Joi Ito's Web

Joi Ito's conversation with the living web.

New York Times
Google Is Adding Major Libraries to Its Database


Google, the operator of the world's most popular Internet search service, plans to announce an agreement today with some of the nation's leading research libraries and Oxford University to begin converting their holdings into digital files that would be freely searchable over the Web.

It may be only a step on a long road toward the long-predicted global virtual library. But the collaboration of Google and research institutions that also include Harvard, the University of Michigan, Stanford and the New York Public Library is a major stride in an ambitious Internet effort by various parties. The goal is to expand the Web beyond its current valuable, if eclectic, body of material and create a digital card catalog and searchable library for the world's books, scholarly papers and special collections.

Harvard Pilot Project with Google

I just got a university-wide email regarding a pilot project that Harvard is starting with Google. It looks like Google will also be joining with other universities in this project, which will begin the work of digitizing, and in the case of public domain works providing public access to, the contents of the Harvard library system.

Sounds good. Now if only we can figure out a way to get more of the books, particularly those which are out of print, into the public domain.


Books out of print into the public domain? Would you care to expand on that? I mean, the fact that something is decalred "out of print" doen not automatically mean that there is not a market for that content in some form or the other.

For example: Some books or portions thereof are sold as electronic files through electronic database firms such as Lexis-Nexis.
Fiction books are often sold in other editions, years after initial publication, and this is true of some classics of history, journalism and other non fiction. Sometimes a work is "rediscovered".
Finally derivative rights for such books are often exploited years after they have gone "out of print". Putting something automatically into the public domain means that the revenue from, say a film or television drama based on the work , would be lost. How long ago did LeGuin write "Earthsea"? Do you hold that she shouldn't be paid for these rights now that someone has gotten around to making it a TV series?

Francis. Since copyright has now been extended to something like 70 years after the author's death, there are many books where the publisher, author and any known copyright holder do not exist or can not be contacted. Many argue that the number of books that have entered into this state are a majority of books. Lessig once proposed that the copyright office require a $1 / yr fee to keep a copyright alive past some minimum term. This would require the work to somehow be "alive" and the copyright holder to be contactable. I think this is reasonable. Another idea, if the author is still alive but seems the value of contributing a work to the public domain after the majority of the initial commercial value has diminished is the Founder's Copyright:

The Framers of the U.S. Constitution understood that copyright was about balance — a trade-off between public and private gain, society-wide innovation and creative reward. In 1790, the U.S.'s first copyright law granted authors a monopoly right over their creations for 14 years, with the option of renewing that monopoly for another 14. We want to help restore that sense of balance — not through any change to the current laws — but by helping copyright holders who recognize a long copyright term's limited benefit to voluntarily release that right after a shorter period.

How it Works

Rather than adopting a standard U.S. copyright that will last in excess of 70 years after the author's lifetime, the Creative Commons and a contributor will enter into a contract to guarantee that the relevant creative work will enter the public domain after 14 years, unless the author chooses to extend for another 14. To re-create the functionality of a 14- or 28-year copyright, the contributor will sell the copyright to Creative Commons for $1.00, at which point Creative Commons will give the contributor an exclusive license to the work for 14 (or 28) years. During this period, Creative Commons will list all works under the Founders' Copyright, along with each projected public domain liberation date, in an online registry.

