industry is finally starting to find out how to make this work and it’s taken some pretty bold experimentation among established musicians to do this.  But today the Future of Music group released a pretty amazing checklist of 42 ways you can gain revenue from your work.  This is the kind of exploratory thinking that needs to be happening in the Big Content world, because maintaining perpetual copyright is only going to last so long as you can’t rip the content from a book the way you can rip a CD.  Oh wait, you can now.

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*Secretly in my heart of hearts I’m kind of hoping that Derek Khanna, the RSC Staff Contact and Paul Teller posted the document for just long enough, and rescinded it fast enough for the Streisand Effect to take hold and drive the conversation forward. A little too Machiavellian?  Maybe.  But it has certainly been the topic of conversation across the entirety of the tech sector.

What You Say Online – Minors Edition

Dude, why did you say that?

Over at my LJ I spent some time recounting this story of post-election bursts of racism, and talking about my own experiences growing up in one of these similar types of towns where it’s 99.999% white people and racism continues to rear its ugly head.  The quick version: Barack Obama wins the national election.  A bunch of racist people take to the internet to voice their racist opinions.  Some of these people saying these racist things were teens.

And that’s where things got interesting.

The folks over at Jezebel recognized that a bunch of these tweets were coming from teenagers, who posted a ton of their personal information online.  Their full legal name.  Their school.  Pictures of themselves in their school uniforms, or team uniforms. Details about potential recruiting for colleges, etc.  So, they started calling up the schools, and pointing out that these students were in pretty much every case violating the code of behavior for their student body, and not serving as a positive role model or representative of the school.  And then they wrote an article about it.  They named their names, their schools, and more.

Today, Read Write Web called out Jezebel for violating journalistic ethics by engaging in public harassment of minors. The argument from RWW is that traditional journalism respects that minors who commit criminal actions or who engage in inappropriate behavior would not normally be named in an article or on a news broadcast.  Juvenile court records can be sealed, and often are, to allow for the mistakes of a young person to not tarnish the potential for a normal adult life.  The salient component from the RWW article:

When a minor commits a crime in the real world, the cops know who the kid is, as do the neighbors and everyone in the community. The journalist covering the crime knows the kid’s name, and if anyone wanted to, they could find out the minor’s name just by pulling up the public police report.

And this is where the internet is different, and it’s a point that I addressed in my personal blog.  Writing something on the internet doesn’t stay in your little town.  It is something that is PUBLISHED.  By putting your name, your location, and your words out there for anyone in the public to see, you are inviting the criticism of the world, and engaging in the very same game that publishers and journalists have been playing in for years.  The internet pierces the bubble of the local domain and expands your influence to the entire world.

This is why a viral video can spark an embassy attack.

What you do online means something, and it has consequences.  Some people are being visited by the Secret Service because they made threats against the President on Twitter.  It’s gravely serious.

So, the question is, should this news outlet publicly state the names of these teens who posted racist tweets?  I am standing by Jezebel on this one.  These teens already put themselves out there.  They may not have realized what they were doing would have such a profound impact, or even be picked up as national news.  And that is a failure of educating kids about how the internet works.  These kids probably thought that nobody read their stuff, and that they were just writing for their friends.  When in reality, what they are saying, however inane it might be, is viewable by anyone.  And that is the wake up call that they all just received.

This is core information literacy stuff right here.  Developing an online reputation, managing your personal information, exercising care and caution in what you say and how you say it to people.  All of these things are important, and kids don’t get it.  And with caching, and archiving, they will be subjected to the words they put out when they were at their most vulnerable.

I recall reading an article about a high school that developed an internal social network for their students.  The purpose of this social network was to give the students a kind of internet training-wheels so that they could experiment in a controlled environment before they went and swam in the deep end of the pool (Facebook, Twitter, etc.)  The student would spend the year in that environment, play around in it, get comfortable with it, and then slowly they would start to slip up, and then have a consultation with one of the faculty members or the principal.  The purpose of this exercise was to develop an understanding of what you say online, and how this can negatively affect you.  This absolutely needs to be incorporated into early education, and I’m talking like children 10 years old or less.  This is not intended to scare the kids, but to teach the kids about the lasting impact they will leave on the world, and the trail of information that may be used against them, even from when they are very, very young.

