As we’ve pointed out before, copyright began as a compromise censorship law, and is still frequently used as a means of censorship today.
The U.S. Senate is not being overly subtle about it lately, either. The so-called “SMART Copyright Act of 2022” would effectively force online platforms to use content-monitoring software designated by the U.S. Copyright Office to detect user-uploaded content that some monopolist asserts violates their monopoly. Well, technically, the platforms aren’t required to use the content-monitoring software — they would just face absurdly, existentially high penalties if they were found guilty of copyright infringement and had not been cooperating with Big Brother. To be fair, the platforms can make their own choice, right?
So we would now have enforced running of government-designated code, in addition to the already well-documented problems that have plagued automated content-monitoring software for years:
Lots of false positives, causing content to be mistakenly taken down by the hosting service with no practical way for people to argue that the system has made a mistake. Here at QCO we argue that censoring non-confidential content is inherently a mistake anyway, but even if you think copyright justifies that censorship, the fact is that automated monitoring systems make lots of mistakes even on their own terms, and no platform provides adequate recourse to the victims of those mistakes, because…
…this bill, like all the others before it, contains no meaningful penalties for false claims of copyright ownership or of infringement. Instead, all of the terms favor the content monopolists: if you share things that they legally monopolize, then you (or the service provider) pay a price, but if the monopolists wrongly claim that you have done this, there is no penalty to them for being wrong about that (and, in general, you’ll still pay the price — your stuff will be censored anyway).
An automated system to detect, flag, and take down content from online services is, by definition, a technical system for implementing censorship. As it increasingly becomes a government-directed censorship system — which is what this bill is the start of — the temptation will become irresistible to use it for purposes beyond copyright-based censorship. “Oh, hey, we’ve got this great content ID system in place, so now we can use it to flag all this other bad stuff too.” For “other bad stuff”, substitute pretty anything anything you think a DOJ lawyer might be able to persuade a judge to set aside her 1st Amendment concerns for: illegal (ahem) foreign propaganda trying to influence elections, medical mis-information, information about the activities of U.S. military forces overseas…
Government-chosen, government-mandated automated censorship technology. If that sounds like a bad idea to you, then (if you’re in the U.S.) please get on the horn and let your senators and representative know.
By the way, in addition to the bill’s basic flaws of premise and design, it is also extremely poorly drafted: it’s full of gaping meaning voids like “…a broad consensus of copyright owners and service providers in an open, fair, voluntary, multi-industry process…” and “…a broad consensus of relevant copyright owners and relevant service providers, in an open, fair, voluntary process…”, etc. It is, essentially, an invitation to judges to slap arbitrarily high penalties on any platform that accepts user-generated content but does not get in line and obey the software code and content rules that Uncle Sam tells them to obey.
If there’s a bright spot here, it’s that legislation like this will only drive people and platforms toward peer-to-peer encryption and platform-opaque systems even faster than they were already being driven there by pervasive surveillance and eroding civil liberties.
Famed animator (and QCO Artist-in-Residence) Nina Paley has finished a project that she’s been working on for nearly half a year: Apocalypse Animated, animations to accompany the complete Book of Revelation, the last book of the New Testament.
Enjoy the 3-minute trailer, then jump straight in starting at Chapter 1. The animations, in combination with the actual words of the King James Bible, are irreverently powerful — which is not a collocation I ever thought I’d write, but Nina Paley has a way of defying expectations.
She has also released the full-resolution, uncompressed video files under a Free license, because she wants people to be free to build on her work as she builds on the works of others. In her words: have at it! You can re-use material from Apocalypse Animated however you are inspired to. As Nina points out, the videos can be looped, so if someone wanted to narrate the Book of Revelation accompanied by these videos, they could do so. As she also pointed out, Apocalypse Animated would make a great eBook too, if only eBooks supported animated GIFs. But maybe some eBook technologist out there knows a way to make it work? Note that if you want to use the materials in a proprietary project, then you should contact her for a license waiver, but otherwise you don’t need to ask her permission at all.
A lot of the visual vocabulary of Apocalypse Animated is part of MysticSymbolic, Nina Paley’s experiment with Atul Varma. If you like Apocalypse Animated, look in MysticSymbolic for more (see here for additional information).
The Internet Archive has been taking some heat for their National Emergency Library initiative. I think the NEL is a very, very good thing, and I’d like to explain why.
First, you need to know what the National Emergency Library is. It’s just a change in access policy: For the duration of the COVID-19 crisis in the U.S., with millions of students forced to do their learning at home, the Internet Archive is removing the artificial scarcity of “lending limits” on the digital books they have copies of. That’s a lot of books — the Archive has one of the largest collections available online.