With all due respect, do you have a source for those statistics, or is that just an assumption? We're talking about a marketplace and it has been my experience that when something retains value, ownership will be claimed. We have a registration process for copyright ownership. If there is no registration no lawsuit for infringement can be brought, so therefore logically, the copyright has been for all intents and purposes, abandoned. Even if a heir were to emerge later, registration is required and suit can only be brought in a Federal Court. Creative Commons' scheme is a unnecessary level of bureaucracy. Added to your problem here is the fact that copyright is not a single right but a bundle of rights which can be divided into all sorts of sub classes and derivative uses. Then there is the issue of overlapping copyrights. For instance, when a song is performed, the sheet music is one copyright, the sound of the music another copyright and the artist's performance of same yet another. You can copyright the design of a truck stop (there's a famous case about that), or the diagram of choreographer's dance , which, again is not the same work as that of the artist performing it.
On a more personal level I have a stage play which was produced and published in 1988. Under your scheme, the copyright would have already expired, which I think would be very unfair because what keeps it from being done again is not the quality of the work but the fact that it requires so many actors to perform. I can still offer the text and make money from that, which I will do shortly.
As an electronic publisher, I have stayed with my own work in the first phase. The reason for that is not so much ego as convenience. I don't have to negotiate with myself.
I may, in the future, publish the work of other writers and I will have no problem paying the a fair royalty if I do. I would only do so if the work has value in the marketplace. I'm not in this for fun, but for money. So I'm not interested in ripping people off. It's bad for business.
You guys , on the other hand, simply don't want to pay for the material. Otherwise you'd try for some sort of licencing scheme like the UK's public lending right, which provides writers with a nice little bit of extra income. What doesn't go to individuals goes to writer's non-profits.
I would say if you can't make a fair royalty part of your business case then you should not be trying to republish this old material anyway.
Just because the Internet makes it easy to republish everything means that a demand for everything is present or will emerge.

From the Eric Eldred Act FAQ

We estimate that of all the work copyrighted between 1923 and 1942 (the first twenty years affected by the Sonny Bono Act), only 2% has any continuing commercial value. If a work has no commercial value, then there would be little reason for the copyright owner to pay the renewal fee. That work would therefore quickly pass into the public domain. If the proposal were adopted as outlined, then within three years, over 90% of the copyrighted between 1923 and 1952 would be in the public domain. This would be massive increase of material into the public domain, through a mechanism that would create a cheap and useable record of the material that remains under copyright.

Well, one of the problems with renewl fees is that we used to do that and it did not work very well. That was the 1909 Copyright Act. We ended up restoring a bunch of copyrights that had fallen out and then extending them. By the way, does everyone understand that the 1976 Copyright Act was our attempt to bring our practises in line with those of the rest of the world? It was the implimentation of us signing the Geneva Convention. We also signed WIPO, which gives authors greater rights. Including moral ones.
But to return to your original point, why are you so eager to place all that material in the public domain? Please don't tell me it's for scholarship because libraries and archives are already allowed to make Fair Use copies of rare and hard to find works and to exchange them freely. I'm a researcher. I've done this myself. To make them available electronically? Here's something that turned up in my own research on databse usage in public libraries. They have millions of articles available, but the actual users number in the dozens or hundreds at any particular branch and, in the case I found, the actual cost per article accessed works out to $1.65 each. In other words, it still costs lots of money to get things distributed that way. The aggregators of these materials make money and so do the publishers, who get between 30 and 70 percent of the gross. The people who get screwed are the original authors, who get nothing , even when they own the copyright.
Your dream of freely available information without cost to the consumer overlooks that there is a cost; paid for by public funds derived from taxes.
And that is true of all of the archives that offer material from the public domain. The archive "Documenting the American South" is a case in point. It is housed at UNC Chapel Hill and was assembled by paid professionals, not volunteers. The funds came from government grants and private donations and it is a public good, but please don't think it was free.
None of this stuff is free and if you put all that material into the public domain all you do is screw the people who created it in the first place.

Let me add one thing about fees for renewal. The Patent Office does this; fees to maintain the patent. Large corporations can afford it and do. Small inventors end up choosing between paying the fees and feeding their families. Commercial viability should not be the driving force for creating copyrightable work. Especially in music, where a new composition can take years to catch the public fancy. If you want people to continue to be creative then you have to give them the chance of reasonable rewards.

This is a good move by Google. This move would only enhance their reputation as its email service (Gmail) is the most sought after one these days. Even I got lured into subscribing their email service after coming across some positive reponses about it at the forum of, where I am a registered member.

