Joi Ito's Web

Joi Ito's conversation with the living web.

Yes! The woman speaking ahead of me gave the history of television and talked about Steamboat Willie. What an excellent segue-way into my Creative Commons "creativity is built on the past" riff. Steamboat Willie, as you will know if you read Free Culture, is the Walt Disney rip-off parody of Buster Keaton's Steamboat Bill Jr. and the first successful Mickey Mouse animation. Lessig likes to call this parody and remix creativity "Walt Disney creativity". The panel is about innovation and creativity in digital television and I'm going to talk about going beyond interactive television and allowing people to interact with the content as creators and considering the use of creative commons in the television context.

UPDATE: It was fun. Since "freedom of the press" was invoked by a previous speaker, I got a chance to point out that the US founding fathers were probably referring more to giving the people a voice and not about protecting multi-national media conglomerates.


Dear Joi:

Your "built on the past" riff is built on a fallacy. It is not the idea of"Steamboat Bill" that would be protected, but the unique expression of same. Moreover the law permits commentary and parody, which "Steamboat Willie" could offer as a reasonable defense. Copyright is designed to protect the unique expression of an idea, not the idea itself. And the threshold for originality is very low.
So no one objects to someone using the idea or the facts. The true value of it is the expressions and if you copy that outside the boundaries of Free Use, then you have infringed. And under our system, a small provider like me can sue too. I'm doing so now. (Check my The Fight For Copyright blog for a copy of the complaint.)

You go and create a cartoon character called Michael Mouse and I suspect you'll soon know all about reasonable defence, and a lot of other legal terms besides.

Francis. That's the theory, but they can sue you for just about anything, and when it comes to copyright and fair use, they usually do.

It is true that anyone can sue anyone else for anything, but the real problem in U.S. copyright law is structural. Proving actual damages is usually very difficult for the small provider and statutory damages are not available of Section 506 unless you registered within 90 days of publication. That makes most attorneys reluctant to take the case unless you can fund the suit upfront--regardless of the merits. This has led most Big Media companies to use the "Make 'em file" tactic where they refuse to respond, much less settle a complaint short of the actual filing of a lawsuit. IMO this will backfire because it makes them look unreasonable. There is not enough room here to go into all the whys and wherefores and I can't comment on the specifics of any case, including the ones I'm filing. but the Federal Courts love reasonable people.
Historically they also dislike bullies and try not to create safe havens for infringers. Case law is where these issues are really decided.
On the "Michael Mouse" thing: There is a doctrine in law of "substantical similarity." If MM has no original content of its own and is very obviously a derivative work without the essential element of commentary or parody, yeah, you're going to get sued. Disney also has a brand to protect and a trademark and you can't let that kind of challenge pass and keep either one safe. But the Paul Krassner
"Disneyland Orgy" psychedelic poster of the 1960's was the subject of a Disney lawsuit and survived it quite well because it was recognized as a parody that no serious person would mistake for the real thing.
Once again, copyright protect expression, not ideas or facts. No one has a monopoly on truth.

from the web:

"The blatantly commercial nature of the bootleg--as well as its potential to reach an audience far larger than the Realist--prompted Disney to file a lawsuit, which was ultimately settled out of court."

commercial parody is weakly protected here. Especially if you are parodying work A to target issue B, where you find no protection at all.

this avoids Joi's original point about "limited time", and what limited time meant in the 18th century. I personally don't have a problem with Disney retaining rights to Mickey forever, they've put a lot of money into him and deserve to milk him for all he's worth.

So I just don't see the benefit potential for 3rd parties to rip off Disney IP. Granted, perhaps raiding someone else's back catalog provides bootstrap potential for struggling, undercapitalized artists, but I just don't see the cultural benefit for allowing commercial exploitation of someone else's IP.