This temporary suspension of lending limits upsets the fiction that digital lending is like physical lending. In a physical library, when I borrow a book, that’s one less physical copy for the library to lend out, and when all the copies are lent out, then no new borrowers can get that book until someone returns a copy. While no such limitation needs to exist for digital books, copyright law in practice forces digital libraries to behave as if they were lending out physical copies anyway. They have to pretend that they have a certain number of copies, and when the “last” copy is lent out, then they can’t “lend” (i.e., make and send) a new copy until one of the existing copies is “returned”.
Returning a digital copy is, of course, a fundamentally meaningless notion, but what it boils down to is the reader running some piece of software that promises to the Internet Archive that the reader’s copy of the book is deleted on the reader’s device now. The Archive then marks that copy as “returned”.
Why a Suspension of Lending Limits Makes Sense Now.
Even if we were to believe the noblest and most public-spirited interpretation of copyright law — that a time-limited distribution monopoly motivates the creation of new works — we must still admit that it is a compromise designed for specific circumstances.
Those circumstances always included a functioning physical marketplace and distribution system. Libraries obtained and lent books within that context, and until now, in an academic context that meant physical access to the library by students and physical proximity of the students to each other: that is, the possibility of multiple students learning from the same source material — whether physical or digital — together in person.
(By the way, there are reasons to be skeptical about the premise that copyright was designed for public good rather than for private monopoly interests in the first place, but let’s grant the premise for the moment, in order to give the other side’s arguments their strongest hearing.)
Suddenly, because of a global pandemic, circumstances have drastically changed. The compromise should change with them.
For one thing, the notion that students, now “attending” class from home, would still have access to the same books they had access to before is obviously wrong. Many of the books in school libraries are not digitized. In some cases, even if the book is digitized somewhere, the particular school library or public library in question may not have access to that digital version, even if they have hundreds of physical copies in stock.
But focusing on individual access misses the larger point. What is happening here is an ecosystem transformation. The important questions are not about what an individual student has access to, but about the bigger picture: the ongoing and still-improvisational adaptation that students, families, and teachers are making together to this new situation in which scholastic interaction is suddenly bandwidth-limited in both literal and figurative senses.
When we’ve already deliberately transformed our normal personal and economic lives, when the entire educational system is radically redesigning itself as it figures out how to operate with physical distancing and all-digital resources, when people are even willing to take drastic steps like giving up freedom of physical movement, why on Earth would we assume that our previous policy of monopoly-limited access to books should — unlike virtually everything else — remain unchanged, as though nothing had happened?
With students forced to be far apart physically, we have to rethink the damage done (hitherto tolerated but lately suddenly increased) by artificially fragmenting the digital material they have access to. Before this crisis, they had the option of looking together at the same book in person, even if only one of them was the official borrower. Now that they can’t do that it becomes even more important to make shared experience possible across physical distance. If that means suspending some artificial limits on access, well, if not now, when? If this circumstance doesn’t make us reconsider the relative values of all sides of the already-shaky copyright compromise, then we would have lost sight of its alleged purpose entirely. Or, as I think more likely, we would reveal that its actual purposes have always been different from what its defenders claimed.
The Internet Archive has already started collecting the stories from teachers who are gratefully relying on the National Emergency Library. But my guess is the stories we hear so far are just the ones that are easiest to collect. The true value of the National Emergency Library can only be documented after students and teachers have had a chance to show what they can do when they finally have — at least for a time — unfettered access to a significant portion of the world’s accumulated texts.
To shut down this experiment now, when it is most needed, would be an immense failure of the imagination. It would be all the more short-sighted to fail in the name of preserving a monopoly system that is itself still experimental. After three hundred years of highly controversial results, in which pro-monopoly interests have steadily and successfully pushed for ever-longer copyright terms — including retroactive term extensions, which make no sense even given copyright’s own mythic self-explanation — and for ever-stronger powers of restriction, what could be the justification for refusing to try some experiments in the other direction for once?
Thank goodness the Internet Archive is willing to try. There will never be a more appropriate time than now. The objectors remind me of those who opposed FDR’s experimentation during the Great Depression of the 1930s. As he said then:
“The country needs and, unless I mistake its temper, the country demands bold, persistent experimentation. It is common sense to take a method and try it; if it fails, admit it frankly and try another. But above all, try something.”
So who’s objecting?
The Authors Guild, of which I am a member, has been one of the loudest objectors. I recently received an email from them asking me to sign an open letter addressed to the Internet Archive.