At the library we see kids on the internet pretty much all day long.  Some of these very young kids are on facebook and they are sharing pictures with each other. I will guarantee you that probably not a single one of them understands the privacy settings.  Hell, most adults don’t understand them.  And beyond that, they’re not thinking about what these pictures may say 10, 20, 30 years down the road.  And they absolutely need to learn that.  Being online isn’t a game.  It’s real.  And the consequences can haunt you forever.

Embellishment, Fabrication, Plagiarism, and Remixes

cover of Imagine by Jonah Lehrer

Imagine…using citations.

Jonah Lehrer is the latest in a long line of writers caught up in the scandal of fabricating facts in order to construct a good narrative for his book.  Recently a writer at the Jewish magazine The Tablet was fact checking the Bob Dylan quotations in Lehrer’s book Imagine, and discovered that a good number of the quotes are misstatements, cobbled together phrases from disparate interviews, or, some of them, fabricated entirely in order to sell Lehrer’s thesis.  In a bit of poetic irony, the focus of the book was on how creativity works.  Prior to the reveal that he fabricated these Dylan quotes, the celebrity slam site Gawker, had been criticizing Lehrer for rehashing a lot of his older articles, mining them for material for his new job blogging at the New Yorker.  Is self-plagiarism even a thing?  Lehrer has since resigned his role at the New Yorker.

While sad, this kind of story is nothing new.  Every year a new scandal comes out where people have been caught in the act of embellishing upon the truth, constructing facts to suit their narrative, and flat out stealing the words from other people’s mouths.

Earlier this year it was Mike Daisey.  Daisey had been doing a very successful one-man show called “The Agony and the Ecstasy of Steve Jobs,” which explores the working conditions at Apple Corporation’s Chinese factories in Shenzhen; a portion of that show was picked up by NPR’s This American Life as “Mr. Daisey Goes to the Apple Factory.”  That segment became the most played story the show that had ever aired, and ultimately Apple began investigating and working to fix the conditions of the workers at their factories.  But with this success came scrutiny, and it started coming out that pieces of Daisey’s story were not lining up.  Journalists at NPR’s Marketplace, who were very familiar with the Chinese factory conditions started fact checking, because elements from the story just didn’t jive with their recollections of those very same places.  Ultimately it came out that Daisey had cobbled together elements from other journalist’s experiences, sensationalized the few elements he did experience firsthand, and basically said that he did so because it made for a better narrative.  This American Life was mortified; they pulled the piece, issued a retraction, and had an entire show dedicated to exposing the truth behind the story.  The whole affair made show host Ira Glass and NPR examine the delicate line they walk between storytelling and journalism.  Amazingly the scandal has done little to stop Mike Daisey’s career, in fact, The Agony and the Ecstasy of Steve Jobs is currently being performed by Mike Daisey right now at the Wooly Mammoth Theatre in DC.  Ironically, Mike Daisey also did a one man show entitled Truth {The heart is a million little pieces above all things} about how Author James Frey embellished his novel A Million Little Pieces, and got caught very, very publicly.

A Million Little Pieces, derived from maybe three or four pieces.

A Million Little Pieces was billed as James Frey’s memoir of his life as a drug addict and criminal.  Pieces recounts some incredibly gruesome details surrounding his experiences on drugs, in detox, and the horror stories about being repeatedly busted by the police and spending hard time in prison.  The book came out to mixed reactions when it was released in 2003, particularly among people who had a critical background in substance abuse and crime.  But it was once the book was picked by Oprah’s Book Club in September 2005 that everything started to unravel.  Frey’s first appearance on Oprah in October got people questioning the factual nature of this book that was billed as a truthful memoir of a very rough life.  So the folks who run the tell-all website The Smoking Gun went digging for evidence of James Frey’s criminal background, and what they found was that Frey’s life was not as hardcore as he stated, and that in fact he had hardly ever been in jail at all.  TSG spent six weeks pouring into the details, and found that while he may have been arrested a couple of times, his offenses were petty misdemeanors with local cops, and his hardened life behind bars was anything but hard, nor was it barely any time at all.  They even turned up the fact that he had recounted a story of a horrible train accident that took the life of two high school girls he knew, and inserted himself into the narrative surrounding their death.  After The Smoking Gun story came out on January 8th, 2006, Oprah got Frey and his editor back into the studios. On January 26, 2006 she very publicly called him out on every detail that was embellished in that book.  Frey admitted on national television that he made things up. Amazingly, sales of the book barely slowed down, and it was still on the bestseller lists nine months later.

