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Below are the 20 most recent journal entries recorded in commontext's LiveJournal:

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Friday, May 2nd, 2003
12:37 pm
Introduction to Open Source Communities
I was just introduced to Eugene Eric Kim's An Introduction to Open Source Communities, via Open-Education.

Here is a very enlightening introduction to the way open source communities work. The report is divided in to two sections. The first section offers some general insight into the way open source communities are formed. According to two major surveys, the primary motivation for joining an open source project was to "increase personal knowledge base" (4).

Another important finding of this report is that the majority of projects have a single leader who is responsible for most development activities (5).

The second section offers case studies of two projects: TouchGraph and SquirrelMail. TouchGraph is a smaller project led by a single person who controls the CVS (Concurrent Versions System)--that is, the system that controls and tracks the different versions of projects in development (7). Communication is handled in forums and via private e-mail. It seems that most development conversations occur over e-mail, while forums are generally used for debugging (8).

SquirrelMail's development community is substantially larger, and so the work is more distributed. Project leads come from both Europe and the U.S., and sometimes the cultural differences lead to communication problems (10).

Perhaps the most important insight in this document comes in the analysis of community development--Kim suggests that in every case, too much pre-design of a community leads to problems, because it is difficult to predict how a community will develop (13). Even more important is the active involvement of a leader. Kim points to the reflection of SquirrelMail founder Luke Ehresman as an example: Ehresman found that activity in the community responded directly to his personal involvement and enthusiasm--the more enthusiastic and involved he was, the more development activity occurred in the next two weeks (13).

[I've been vocal in the past about the difference between an open-source software community and communities for developing publicly licensed texts. I'm fairly certain that the motivations of contributors is going to be different when developing texts as opposed to software. However, I think the comments in Kim's article about the function of open-source community leaders are especially important, and deserve a great deal of consideration]
Tuesday, April 29th, 2003
2:13 pm
Notes on Lunsford and Ede's "Collaborative Authorship and the Teaching of Writing"
Lunsford, Andrea A. and Lisa Ede. "Collaborative Authorship and the Teaching of Writing" The Construction of Authorship: Textual Appropriation in Law and Literature. Ed. Martha Woodmansee and Peter Jaszi. Durham: Duke UP (1994) 417-38.

Again, just a brief summary of this one. Here Lunsford and Ede reiterate some of their well-known views on collaboration, the most notable one being that "much or most of the writing produced in professional settings in America is done collaboratively, and that, in fact, much of what we call 'creative' writing is collaborative as well, though it almost always flies under the banner of single authorship" (418).

They argue that despite many recent "innovations" in writing instruction, moving from a teacher-centered to a student-centered classroom, the primary emphasis is still on individual student writers (425).

They want to redirect writers to a much more holistically collaborative process, where "collaboration" means much more than just "peer review" or dividing a work into separately authored parts. [Interestingly, I don't see any discussion here of Usenet, (and obviously no discussion of collaborative communities such as Slashdot or Kuro5hin, or even blogs, none of which existed yet--I think all of these technologies could eventually become part of the mainstream writing curriculum.

More to the point, Lunsford and Ede don't discuss a collaborative vision of the creation of teaching texts. (and of course, most of Lunsford's books are singled-authored. hmmmmmm….) I think teaching is an ideal application for some of these ideas, yet teaching has been an occupation that has steadfastly resisted these notions. A single teacher in a single classroom is the norm from K-Ph.D. Collaboration in textbook authoring typically means divvying up chapters. Of course, organizations like commontext and open-education are trying to change those notions, but I wonder what challenges we'll face. I think if we start with the idea of a text with a discussion board, we can begin to get partway there.

In the case of Commontext, what I'd really like to do is to blur the distinction between peer review and authorship. I think we need to frame peer review as such, but I think we also need to encourage reviewers to contribute to the text. Perhaps the key is in some sort of framing statement for reviewers, making it clear to them that they are part of the authoring process. *idea* for a discussion thread on kairosnews!]