Francis: I think it is a matter of degree. I think to protect a patent through the lifetime of the patent in major markets costs around $700,000 or so. Lessig is suggesting $1 / year for copyright. Don't you think 70 years after you are dead is a bit excessive for the term? It's unlikely you'll be getting much incentive at that point. Google and the libraries are dramatically lowering the cost of making these publications available. Again, I think there is a role for electronic publishers like yourself, but don't you agree that there must be a vast amount of knowlege where it would make sense to make available in electronic form on the Internet? Google and the libraries are volunteering to pick up the cost as far as I understand.

Joi: Most intellectual property is created by corprorations and similar entities which have an indefinite life, so no, it is not too long. Besides, this is a global standard set by international treaty, not just a matter of U.S. law. We can't change the law without aborgating the treaty and we're already accused of being arrogant for doing that with other agreements. It's a non-starter. Google is providing search, not the documents themselves. Those they sample. I am a Google Print Partner, so I am going here with what I've been told. Lessig's idea of one dollar a year doesn't begin to cover the actual cost of adminstering such a scheme. The Copyright Office loses money at $30.00 per registration and has to be subsidized by tax money. And while that might not seem like a lot of money, it is enough that most freelancers never bother to register their copyrights. Neither , by the way, do most publishers. They simply rely upon the notice to scare people off infringing.
The problem with copyright law is that it applies across the board to all forms of expression. You and I are talking about text. But, if you limit copyrights for text you also limit it for music and art. Imagine an artist whose major works are suddenly appropriated for advertising or placed on t-shirts. Not only would this be a violation of moral rights, but also outright theft of a revenue stream. Whether or not such a use should be made of a creation would be beyond the creator's control. It is up to her/him to control such use, but only Copyright and other laws
provide the legal muscle to do so.
The whole issue of electronic access to work is one of convenience. If the work is in print it is available. I've recently completed a Civil War novel. 80 percent of the books used in research were purchased, most of them used. The balance were checked out of my local library, through inter library loan or were sources found online, provided by educators and in the public domain. Very little of the reading was actually done online. Too hard on the eyes and back. To really use these materials I had to print them out and study them.
Depriving copyright owners of their royalties does not automatically make these materials available. It's a wonderful vision, but the harsh reality is that someone will have to be economically motivated to publish them again; and that costs money; a lot more money than the royalties will. The basic question is there an economic justification; a pressing need to deprive creators of their rights?
You have not made a case for that, either from a business standpoint or a legal one. If someone really needs this information it can be found in printed form and copies legally obtained under Fair Use. Creative Commons is a solution in search of a problem. Electronic distribution will not automatically mean that usage will expand. The results at my local library seem to indicate that very few people actually go swimming in this ocean of information. Some very large corporations have made billions of dollars providing it, however.

They get that money from the libraries who get it from taxes and donations. It only looks like it is free; it is not.

An added note: I used the term "in print' in the last post to mean if it had ever been printed, not if it was still in a publisher's catalog. Most conventionally published books go out of print rather quickly these days, not because they lack merit but because of a tax ruling called the "Thor Power Tool Decision". This was about the accounting rules on inventories of produced goods, not literature, but it affects how long a book stays in print. Backlists are very thin and an entire industry has grown up on "remainder" books, which are sold for pennies and for which the authors get no revenue because they are considered scrap. Because of the "First Sale" doctrine, authors also get nothing from the sale of used books. Recent marketing moves by Amazon have caused a lot of consternation among publishers and writer's groups who see that recycled used books hurt the sale of new, royalty producing ones. The online market for used books will have an impact on what gets published and a lot of marginal books would disappear entirely were it not for Print-on-Demand and electronic publishing. In those instances, suppy is infinite and can meet all demands and the work never goes "out of print". So all anyone has to do to defeat your "out of print" scheme is to create an electronic version; something which big publishers and small ones also now do routinely because the technology is so easy to use. If you have a book in print, then you already have an electronic version. So what does "out of print" mean anyway?