Troy has a very good point. I also don't see how artists can call themselves that if they are content to play in someone else's creative backyard. Where's the originality there? The Krassner poster was a cultural/political statement that fit the times. People who write fanfiction are tolerated because they are avid consumers of the core product, but they are fans who are playing rather than true creators. It can be a good training ground for a new writer, a way to get their feet on the ground with technique, but no one should mistake for being actually creative. That requires you to actually invent something new.
Ultimately, however, the fight over IP is always about money and property. It's not a new problem that people copy and sell other people's work. It is why the Statue of Anne was written and Immanual Kant also wrote about the problem in the 18th Century in "The Science of Right".
In the end all the excuses about providing the creator better access and distribution fail if the person making them hasn't done the right thing morally and legally: obtained permission and shared the revenue that results. It's always about the money.
If you are a struggling artist, you can't a make a career by imitating others and ripping them off. You have to be creative and original...and if you do that, you own it, not someone else.

So I like Lessig's idea. Keep copyright terms short. Allow people to extend by paying $1 a year. Save Mickey, release stuff people don't think is worth $1.

From Free Culture:

"Disney took these stories and retold them in a way that carried them into a new age. He animated the stories, with both characters and light. Without removing the elements of fear and danger altogether, he made funny what was dark and injected a genuine emotion of compassion where before there was fear. And not just with the work of the Brothers Grimm. Indeed, the catalog of Disney work drawing upon the work of others is astonishing when set together: Snow White (1937), Fantasia (1940), Pinocchio (1940), Dumbo (1941), Bambi (1942), /Song of the South (1946), Cinderella (1950), Alice in Wonderland (1951), /Robin Hood (1952), Peter Pan (1953), Lady and the Tramp (1955), Mulan (1998), Sleeping Beauty (1959), 101 Dalmatians (1961), The Sword in the Stone (1963), and The Jungle Book (1967)—not to mention a recent example that we should perhaps quickly forget, Treasure Planet (2003). In all of these cases, Disney (or Disney, Inc.) ripped creativity from the culture around him, mixed that creativity with his own extraordinary talent, and then burned that mix into the soul of his culture. Rip, mix, and burn."

Tes, but....
Disney did not take other people's property when he created new versions of those old tales but drew from the deep well of the Public Domain. Those added elements were creative and therefore entitled to copyright protection. What he didn't do was take someone else's recent, original, copyrighted work and copy it, distribute it or even make derivative works from it without licence. So this is an apples and oranges comparison. The length of a copyright registration is set in law and the Supreme Court upheld the right of Congress to set the term. (You have a problem then get the law changed.)
Yeah, the term used to be 14 years, but that was back when the average life expectancy was under 40. We're all living longer now, and part of the incentitive provided by the Constitution is the right to make a living from what we create, not just for ourselves but for our heirs. Eventually everything enters the Public Domain. It just takes longer now and it should. This gives people the incentive to come up with something fresh and original instead of plowing the same old creative ground again and again and again.

So you are conceding the fact that often creativity is built on the past. I'm not saying that people should be able to steal other people's work, but that creativity is built on the past. They extended copyright terms, not because we live longer, but because Mickey would have gone in the public domain. They could have protected him with trademark or something else, but by extending copyright, we've taken 99% of out of print books out of the public domain and into this DMZ where no one can buy them because they are out of print, but no one can reprint them. Again, think about Lessig's idea. If you want to protect your copyright past the 14 year term, just pay a dollar ever day. Everything else goes into public domain. Isn't this reasonable? Why lock it ALL up?