[I clearly need to read Foucault's "What is an Author," which is cited nearly everywhere in this book]
2:11 pm
Notes on Thomas Streeter's "Broadcast Copyright and the Bureaucratization of Property."
Streeter, Thomas. "Broadcast Copyright and the Bureaucratization of Property." The Construction of Authorship: Textual Appropriation in Law and Literature. Ed. Martha Woodmansee and Peter Jaszi. Durham: Duke UP (1994) 303-326.

I'll see if I can resist offering such detailed notes on this article, which explores the idea that broadcast television has "bureaucratized" the notion of authorship by transforming creative works into vehicles to sell advertising. Corporations become "stand-ins for the individual author" (307). Streeter sees this phenomenon as "symptomatic of a general trend in twentieth century American laws and institutions identified by a variety of historians and legal scholars: a shift from classical, formal liberalism towards a revisionist, corporate liberalism" (308).

An interesting example of this phenomenon is the "blanket license," whereby individuals are not compensated for their work, but instead a kind of subscription charge is levied, for example, for public performances. This was done in the early 20th Century for public performances in bars, for example. [Later the same idea was attempted (massively unsuccesfully) for Digital Audio Tape--a portion of the price of the tape was supposed to go to musicians, but the medium never caught on]

Streeter also gives a fascinating recounting of the battle for radio broadcast rights in the early 1940s, where two rival licensing organizations fought for control of the airwaves--Streeter points out that this matter was more likc a scuffle between two bureaucracies than free-market competition (316). [I wonder if the battle between open-source/publicly licensed works and copyrighted/DRM works will play out in a similar fashion]

[I think the Internet offers a new dimension to this problem--this blanket licensing worked fairly well for broadcasting, because at least the area of distribution could be identified. With the Internet, however, the model will likely change, both because the transmitter of information can't be sure where it's going, and because new means are being developed to identify individual users of information.]
2:09 pm
Notes on Margreta de Grazia's "Sanctioning Voice"
de Grazia, Margreta. "Sanctioning Voice: Quotation Marks, the Abolition of Torture, and the Fifth Amendmnt." The Construction of Authorship: Textual Appropriation in Law and Literature. Ed. Martha Woodmansee and Peter Jaszi. Durham: Duke UP (1994) 281-302.

Yet another insight from this 1994 book.

This article takes a look at the 1991 Masson v. New Yorker case, in which an author is sued for apparently misquoting Jeffrey Masson, a psychologist who was in charge of the Sigmund Freud Archives. Since earlier court cases had said that publishers can't be held liable for minor grammatical or factual corrections in quotes, this case focused on whether the changes made in the New Yorker article went beyond that standard (282). The lower court had previously ruled that it was acceptable for the New Yorker to phrase statements as direct quotes when, in fact, Masson had never said those things, because it was "a rational interpretation of Masson's comments" (283).

The Supreme Court reversed this decision, indicating that it was critical that quotations actually be the spoken words of the person being quoted, otherwise journalists would have "the freedom to place statements in their subjects' mouths without fear of liability" (284-85). The court went on to argue that it was particularly important to regulate such direct quotations because a "self-condemnatory quotation may carry more force than criticism by another" (285).

De Grazia notes that "what is remarkable about the legal discussion surrounding the issue of libel in Masson v. New Yorker is how close quotation marks came to being rendered obsolete (or at least insignificant) … before being fully reinstated by the Supreme court's reversal" (285). De Grazia points out that the court reacted to these earlier decisions with especial vehemence, and then makes a fascinating analogy to the forced confessions of the Inquisition, connecting it finally to the fifth-amendment right against self-incrimination (286-87). Now, it appears, we are being given the same rights in print.

De Grazia points out that quotation marks themselves were only becoming standardized at around the end of the 18th century--about the same time as the fifth amendment was written (288). Quotation marks had originated as marginal annotations indicating a particularly interesting passage in a text--something it might be useful for readers to borrow in their own work (288). She sums up the use of these quotes as follows: "In brief, rather than cordoning off a passage as property of another, quotation marks flagged the passage as property belonging to all--'common places' to be freely appropriated (and not necessarily verbatim and with correct authorical ascription). Not until after the seventeenth century did quotation marks serve to enclose an utterance as the exclusive material of another which could be borrowed only if accurately reproduced and ascribed" (289). [So the use of quotation marks has moved to become the opposite of their original intention, which was to mark of sections of works that could be used by everyone, as a part of common wisdom. Now these same words are used to demarcate a sacrosanct, inviolate, private space. Fascinating indeed.]