The problem with copyright law is that it applies across the board to all forms of expression. You and I are talking about text. But, if you limit copyrights for text you also limit it for music and art. Imagine an artist whose major works are suddenly appropriated for advertising or placed on t-shirts.

Alternately, imagine a world where the Shakespeare estate still has complete control over the works of Shakespeare, where "West Side Story" and "Rosencrantz and Guildenstern are Dead" never came into being... Where you can only perform plays the way that Shakespeare performed them, in order to be true to what the estate conceives of as his "vision". Would Shakespeare be nearly as alive and vibrant as he is in our world, where his work is in the public domain, and free to be re-interpreted and made relevant to our times?

Let me tell you a story. Some of my friends at college wanted to put on a production of "Waiting For Godot". However, they wanted to use women in the leading roles, partially because they thought that would be artistically interesting, partially because they happened to have more women than men. The Beckett estate said "no", that was not Beckett's vision. I've heard of other cases where people wanted to use black actors, and were also told that they could not do that. Now, just imagine if we had to stick to the same genders in Shakespeare's plays as Shakespeare used in his time. All of the female roles would have to be played by 15-year-old boys. Which isn't necessarily a bad thing, but sometimes women like to do more than sit in the audience, y'know.

There comes a time when you just have to let go. Much like your children, your art comes through you but not from you, to paraphrase Kahlil Gibran. Like an overly protective parent, exerting too much control over your art can actually hurt your art, and if you are too oppressive, you can kill your art as surely as if you smothered it with a pillow.

A classic example of such "dead art" is Mickey Mouse. Wendy Seltzer blogged an excellent New York Times article about how Mickey has become worn out and is losing the ability to engage audiences. (Ironically, the article is old and now only available with a subscription, so we wouldn't be able to refer to it in our discussion if I hadn't found it here through Google.) Naturally, if you don't let people bring Mickey Mouse into their lives, to mix him into their world and update him for the times, then he's not going to be relevant or alive for them. Today's children watch Power Rangers or Spongebob, not Mickey Mouse.

If you love your art, then you should know that it deserves better than to be chained to you for eternity. Are the children of your mind to be so much less valued than the children of your loins? If you love somebody, set them free.

Copyright is a product of egotism and greed.
It is of the utmost arrogance to think that we own anything, let alone something so abstract and fleeting as "an idea".
Copyright was created because the socioeconomic model that forced it into existence made no other provisions for the sustenance of the artist and thinker. The legal entities known as "corporations" piggybacked on it and now control it outright. Corporations control culture, the product of art and ideas, to influence the markets they reap financial benefit from.

The moment you externalize any thought, in whatever shape you do so, you are sharing. You relinquish any and all "ownership". No, that is not a legal precept. It is a philosophical one. The philosophers always win. Always. ;)

Boy. My response to the last two posts is that you folks really should do your homework. The first law of Copyright was the Statute of Anne in 1710 and its expressed reason for being is the harm done to creators by unauthorised copying of books by other printers. The technology made it too easy to make copies -- does any of this sound familiar?
Therefore the whole Shakespeare analogy is false , since he died more than a hundred years before that. (You can't make law retroactive. His work has always been in the public domain.)
As for "Waiting for Godot", there will come a time when that slides into the public domain and those experiments can be performed. Until that time Beckett's estate does have the right to enforce his vision of what the play should look like. This is what is known as a Moral Right; the right of the artist not to have his or her work distorted, misinterpreted or defamed. I suppose it would be "interesting" to have this play perfomed in the nude by characters wearing Mickey Mouse ears, but, speaking as a playwright myself, the fact that something can be done does not automatically mean that it should be done.
(I point to that production of Richard the Third in "The Goodbye Girl" as a horrible example).
It is rather arrogant, and the mark of an amateur , to try to replace the vision of the creator of a work with your own, and certainly not to be done without permission. And as for relinquishing control by expressing a thought, that's another notion that smacks of the amateur. That way lies anarchy and bad art. That would permit a pornographic Mickey Mouse cartoon, which might amuse a certain kind of adult, but would harm a lot of children as well as Disney's considerable investment in that brand.
Copyright has nothing to do with ideas anyway. It does not control ideas. It controls the expression of ideas. There is nothing in law or custom to prevent you from writing your own abstract four character play about the lonliness and absurdity of life; you just can't use Mr. Beckett's characters and dialog to do it. You are forced to be original. Most of the whining about wanting better access to materials protected under copyright seem to come from people too lazy or dull to form their own original thoughts or to undergo the rigorous process of getting those ideas accepted in the marketplace.
As for monolithic corporation control of art and culture, that too is an asurdity, especially when we have the World Wide Web which allows all sorts of divergent and minority views to be communicated on a global scale. It greatly eases the entire process of distribution and copying; too much so since so many people are somehow convinced that simply because they don't pay admission at the door, there are no costs involved. Any artistic expression requires some kind of expenditure by someone. None of it is "free".