Wherein Lincoln travels through time.

But James Frey is old news.  Let’s talk about Bill O’Reilly.  In November 2011 the National Park Service, who oversee the Ford’s Theatre historical site reviewed Bill O’Reilly and Martin Dugard’s book Killing Lincoln.  The Ford’s Theatre is the site of Lincoln’s assassination and the NPS contracts with a bookshop full of Lincoln memorabilia and literature there.  The Park Service, wanting to maintain the integrity of the historic site, reviews all of the products for their accuracy before they are added to the shop.   O’Reilly’s book was determined to be too factually inaccurate and lacking in documentation to be worthy of being sold at the Theatre.  Reviewer Rae Emerson provides chapter and page quotations from Killing Lincoln, contradicted by factual references from numerous other sources to support the verdict.  Among the embellishments are such glaring errors as Lincoln meeting in the Oval Office, which didn’t exist until forty years later during the William Howard Taft administration.  While it could be argued that factual inaccuracy, or embellishment make for colorful storytelling, the fact that O’Reilly is a journalist makes the laxity all the more glaring.

Honestly, we’ve all taken shitty notes.

If journalists get knocked for not fact checking, a historian’s reputation can be ruined if they slip up, especially if the error involves more than just not reporting facts accurately, but plagiarizing the work of other historians. Doris Kearns Goodwin, author of several presidential biographies and a regular commentator on PBS News Hour with Jim Lehrer was caught up in a plagiarism scandal in 2002.  The Weekly Standard ran an article that laid out how Goodwin had lifted entire phrases, sometimes paragraphs from three earlier works when composing her 1987 book The Fitzgeralds and the Kennedys.  The quotations were not cited or even listed as quotes in the book.  Goodwin attributed the error to writing out her notes for her books in longhand on legal pads at the time, and she issued a public correction of her work as well as disclosing the settlement she reached with author Lynne McTaggart, who wrote the book Kathleen Kennedy: Her Life and Times, a source for some of Goodwin’s quotes.  But the gaffe cost her credibility, and for several years she did not appear in her role as a PBS expert historian.

The W stands for Wikipedia.

But what if it’s not a historian or a journalist, but actually a history maker who plagiarizes?  What if it’s a former President?  Well, it happened.  Former President George W. Bush was caught plagiarizing in his book Decision Points.  Ryan Grim at the Huffington Post detailed a handful of instances where the former President, and most likely his assistant Peter Rough, lifted passages from other books and publicly accessible news articles about events that took place during the Bush presidency.  The strangest thing is that many of the anecdotes refer to events where Bush was not even present, like the inauguration of Afghan President Hamid Karzai.  That story was taken word for word from Ahmed Rashid’s article in the New York Review of Books.  But that’s just the beginning of a litany of stories lifted in their entirety from other writers, not the least of which was journalist Bob Woodward’s book Bush at War, and General Tommy Franks’ memoir American Soldier.  Looking for unattributed quotations in Decision Points became something of a game, and ultimately a joke.

But plagiarism doesn’t always devastate a writer’s career or make them a laughingstock.  In 2010, 17-year-old wunderkind Helene Hegemann was called out regarding her debut novel Axolotl Roadkill for taking as much as up to an entire page from an earlier book entitled Strobo.  Nevertheless Hegemann was nominated for a prestigious award for new German authors, and the prize committee was fully aware of the plagiarism.  Rather the author defended her use of previous works as being a product of her generation’s exposure to mashups and remixes.  In fact the committee viewed this as a central conceit of the novel.

And it’s true that, to some extent, society’s attitudes toward copyright are changing.  The ability to rapidly copy files makes plagiarizing (or remixing) incredibly easy.  You don’t even need to type the words yourself, just highlight, copy and paste directly into your document.  This ease of use has removed a lot of the burden of plagiarizing.  Where Goodwin copied from book to notepad to typewriter, and lost source information in the process, today a writer need only copy and write an entire book never knowing or caring the source of the material.  Then again, just as easily that same author can copy and paste the URL of his source directly into his document, just as I have done throughout the process of writing this article.