De Grazia extends this concept of reversal to the relationship between the individual and the state. In a monarchy or dictatorship, the state imposes its will on an individual; the strongest expression of this power relationship is the forced confession through torture. The state literally has the authority to put words in a person's mouth (293).

De Grazia explains the remarkable power the fifth amendment gave to individuals, because this right against self-incrimination trumps the court's right to subpoena testimony--indeed it trumps any individual or government power to elicit speech (298).

De Grazia then extends this argument to the province of quotations, suggesting that a misquote might not only be an act of libel, but also a copyright violation (299). Taking the next logical leap, she points out that quotation marks, as print symbols demarking a particular, preferenced, proprietary discourse, are unique. There is no such equivalent in the world of painting, or photography, or film. How, then, are works such as these to be demarcated? As de Grazia points out, surrounded by new, visual media, "the strict upholding of quotation marks might appear quaint and outmoded, an anxious gesture against an onrushing future" (302).

[This article only hints at the complexities of attribution in the world of new media. In blogging, for example, some conventions are being developed, whereby quotes are indented, and links are provided to the full version of an article, for those who are interested. But in "photoshopping", the original photograph is often not provided. The absurd juxtapositions in the photos indicate to observers that they are faked, but no credit is given to the original photographer. As larger works are developed under this model such as community weblogs, the distinctions become even fuzzier.

Commontext takes this process one step further, attempting to develop educational materials under the open source model. By "open-sourcing" a text, we are returning to the original use of quotation marks--designating a work that "belongs" to no one, a "common place" that anyone can freely use. The public license serves the function of these quotation marks. The only unfortunate feature of the licens is its clumsiness--it doesn't have the simplicity of a set of quotation marks, or even the universal "copyright" symbol. Perhaps what is necessary is a new symbol indicating the public licensing standard. The problem here, of course, is the sheer number of different open source licenses.]
Saturday, April 26th, 2003
5:19 pm
Notes from Alfred Yen's "The Interdisciplinary Future of Copyright Theory"
Yen, Alfred C. "The Interdisciplinary Future of Copyright Theory." The Construction of Authorship: Textual Appropriation in Law and Literature. Ed. Martha Woodmansee and Peter Jaszi. Durham: Duke UP (1994) 159-73.

I'm continuing to find valuable insights in this 1994 book. What a collection!

In this article, Alfred Yen discusses the shift in scope of copyright law over the past 150 years, and the impact that will have both on scholarship and law. He begins by expressing the nature of copyright as a balance between authors' rights and the rights of the public to have a large body of knowledge as a base for future works (159). He then points out that in cases such as Sony v. Universal, the Supreme court seems to be privileging only the author's side of the equation (160).

Elaborating on this theme, Yen proposes two models of copyright: one depicting it as a carefully constructed balance where the goal is to create as many new works as possible, so the author's compensation must be weighed against public benefit of having works to draw from; the other depicting it as an absolute property right of the author to "the fruits of her labor" (161).

Yen argues that the primary basis for copyright theory in America has always been economics (162). [contrast this to Jessica Litman's more complex version of this idea in Chapter 5 of Digital Copyright] Proponents of this view point both to the language of the constitution and to the idea that the "fruits of labor" or natural law version would support perpetual copyright and preclude any fair use (163).

Yen then analyzes early copyright law and finds both natural law and economic justification for copyright (165). He then argues that using a purely economic argument with regards to copyright is unreasonable because copyright law has never been purely framed in this way (166).

Next, Yen points out that a natural law argument can be made suggesting that perpetual copyright is not a logical conclusion, and that fair use is not logically precluded by this model: since all authors must "borrow" some of their work, either from other works, or by observing society at large, then they can't claim full title to a new work they create either (166-67).