That's the librarian's argument, Joi. Which is why they have those special provisions in the Copyright Act. They get to make archive copies of rare work and circulate them. People can read them if they can find them.
A dollar a day? Most writers don't bother to register their work because they think they can't afford the one-time $30.00 fee. If you know anything about the tortorous path that film productions take, you would realize that 14 years is totally a inadequate time period. Some films, either original or derivative, take far longer than that to get produced. Talk about handing Big Media a licence to steal! All they'd have to do is to wait out the little guys.
You're talking about more money than people spend on food most months. You're also talking about more money than most genre magazines pay for a short story.
With all due respect, Lessig has never struggled to make a living as a writer or an artist or he wouldn't suggest such a regressive means of ripping off creative people. It is also a matter of choice. Of free will.
This is the same bullying argument that slash/dot and other enemies of copyright have used for years because they want free music and software.
It is very simple and says "I like your work but don't respect it...or you...enough to actualy pay for it, so you should be forced to give to me or anyone else because I don't want to pay."
As an artist, I not only want the right to sell my work but to control how it is used by others. The Droit Morale, in other words. And I want the right to withhold it too. For no other reason than it's mine. Now, all of the things you wish generally for copyright can be accomplished by contract, which will trump copyright every time...but it has to be in writing and a matter of an agreement between the parties, not a general fiat to take what you want and do as you will.
Yeah, this is about the money. It always is. You want truly creative people then you have to pay them. Let me give you an example of how tough it already is for creative people. The best writers in the nation come out of the Iowa Writer's Workshop. Many of them go on to other occupations because they can't make a living as a writer. One of them recently donated a library to the Workshop. He's the CEO of a big company, not a writer, but I think his generosity indicates where his heart is.
Finally "Out of print" does not mean you can't find it in a library someplace and they have all these loan programs. I've used them myself. Its just not that hard. And it is free. Your tax dollars at work.

I'm sorry, I meant $1 / year.

I would oppose a dollar a year on the grounds of practicality. Back when we had copyright renewals every 28 years, many were lost becuase the forms weren't filed on time or at all. Those copyrights later had to be restored by law.
The life cycle of an IP product in the modern market is very, very long. Disney's cartoons are a case in point. They have a perpetual market among children between five and ten years old. With music it's "Golden Oldies" and "Classic Rock" My 1970 interview with Frank Zappa still has intrinsic value with some of his fans.
Let me go back to this idea you expressed of something falling out of print and not being available because it is "locked up".
There are two problems here. For something to remain "in print" there has to be a market for new copies. The main reason that books fall out of print has nothing to do with copyright law. It is based upon a tax law decision on how inventories are valued called the Thor Power Tool Decision. Inventories have to be carried at full value and cannot be gradually depreciated. So old inventory is sold off for pennies on the dollar to free up space in the warehouse. Hence the "remainder" book business where you can buy a recent best-seller for five bucks. This is the highest margin item in the store, and the authors don't see any royalties from out-of-print books. Because of modern marketing and distribution practices "best sellers" are always over-printed. The reason is simple: You can't sell it , if you don't have it. Supply will always exceed demand and there will always be some left over. The incremential manufacturing cost of additional copies in hardbound is about two bucks each.
Thor Power Tool has pretty much killed the backlist for most publishers. Old stock gets dumped to make room in the warehouse for new titles. So "Out of print" doesn't mean the book is not available, even if it is an old title. Used books are so common that thrift shops and library sales have literally thousands of them and a very healthy online market has sprung up on eBay and Amazon Marketplace, which has 600,000 dealers using the system. The internet has created a global market and made FedEx and UPS the really smart dot com investment play.
Or did you mean that these titles are not available online? I'm building my new publishing company on the Tasini decision, which said that articles in print were not the same as those published online. Two different methods of distribution, two opportunities for the authors to get paid.
We're still working this one out, but without that ruling, the publishers would have continued to exploit rights they hadn't paid for. They used to sell secondary rights and split the money with the author. That was a fair arrangement.
Someplace along the way, they stopped doing that and just kept it all for themselves.
That wasn't fair. With electronic publishing, supply and demand concerns like those with printed books no longer apply. The supply is infinite and can meet all demands, but unless there is money involved, it is not worth preparing the material for distirbution. I can tell you, from recent personal experience, that it requires a lot of work to prepare something for this kind of publication. We're still working out the proper price point for these products. The distribution split is the same as with printed books. None of it is a "must read". but rather a "if you need it, you will buy it" proposition. It is also a mystery figuring out what will and won't sell. I have, at this writing, 66 titles up in two different formats. Seven of them provide 48% of the gross revenues so far. None of them are about Star Trek or Frank Zappa. Our best sellers are about Precision Farming and Virtual Museums and Telemedicine. Niche does not mean "small".
What it does mean that there is now a way for small individual creators like myself to directly tap into the traditonal distribution system for intellectual property. Copyright and DRM are an essential part of this process and must be protected from well-meaning people who don't really grasp the paradigm.