I’ll leave you with this wonderful little Op-Doc from the New York Times entitled “Allergy to Originality” where two characters debate whether or not anything could be considered original anyway.

Wikipedia and Knowledge

Last week an article came out in the New York Times discussing the western research bias of Wikipedia.  Let me summarize.

The western tradition of knowledge is based on a chain of source material upon which further scholarship can build and grow.  Primary source material is something that is wholly original, such as personal papers, video and audio from events, direct scientific experimentation, and other sorts of realia.  Secondary source material is a step removed, where a scientist, historian, or other type of commentator discusses the primary source material and its meaning. Tertiary sources are compilations of primary and secondary source material, things like textbooks and encyclopedias.

Wikipedia operates under a similar modus operandi as traditional encyclopedias, which requires citation of documented sources.  Unlike traditional encyclopedias it doesn’t require that the contributor be an expert in the topic in order to contribute, only that the contributor document the origin of the claim.  The documentation doesn’t have to be available online, but that does help when verifying the accuracy of the statement.

However, there are untold multitudes of information which are undocumented, especially in countries which don’t follow Western academic traditions.  This undocumented life is trying to find its way onto Wikipedia, specifically in their indigenous language variants.  But Wikipedia, holding the line on being a tertiary source.  As a matter of policy Wikipedia doesn’t want people to contribute original research.  The argument is that this policy is culturally biased, and that Wikipedia will be forever incomplete because of this.

But there are ways to make this work, without going direct to Wikipedia to explain these things.

The first thing that came to my mind in this was the story of the woman who taught the reporter how to make this indigenous drink.  Say there is a video of her brewing.  Why can’t this video get posted onto Wikimedia or the Internet Archive?  Along with say, three videos of different other women from other parts of the country where this drink is made?  That would compile a list of sources from different places that could provide an objective viewpoint into the brewing of this drink.  The sources would be housed at Wikimedia or Archive.org, and the article on Wikipedia could reference back to those videos as the context for the piece.  Yes it is original research, but the resulting follow up from the community could expand from there.

In the context of the children’s game from India, the problem is that this is a game that everyone knows about but no one has written about.  Again, Wikipedia doesn’t have to be the first step.  India is a very tech savvy country.  Someone could encourage people across the country to blog about the game and their experiences as children playing the game.  There could be video footage of children playing saved in various places.  This could create a body of work for the Wikipedia community to build from.

Yes, these are both end-run arguments that continue to operate in the context of textual citation.  The alternative is to have Wikipedia change its policy to allow original research to happen directly on the site.  Wikipedia doesn’t want that to happen, and it has good reason.

The word that has been going through all of this is “verify.”  The reason why Wikipedia does not want to have original research presented directly on the site is because original research is impossible to verify, and this deems the material untrustworthy.  Wikipedia wants to be a resource that is seen as trustworthy.  Someplace you can go and see what something is about, and have a degree of confidence that what you’re seeing has been verified by a number of people, and that you can check because it lists all of its sources.

This is why academic journals go through a peer review process.  If someone is making a new claim, there needs to be a degree of confidence among people within that field that the research was done in a sound way, that the claims can be verified against the method and sources used, and that the community can respect.  This is also why the scientific community abhors people who try to do an end run around the peer review process by holding a press conference.  You probably don’t have the think back to far to remember the Arsenic-based life story, and the resulting backlash that came from the scientific community.

Bold claims from original research can be extremely challenging, and sometimes those claims are flat out wrong.  This is not something on which you would want to stake the reputation of an entire encyclopedia.

But if you look back at the history of famous encyclopedias, they are often riddled with bias and the spurious claims of the day.  Often too filled with original research from experts in the field who believed they were correct.  Take for instance the 11th edition of the Encyclopaedia Britannica from 1910-1911.  It’s in the public domain now, so you can just go and take a gander at it all over the internet.  But the content is so grossly outdated that even Wikipedia points it out.

This edition of the encyclopedia is now in the public domain, but the outdated nature of some of its content makes its use as a source for modern scholarship problematic. Some articles have special value and interest to modern scholars as cultural artifacts of the 19th and early 20th centuries.