Yen makes a logical argument for the public domain by suggesting that there would be a tremendous logistical problem in compensating previous authors for "borrowed" works, and that these authors would unjustly receive "windfalls" for works they have already created. Therefore, some works should enter the public domain, in fairness to current and past authors (168).

Yen argues that economic arguments for copyright break down because ultimately they rely on determining the price for the copyrighted work in question, which is something judges can't do (170). [I'm not sure I quite understand the economic argument he's making here--I think it boils down to the idea that individuals will pay different prices for property, so it's impossible for government to set "ideal" copyright laws based on a purely economic argument.]

Yen concludes that both natural law and economic justification must be used to determine copyright policy. Interestingly, he makes a prescient observation that the result of this process: "Perhaps too many cooks will ultimately spoil copyright's broth." [I think Litman has done an excellent job in pointing out that this has already occurred--though perhaps the metaphor should be further extended to point out just how many cooks have been kept out of the kitchen!]
Thursday, April 17th, 2003
11:31 am
Notes from Martha Woodmansee's "On the Author Effect."
Here are some notes from a work by Martha Woodmansee, from a great volume The Construction of Authorship. I'll probably be adding notes from several articles in this volume over the next couple of weeks.

Martha Woodmansee. "On the Author Effect: Recovering Collectivity." The Construction of Authorship: Textual Appropriation in Law and Literature. Ed. Martha Woodmansee and Peter Jaszi. Durham: Duke UP (1994) 15-28.

Woodmansee notes that individual authorship of texts may be a relatively recent and potentially quite short-lived phenomenon, indicating that as recently as the 1750s, a book was seen as a product of a number of "craftsmen," only one of whom was the "author" (15).

She sees the idea of the writer as a "special participant" in the text-making process as a romantic notion, most famously elucidated by Wordsworth (16).

The notion of an individual author, Woodmansee argues, is even less pronounced as we go back farther in history. Consider this quote from St. Bonaventure:

"A man might write the works of others, adding and changing nothing, in which case he is simply called a 'scribe' (scriptor). Another writes the work of others with additions which are not his own; and he is called a 'compiler' (compilator). Another writes both others' work and his own, but with others' work in principal place, adding his own for purposes of explanation; and he is called a 'commentator' (commentator). . . . Another writes both his own work and others' but with his own work in principal place adding others' for purposes of confirmation; and such a man should be caled an 'author' (auctor)" (Qtd in Woodmansee, 17).

Woodmansee goes on to note that "While Bonaventura's auctor seems to be making a substantial (original) contribution of his own, he does so as part of an enterprise conceived collaboratively" (17). [I should note that this notion of "collaboration" was not well received in my presentation at 4Cs: several audience members felt that "collaboration" could only occur with the active participation of a number of "authors"]

Woodmansee offers an extensive example of Samuel Johnson as someone who exemplifies this collaborative spirit preceding the romantic period. [I'm not sure I buy her logic here. Johnson was selling his work, acting essentially as a freelance writer. I don't think this exactly qualifies as "collaborative authorship." I do wonder what Johnson's position on copyright would be. I expect he'd be an avid supporter.]

Woodmansee then considers the work of Lunsford and Ede, who have argued that the majority of writing today is collaborative--the major exception being the arts and humanities. They suggest that teaching writing as an individual act does most students a disservice (24-25).

Woodsmansee also offers an early analysis of the impact of USENET on writing, citing Jay David Bolter's work on the collaborative nature of newsgroups (25-26).

She finally suggests that modern conceptions of authorship form the basis for modern copyright law, but that the fact that these notions themselves are potentially so fleeting means that copyright law itself may not be able to stand up to the new definitions of authorship (27-28).

[I think it would be interesting to look at the DMCA with respect to these notions. I think we would probably find that many of her concerns have been addressed in the new law, which I think allows corporate/group authors many more rights, extending copyright into this new domain. But of course in the long run, this may cause more problems than it solves, since these new materials will not be available to be integrated into other works, causing copyright law to choke on its own phlegm.]
10:10 am
Litman, Chapter 13
Litman ends the book not with a bang, but a quiet admission that she sees no way for the ultimate vision of copyright as expressed in Chapter 12 to actually be enacted. She does offer a bit of hope, however--that public disenchantment with copyright law will lead to millions of Napster-like acts of civil disobedience, and that these acts may finally force lawmakers realize that the current copyright law will simply not do in the age of the Internet, and that this realization, finally, may force real change in copyright law.