Francis: ***ny artistic expression requires some kind of expenditure by someone. None of it is "free".***

Which drives to the question on how do you define art. And if Art is a merchandise. I think there are many differences involved in the expression of art and the people paying to access this expression.

In the case of music for example, there are differences between a CD (recorded piece of music in thousands of unit) and a concert (a unique event). To pay for the concert is something which is obvious, you pay for the expression of art, for a unique experience, etc. When it comes to the CD, you don't buy anymore the expression of art, you pay a product mainly. You pay a process. You pay an industry and you pay the chimera that an artist is living from you buying his/her CD. I would love to see the real statistics of distribution. How many musicians are really able to live from their music? I'm pretty sure it's a speck of dust.

The music as a product has found now its limit. We are able to reproduce music with the same quality, then the notion of product (physical object) is vanishing. Then stay the expression of art. Francis says there's a market. I have seen a market for product (physical object), not for art, except when there is a concert. People don't want to buy the expression of art, people don't want most of time pay for art at all, because they mostly don't care. Call that lack of education, etc. it's not the problem. When you pay for a concert, you pay for sharing a moment with the artist and the people around, you pay for a unique and live performance.

The literature and the books have not yet reached this point. It will soon. It's a matter of years. As soon as the price of e-book will have dropped and the quality of reading with e-ink and digital papers will have increased. The book industry will face exactly the same struggling than the music industry. The writer has no performance. Then will vanish the idea of writing and win money from writing. The 20th century has brought an illusion, the massive art merchandizing. All artists before that were mainly working, selling their talents for commands, writing in newspapers, etc.

Ask painters, sculptors, if they live from their art, most don't. Most of the writers don't live from their art. Music, a few of them. Copyright is a chimera to justify the bucks of some big industries, using the metaphor of protecting the huge numbers of small individuals.

And the last, Francis you produce art now, not because you paid for it, but because you have experienced it, because you have been nourished with the work of others, because you have felt it, because you have seen it. Imagine that the art place is your life. Now walk in the streets, and put a shade on your eyes for 90% of the things, you see. You don't have the right to use them, they are copyrighted. You can use for your inspiration and your own creation the only 10% that you have seen during the day and which are part of the public domain.

Karl: You have a very romantic view of the creative process. Unfortunately, it has little to do with the working reality of those who choose to make a living by being creative. You still have to pay bills. You can do that by doing work that brings in money, if not satisfaction and if you do too much of that you find that you are no longer an artist. The process these days is such that if you are to reach a large audience you must deal with the practises and demands of some very large organizations that have their own customs which you must observe in order to gain access. Sometimes, even with so called "non-profits", the process becomes corrupt. The nature of the work is twisted. I've dealt with all kinds of people who felt their vision (amd politics) were superior to mine and that gave them the right to alter my work to their purposes, whether I liked it or not. Hobson's choice rather than a real one. Copyright is my only protection from such people. It leaves control in my hands. It also makes sure I can paid for my efforts..and getting paid is what separates the professional from the amateur in this society. It is the ultimate applause! Like most creators I satisfy my vision first and hope it will sell. I don't alter it beyond recognition to make the sale. I've done it this way for over 35 years now and sold a lot of writing. I've made a living.
As for 90 percent of everything being copyrighted, like most people here you seem to miss the point. So I'll say it again: Ideas cannot be copyrighted. Only the expression of ideas can. Until you understand that, you understand nothing about this subject. Copyrights expire in time, so all expression become public domain. It may not be within your life time, but it will happen! Distribution and preparation of material are the primary costs for most consumers of any intellectual property, not creator's royalties. You are not going to make material instantly avaialble by ripping off creators. In fact, you make those creators less likely to make and distribute original work. If their only reward is to be the immediate, then where is their incentive beyond that transcedent moment? It may be a fine experience, but, again, doesn't pay the bills.