The open letter says exactly what you would expect it to. Institutionally, the Authors Guild has long been a copyright maximalist. Although the Guild does many fine things — advocating for freelancer benefits for authors, providing tools for authors to build their own web sites, helping authors negotiate with publishers, etc — it has consistently argued in favor of longer and tighter monopolies restricting the circulation of books, and was doing so long before the National Emergency Library came on the scene.
The argument that the National Emergency Library is hurting authors is pretty weak. The Guild’s claim might have more weight if they provided some evidence for it, which they do not. Amusingly, and no doubt unintentionally, their letter actually makes a case for the insufficiency of copyright-based royalties in sustaining authors, where it writes that during the COVID-19 crisis “…The freelance writing assignments and speaking engagements that many authors rely on to supplement their income are unavailable, and yet authors are not eligible for traditional unemployment.” (To its credit, the Guild is arguing to Congress to expand the Pandemic Unemployment Insurance for freelancers to include authors — but of course, this has nothing to do with the National Emergency Library nor with copyright law.)
The Internet Archive, meanwhile, has made some pretty powerful arguments on the other side. I can do no better than quote their own words:
…Last week we released a first look at some trends in use of the National Emergency Library. Corroborating what we are hearing from professors, our patrons are seeking older books: more than 90% of the books borrowed were published more than 10 years ago and two-thirds were published during the 20th century. Most patrons who borrow books from the National Emergency Library are reading them for less than 30 minutes, suggesting they are using the book for research as a reference check, or perhaps they are simply browsing as in a library or bookstore.
In the few weeks since the National Emergency Library was established, much has been said in the Twittersphere about the very real needs of publishers and authors. Completely missing in the debate are the voices of the 1,576,021,818 students worldwide cut off from their books—books already purchased by their schools, public libraries and community colleges. For a few weeks, until this educational and public health crisis subsides, the National Emergency Library is trying to help fill this void.
The Internet Archive is conducting an important experiment responsibly. We should let them. If a crisis like this is not the time to try something new, then we would essentially be admitting that even in principle the copyright system should never be responsive to public need in changing circumstances. If that’s the position of the Authors Guild and other objectors, then they should say so frankly. It would still be the wrong position, but at least we’d be having the right discussion.
QuestionCopyright.org had a very quiet 2019, while we took care of some internal infrastructure work. Happily, most of that work is done now. In 2020, our main project is the BookLiberator, but this time without special hardware. It will be a purely software application for smartphones, which are now capable of capturing the requisite high-resolution images and doing on-board computation: page-dewarping, for example, and even some or all of the optical-character recognition (OCR) processing.
The application will be 100% free and open source software, of course, and control will remain with the user, where it belongs.
This is just a sad update to our earlier story, but now it’s official: CloudFlare has ceased serving Sci-Hub, in accordance with the court-ordered Internet damage we wrote about earlier.
Take a moment to consider:
This is the same CloudFlare that previously agonized publicly about their decision to terminate service to The Daily Stormer, a neo-Nazi white-supremacist web site whose views are thoroughly repugant to every decision maker at CloudFlare, and probably equally repugnant to the vast majority of CloudFlare’s employees and customers. Nevertheless, the Daily Stormer decision so disturbed CloudFlare’s CEO that he immediately started laying groundwork to never have to censor again. But censoring scientific research, for copyright reasons? That apparently doesn’t fall into the same category.
Don’t blame CloudFlare, and don’t even blame the American Chemical Society. They’re not the problem here. The problem is that a limited state-granted monopoly has been expanded — at first gradually, then suddenly — by major media companies and their servants in the legislative branch to the point where censorship in its name is considered perfectly normal, so much so that using it to censor scientific papers is less worthy of hand-wringing than censoring, say, a neo-Nazi white-supremacist web site.
It was just a matter of time before some large-scale holder of copyright monopolies tried this in the U.S…
The American Chemical Society has asked a U.S. court to require Internet Service Providers (ISPs) to block access — that is, refuse to carry network traffic to and from — a site that the ACS claims is infringing its copyrights.
ISP-blocking is different, and worse, than domain seizure, and domain seizure for copyright infringement is already bad enough. ISP-blocking asks the court to step into new and dangerous territory, in which freedom of communications and the reliability of Internet infrastructure are degraded merely to provide another tool for enforcing a controversial and limited information monopoly. (It is by definition controversial — just ask yourself who are all those people whom the ISP block is intended to block? They must be people who do not agree with how copyright law restricts their access to this information.)