[I'm surprised that Litman doesn't mention public licensing here. Obviously I'm a little biased here, but it seems to me that "copyleft"/"share alike" licenses can also have a significant impact on the availability of works. Perhaps at some point the open source movement will also gain enough critical momentum to impact copyright legislation. Once traditional rightsholders begin to see the power in the open-source movement (and I think some of this has already begun--for example Microsoft releasing the code for Windows CE), they may realize that it's actually in their interest to make laws less restrictive, so that people don't reject traditionally copyrighted works in favor of open source.]
10:09 am
Litman, Chapter 12
Here's the crux of Litman's argument: this chapter is where she lays out her vision for a new copyright law. Litman forcefully argues that making a copy is should no longer be the relevant action that constitutes infringement of a content author's rights. She reasons that copyright was defined when copying was an inherently difficult thing to do. By contrast, with the Internet, a "copy" is made in a computer's memory each time a document is read. Surely the framers of the constitution didn't believe that the "copyright clause" should allow rightsholders to control each individual reading of their work.

Litman suggests that, in this light, a new formulation of copyright law should be made, one which draws the line not at making individual copies, but at commercial exploitation of a work. When an action is taken that hinders the rightsholder's ability to profit from the work, than that shall be deemed a violation. In this way, things like peer to peer sharing, and personal copies of DVDs and software would be legal, but large-scale copying and performing of works for a fee would be protected.

[I should point out that Litman glosses over some real snags here. I think that what she's suggesting might make libraries as we know them illegal--perhaps that's her intent, but I think the result of that could be to make certain types of works much more difficult to access, and I'm not sure if that's a compromise we should be ready to make.]

Litman also argues forcefully for explicit legal protection for fair use and the public domain--rather than defining these rights arbitrarily by virtue of the cracks present in copyright law, these important rights should be explicitely defined. [this sounds great to me--regardless of copyright law is or is not defined]

Finally, Litman suggests that adaptations of works should be allowed under copyright law, so long as a citation or link to the original source is provided. [This is an interesting suggestion, but I wonder how that might be defined. Would a rap that "sampled" a large chunk from another song count as an adaptation? What about a student essay that "cuts and pastes" together its texts from a variety of online sources? I think it would be incredibly difficult to define what would be permitted adaptations, and what would be prohibited.]
10:08 am
Litman, Chapter 11
This short chapter discusses the content creation industry's approach to digital technologies in the wake of the DMCA. Litman points out that most efforts by the content industry to sell digital content have failed because of the clumsiness or hypocrisy of those efforts--for instance, the RIAA claiming that without the DMCA, we wouldn't have new music because musicians wouldn't be fairly compensated. This rings hollow when most consumers are aware that many musicians--even very famous ones--are routinely screwed by their recording companies.

Litman also criticizes the RIAA's suggestion that copy-protected digital copies of works should be sold for the same price as "an unencrypted, loanable, copyable, resalable CD" 168. Why would anyone pay the same price for an inferior product?

The crux of Litman's argument is that the Internet makes the production and distribution of content a much less expensive proposition, so the burden here really should be on the content creation industry to justify its existence, rather than branding others who take advantage of the Internet as "pirates" and "criminals."
Saturday, April 5th, 2003
2:18 pm
Litman, Chapter 10
In Chapter 10 of _Digital Copyright_, Litman goes over the major legal actions taken by copyright holders in the wake of the DMCA. Many of these are quite familiar--the MP3.com case, the Napster case, and the DeCSS case. Litman points out that these aren't simply cases of the recording and film industry going after "pirates," because in each case the defenders had quite sound defenses: MP3.com checked to ensure that users of MyMP3.com actually owned copies of CDs it broadcast to them, Napster didn't actually participate in copying files, and DeCSS simply allowed legitimate owners of DVDs to view them on their computers. But of course, in all of these cases, the courts ruled in favor of copyright holders, with the result being an effective expansion of the scope of copyright laws.