"Sounds good. Now if only we can figure out a way to get more of the books, particularly those which are out of print, into the public domain."

Why not just help make that which is already in the public domain more accessible?? Distributed Proofreaders( is an effort I started in 2000 to do just that.

I believe the best way to expand the public domain (get laws changed) is to show that there is a need/desire _for_ a public domain. DP isn't going to get there anytime soon but it would be great if efforts like Googles and Million Books could put _all_ public domain (talking U.S. law here) books online.

Charlie Franks has a good idea there. Note, however, that again there are costs, if not in cold hard cash, then in donated labor. Demand does not arise for old materials simply because they are available.
Anyone who has ever taken a course in Elizabethan Theatre soon comes to realize why Shakespeare continues to be popular and performed and most of his contemporaries are not. His plays are simply better. And even among the 36 plays recognized as entirely his, only about a dozen are safe bets for a company dependent upon public goodwill and audience support in the form of ticket sales.
And so it is with most of what is out there. Read the novels of John Estin Cooke lately? The humorous ramblings of David Hunter Strother aka "Porte Crayon"? These were best sellers aruund the time of the U.S. Civil War, but only of interest to scholars of that period now. Say what you will about popular media, it is more likely to survive. Every "classic" was, at one time, part of the popular culture. Otherwise it would simply be another academic curiosity.
I think that public domain publishing online is useful, especially for all the kids who have term papers due. It preserves the great fund of knowledge of the past. But , let's face it, most of it occupies a very narrow niche in the marketplace. I am still left with the deep suspicion that the desire and demand to convert works still under copyright to public domain has little to do with improved public access to information (especially given the alternatives available under "Fair Use") and a lot to do with getting something for nothing.

Francis: "You have a very romantic view of the creative process."

Hehe not really. Quite the opposite. Artists can't live of their art most of the time. That's a statistical fact.

For creative work which is broader than the ones of artists, coming from many communities (research, computing, artists, etc.) I can tell you that the copyright is wrong in many contexts. As I said you miss the target IMHO.

The problem is not someone else reusing your work in a small town to play for example your work, but more someone who will industrialize your work and sell it, and make money of it. It's the part you can't cope with and this is about lack of equilibrium in power, not about art.

And just let me stand on that opinion, we can't make money (most of the time) from your own art production. Yes I know it's shocking, but it's not a romantic view. That's the reality :)

Karl: Let me see if I understand the argument of your last post: Most artists can't make a living from their work, so those that do should not be allowed to either? You would reduce us all to the level of the amatuer and the dilitante? I don't get that attitude at all. Are you afraid of those few who excel at their art or craft and are able to capture the popular imagination and actually make a buck or two? I put myself in that category, by the way. I've been able to support myself as a writer for a number if years now. And I know a lot of other people who also do this,quite happily.
They do it by not trying to get every last
penny. You can buy my articles online. I give up more than half the price to distribution fees; happily so since without that incentive to others I would likely have fewer sales. You are only powerless in these situations if you don't protect yourself by claiming ownership in what you've created. The copyrights on all that work is properly registered. The notices are there. And I get paid. The two public domain articles I put up don't sell because they are not protected. They are copied.
So much for the theory that people will chip in out of gratitude for having them.
I am sorry you can't find a living from what you create, but please don't blame it on the copyright laws. Rather, blame your lack of self regard and business skills.