Yup.  And this is where Wikipedia is valuable.  Articles don’t have to suffer because they were written incorrectly a century ago and scholarship has moved on.  The content of the article can change as new scholarship comes out and the piece as a whole can be modified indefinitely, subject to citation.

Could Wikipedia be a venue for original research and documenting the undocumented history of the world?  Yes, it could be that place.  Does it have to be that place?  No.  There are many other venues that can provide a place for original research, and Wikipedia can remain the tertiary source that it wishes to be.

The Stories We Tell

People love telling stories.  We’ve built a centuries old industry on it.  But this week I’ve been struck by the stories I’ve heard where things are unclear, someone puts a spin on it, and that becomes the story that everyone runs with.

The biggest one that’s been running around the last few days was the photograph of “The Kissing Couple.”  For those unfamiliar, Vancouver, British Columbia, broke out in riots a few days ago after the loss of the Stanley Cup.  People were burning, looting, pillaging and just basically going batshit crazy. This kind of blows my mind because Vancouver is like ultra-laid back. But hockey can make people lose their minds.  So among the rioting, the police came out, as did the news crews and one intrepid photographer took a picture that has been blowing up the internet.

The Vancouver Kissing Couple, from Getty Images

In the picture you see a riot cop with his baton and shield, a line of other folks in the far background, and smack in the middle is a man on the ground, holding a woman lying there.  The photographer didn’t realize what all was transpiring around him.  He just shot everything he could find and took the pics back to the paper to look at them with for the following morning’s print run.  It was there in the editing room that the photographer and the editor talked about what they both were looking at in the picture.  The photographer at first thought that the woman had been injured, but the editor said that they were kissing.

“I just saw these two people and I thought they were hurt … I didn’t really know what I got until the editor pointed it out,” he said.

And that’s where everything went haywire.  See, news editors know that everyone loves a good story.  That’s their job.  So they spun a story of the “kissing couple” photograph and it hit the internet.  And then EVERYONE saw it. Including other people who were there, and eventually the couple themselves.  As it turns out there may have actually been a kiss, but the woman was in fact on the ground because she was injured in the riot.

I love Kat Hannaford’s take on it at Gizmodo entitled “How Photos Lie.” But the problem with that title is that it’s not the photo that’s lying, it’s the story that was told based on the interpretation of the evidence second or third hand.  And is it a lie, per se?  I believe that this editor truly believed that he had some weird gem and that the story he was telling about the picture made sense to him.  He probably totally believed that this couple was just making out right there among the shields and the tear gas.

We tell ourselves these sorts of stories all the time when we don’t understand things objectively.  The story fills a need to explain the unexplainable. To wrap a narrative into something devoid of narrative brings it to life.  And we have told ourselves these sorts of stories for as long as stories have been told.  Constellations are stars that have nothing more in common with each other than their brightness and visual proximity to each other.  But we crafted shapes in the stars and told stories about these shapes as heroes and demigods.  When we first had a telescope powerful enough to see to Mars the observers noted lines on the surface of the planet.  So a narrative was crafted of “canals”, which to some signified that civilization existed on Mars.  This led to all sorts of speculative fiction of what race of creatures may live on Mars and would they militantly try to destroy us?

I don’t think that telling stories is a bad thing.  Stories are an inextricable part of us.  We need them to put things into perspective.  Objective data can only go so far, and sometimes we need to feel the data in a way that resonates with us as humans.  The problem comes when we need to reconcile objective reality with the story we have created.  As the photographer and his editor are finding out, reality is harsh for story tellers. Especially now when the story and the data hit the entire world at once, and can be disputed, contemplated, juxtaposed and verified in less than 24 hours.

And in honor of some delicious story telling, though in this case some total bald-faced lies, I leave you with a link to one of the most hilarious trademark dispute trials I have ever read about (though admittedly I have read probably only a few).  Over at Rock, Paper, Shotgun (a video game blog) they have the story of trademark litigant Tim Langdell who has been working this tired old dog of a case through the courts in England claiming that he owns the patent trademark on the use of the word “Edge” in video games forever.  The story of his pile of lies and manufactured evidence is so egregious that it deserves being read.