The ACS’s request is deeply wrong, in so many ways:
It ignores the principle and the spirit of common carrier status. ISPs are not supposed to be arbiters of acceptable comunication; they are not supposed to police content. Their job is to carry network traffic from one place to another. It does not take any great imagination to see why freedom of speech and of association depend on ISPs performing this job faithfully. This was also the point of granting them the “safe harbor” provisions in the U.S. Digital Millennium Copyright Act, and the EU’s “mere conduit” liability limitation in the Electronic Commerce Directive. These were smart boundaries to draw around ISP responsibility. The ACS’s request flies in the face of this principle.
It creates a moral hazard that attracts unscrupulous plaintiffs. If any time a complainant can get a court to agree that some site’s content is illegal, ISPs must block anyone’s access to that site, then we’ve thrown the door wide open for malicious plaintiffs seeking to use the legal system not only to harass their opponents, but to suppress even their ability to speak. It would bring SLAPP-style abuse to a whole new level.
It damages the entire Internet by blocking access indiscriminately. Suppose I happen to have an unauthorized copy of some copyrighted material, but you are authorized to have as many copies as you want. If you ask me for a copy, and I give you one, there is no (additional) crime: you are not infringing any copyrights, and I’m not infringing any more than I was already. But if I am blocked at the ISP level, then I cannot hand copies even to those who have every right to receive them. This is not merely theoretical. Suppose that the web site is operating in a country with different copyright laws from the U.S. When someone in the U.S. tries to access that site, neither the ACS nor the court nor the ISP has any clue whether that person is authorized to receive copies of the copyrighted papers they are trying to access. Maybe it’s a fully paid-up ACS member. Maybe it’s a student at a school that has signed an applicable agreement with the ACS. Maybe it’s one of the paper’s authors! You just don’t know. This is why ISP-level blocking is such a dangerous thing. It breaks Internet infrastructure for everyone equally.
It will involve collateral damage to unrelated sites. Most web sites are co-hosted on shared servers at commercial hosting providers. While law enforcement can target a site’s name, through domain seizure, to truly effectively block network access to the site’s server means also blocking access to the other, unrelated sites that just happen to use the same server (otherwise, the block is not too hard to get around). How would you feel about law enforcement sweeps that regularly capture not only the suspect, but also ten or so random bystanders who happen to be near her when she’s arrested? That’s what effective ISP blocking will do. Once again: it breaks Internet infrastructure in ways that affect everyone, not just the target.
It is incompatible with the ACS’s own mission. “To advance the broader chemistry enterprise and its practitioners for the benefit of Earth and its people.” Enough said.
As Stephen McLaughlin was quoted as saying in the Inside Higher Ed writeup: “The very idea makes my head spin. ISP blocking happens in the U.K., Germany and several other Western countries, but the U.S. simply doesn’t do that, to my knowledge.”
As some of you may have noticed, we spent a good deal of 2016 in hibernation. QCO is a volunteer-run organization, and sometimes those volunteers get busy with other stuff in their lives. Hard as it may be to believe, advocating against information monopoly does not pay the bills — we even had to pause renovation work at our global headquarters.
In 2017 we’re planning to continue our Artist-in-Residence program (which was quietly running all through 2016 and receiving donations — thank you to all who gave!) and ramp the Bookliberator project back up. BookLiberators are still in stock, and we hope to spread them far and wide.
That’s all for now. If this is year first time here, and you came here under the impression (as we all are, at first) that the copyright system is about supporting artists, please start with this.
This is not the finished film. This is about 40 minutes of in-progress work — the core musical scenes, featuring, in Nina’s words, “Goats! Egypt! Plagues! Death! Idols! Commandments! Unsubtle phallic imagery! …and MORE!” (And free matzoh.) Q&A with Nina Paley will follow the screening.
Question Copyright congratulates Creative Commons on the release of the new Creative Commons Attribution No-Value 1.0 International license, which allows covered works to be distributed freely with proper attribution, as long as no recipient derives any value whatsoever from them, including but not limited to personal pleasure, commercial gain, or artistic benefit.
CC-BY-NV allows derivative works so long as the derivatives are also without value to anyone, but it can be explicitly combined with the No-Derivatives (NC) clause for good measure. According to CC General Counsel Diane Peters, the new license cannot be combined with Non-Commercial (NC) clause, because lack of commercial potential is already implicit in the NV clause, but she added that “it can, however, be combined with the ShareAlike (SA) clause, not that it would do any good.”
“The release of CC-BY-NV 1.0 International is the result of lawyers and other experts around the world coming together to ensure that artists who simply want to ensure that no one can experience enjoyment of their works have a place in the Creative Commons constellation too,” said Creative Commons Executive Director Ryan Merkley. “I’m enormously grateful to the entire CC team and to all the volunteers who worked so hard to get this out by the April 1st deadline.” Diane Peters noted “We already have a number of artists inquiring about applying the new license to their works.”