Francis, you lean VERY heavily on the concept of fair use. The problem is that fair use is the right to hire a lawyer. Those who do not have the money to hire lawyers and fight a legal battle do not have fair use rights, they have to fold the second they receive a legal threat. As Lawrence Lessig says, "regulation by law is a function of both the words on the books and the costs of making those words have effect."

I was involved in a legal case where we had such a strong claim of fair use that the judge ruled (in our favor) that nobody could have reasonably believed that the information we published was protected under copyright. However, the case would never have gone to court if we didn't have pro bono legal support from the Electronic Frontier Foundation and the Stanford Cyberlaw Clinic. Many people had published the same information before us, received legal threats, and removed the info from the internet rather than getting into a fight with a multi-billion-dollar corporation, and as we are poor college students, we were on the verge of doing the same before we contacted the EFF. Organizations like the EFF have limited resources, much more limited than the corporations they battle, and most people who do not have the backing of a corporation will never be able to assert their fair use rights.

Maybe it's OK if only people who already have the backing of a multi-billion dollar media corporation can pull together the money to make a Moulin Rouge (I think that everyone should have the freedom to remix the culture around them, but we can come back to that). However, you seem to believe in a permission culture, where you have control over your characters and nobody can use them without your permission.

The problem with that is that we communicate through shared symbols and shared culture. You could write a beautiful novel, but it would be useless if nobody around you understood English, they would consider it gibberish. If you want to criticize a work of art and the worldview that it promotes, the most emotionally powerful way to do that is to use pieces of the art that you want to criticize. One example of this is the "Food Chain Barbie" case, which you can read about at Barbie is a very negative part of our culture in a number of ways, historically she has promoted impossible physical standards for women to meet and a materialistic and shallow lifestyle. You could make your own politically correct doll to try to counter Barbie, but if you want to really feel the problems with Barbie in their guts, you're going to need to use Barbie, that's the shared cultural symbol that has meaning for everyone involved. (See also the Barbie Liberation Front, which I'm sure would probably be illegal somehow under the DMCA)

If I want to criticize something you say, I'm going to have to use the words that you said. If you have complete ownership over your words and you can control how people use your words, then criticizing you becomes difficult. Imagine that you write a pamphlet, and I want to respond to it, but since you know that I disagree with you and I'm going to tear your arguments apart, you refuse to give me permission to quote you. (yes, this should obviously be fair use, but we've already gone over that)

Take Outfoxed, a documentary criticizing Fox News for being biased. They had hundreds of volunteers watch Fox News 24/7, to collect footage of the most egregious examples of bias, and they used these clips in their film. Now, they could have made the documentary differently: they could have just had a bunch of "experts" sitting together in a room talking about how biased Fox News is, but why should you believe them unless they can show you the evidence? Unless they can show actual examples of Fox News being biased, then they can't make a convincing critique.

I fail to see how it's different if we're talking about art instead of arguments or copyrighted "news" footage. Art can be used to persuade people, it can be used to advance political agendas, and it affects the society that we live in. Sure, it might be nice if you're a good artist and you want to stop evil corporations from perverting your work, but what if you're an evil corporation and you want to prevent people from creating art that might prevent other people from buying your products? (Yes, yes, that should be fair use, but give me the lawyers to fight Disney or Mattel!)

To summarize, one very important reason that you want to be able to use popular artwork without permission is for the very reason that sometimes you DON'T want something completely new, you want to be able to build upon and critique what is already out there, otherwise it won't have any meaning for the people who see it. And given our legal system and our society, and the ridiculous length, breadth, and scope of copyright law today as opposed to what it was when the founding fathers wrote it into law, fair use is inadequate to protect our liberty and our first amendment rights.

I never said the world was perfect or that a powerful entity with a Brand to protect would not use every means at their disposal to do so.

They always sue, even if they haven't got a case, simply to keep people like you at bay. Under the law, by the way, that's allowed if there is even the slighest possibility that they might be right. This is how the system works. It's not even evil. Think about the very large number of people whose jobs revolve around those products. Protecting them is agood thing, not evil. Changing the copyright law won't change that paradigm.

You were able to stand up to them. Good for you. This is why we have those non-profits; for balance. They too are part of the system.

The essential principle that everyone seems to miss here is that this about one thing; money! You can't avoid paying for someone's intellectual rpoeprty any more than you can avoid paying the rent. You can't damage someone's property without them wanting a piece of your hide as compensation.

And I don't want to be too harsh, but let's also remember that copyright infringement and related actions are not just torts; but also crimes. It seldom goes that far, but a violator can be prosecuted both ways.

I agree that the playing field is uneven. It is one of the things I am fighting against. I want the big media organizations held to account when they violate the law as well. Care to chip in for my legal fees? Case law is essential to establishing what can and can't be done. You've had some experience with that. Sometimes someone just has to stand up and say "enough".

Speaking of re-mixing culture and bulding upon what's out there, let me add some notes on the copyright of designs, which is a relatively new area of the law and is based upon a provision of the WIPO treaty.
The aesthetics of a design can go far beyond a simple logo in establishing a brand. It can become "useful". In other words, a unique design based upon scientific and/or management principles can have real value. This goes beyond knocking off the look of a handbag. A case in point is the Flying J truckstop case. Flying J is a privately owned, national chain of such establishments here in the United States.

Their truck stops do more than sell gas and oil and repairs. The layout includes restaurants, shops, shower booths, abarbershop, and at our local one, even a chiropractor. The design element here is the way the place is laid out; the floor design. Flying J spent a lot of time and moeny developing one that would maximize the efficency of the operation. One of their competitors copied it. They got sued for copyright infringement, lost and ended up owing almost four million dollars to Flying J in a judgement. That was for one truck stop and was "actual" not "statutory"
damages. This competing truck stop was competing for the same customers. The efficent design was part of the Flying J brand. This is a fascinating case which demonstrates why you just don't casually take other's intellectual property and add your own take on it. When you do that you take away something from the original without the owner's consent and to their possible harm. At the core, this is the same as running off copies of a book or article and selling them without permission, something for which a number of college copyshops have been sued. (They all lost or settled).

The only way to avoid this is to buy the rights. One is reminded of the screenwriter in the movie "The Stunt Man" who complained. "How woudl you feel if someone told you your daughter was a dleightful little girl, but would look even better with out one of her arms?"
The right of the artist to protect his or her vision is an inherent right in copyright.

Copyright law also can make sure you get paid what you're due. I used to know the lawyer who produced the film version of George Orwell's "1984". He spent years putting it together and the studio was trying not to pay him and the Orwell estate several million dollars owed for the rights when the film was completed. He used copyright to get an injunction and threatened to shut down the film's premiere. They cut him a check on the spot for the millions of dollars he and his clients were due. This was not extortion, but simply getting the promised payment from the big movie studio distributing the film. He was the little guy. We have to get past this idea that copyright law is only for the benefit of Big Media. We can use it too.


I would suggest that you review your history regarding the Statute of Anne. The British Parliament was being pressured by the Stationers' Company to pass legislation that continued their perpetual monopoly over all publishing rights in England. That's right--ONE company had a monopoly over the sole publication of every single text in the country. The Parliament intentionally made that monopoly for a very SHORT, LIMITED term in order to break the power these publishers had over these works. This is because monopolies of information and ideas lead to things like censorship, illiteracy, and unreasonable costs for said information. Once works were released from this monopoly, other competing publishers were free to publish the work more cheaply, leading to a healthier competitive market and more access to the information and ideas by the average citizen.

The Framers of the U.S. Constitution were keenly aware of this history when they included the Progress Clause in the Constitution, which is what our intellectual property is based on. It, too, specifies that such a monopoly shall be for a LIMITED TIME.

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December 14, 2004 11:42 PM

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