[I don't have much to add to this. The chapter is worthwhile if you're unfamiliar with these cases]
2:18 pm
Litman, Chapter 9
Chapter 9 of _Digital Copyright_ describes the process of enacting the Digital Millennium Copyright Act_ in, as Litman puts it, "mind-numbing detail" (144). Litman notes that noncommercial interests have traditionally had no input in negotiating copyright law, and the DMCA was not particularly different. The main difference was that those opposed to the proposed law, expressed in the Lehman Working Group's White Paper, were familiar with the Internet, and could use the Internet to rally support. To make a long story short, the resistance to passing the law was ineffective, and the DMCA as it was eventually passed was in many ways stronger than the law originally proposed in the White Paper.

I won't go into "mind-numbing detail" in my summary of Litman's chapter, but I will point out an interesting analysis of the argument surrounding perhaps the most controversial aspect of the DMCA, the anticircumvention provision. DMCA opponents argued that outlawing circumvention of copy protection measures would effectively end "fair use." If you can't access a copyrighted work, how could you make "fair use" copies of it? The DMCA supporters argued that the provision was simply like "lock and key" security in the physical world: if I own a painting, I can lock it in my house, and breaking into my house to make a copy of the painting, even if the painting is in the public domain, is illegal. Litman argues that this metaphor is not adequate--what the DMCA really allows is for people to "lock up" materials over which they have no ownership: it would be like me placing a "vicious attack dog" in the Louvre to protec the Mona Lisa. In this case, "the guards would simply shoot it," but the DMCA would make such an action on the part of the guards illegal. [interesting points, but I'm not sure either metaphor is actually appropriate--in the DMCA case we're not talking about a physical thing, but a digital representation. I think this changes everything]

Here's Litman's take-home message on the DMCA:

"There is no overarching vision of the public interest animating the Digital Millennium Copyright Act. None…. The DMCA is long, internally inconsistent, difficult even for copyright experts to parse and harder still to explain. Most importantly, it seeks for the first time to impose liability on ordinary citizens for violation of provisions that they have no reason to suspect are part of the law, and to make noncommercial and noninfringing behavior illegal on the theory that it will help to prevent piracy" (144-45).

'Nuff said.
2:15 pm
Back on the planet
I've been thrown for a loop by the double-punch of both the 4Cs conference and the start of war in Iraq. I'm going to strive for some return to regular postings in the next few weeks. When the summer hits, I should be ready to move Commontext into high gear. In the meantime, I'll post the latest two chapter summaries from _Digital Copyright_.
Friday, March 14th, 2003
9:57 am
Building a network
Martin Terre Blanche has given Commontext a plug on his blog. Thanks, Martin! Wouldn't it be interesting if the first Commontext publication came from South Africa?

Martin is concerned that the peer review process could be a bottleneck in Commontext's publication process. I agree that this is an important concern, and I've discussed the pros and cons of peer review in many places, particularly this Kairosnews thread (I'm "wordmunger").

In the end, I think peer review will help Commontext build an ethos of quality--I understand that it's not a perfect system, but I do think it's the best one we've got.
Thursday, February 27th, 2003
10:30 am
Litman's _Digital Copyright_, Chapter 8
Chapter 8 of _Digital Copyright_ discusses the impact of moving toward ever-more-complicated copyright legislation in the digital age. The problem, of course, is that the DMCA defines and enforces copyright in ways that directly impact individuals. Now, if individuals don't understand the law--and more importantly, if they don't believe in the law, then how can they be expected to follow the law?

The Lehman Working Group's answer was almost comical: They should educate consumers to "just say yes to licensing" (111). That's right, let's brainwash the public to believe that copyright restrictions are good for them! As Litman points out, this didn't work for the 55-MPH speed limit, it's not working with sodomy laws, and it isn't going to work for copyright either. People don't believe in these laws. They don't believe that it is illegal for them to view a Web page or trade MP3s. Rightsholders have been trying to "educate" the public since the 1909 copyright act. It didn't work then, and it's not going to work now.

A better approach, Litman argues, would be to find out just what the public believes a reasonable copyright statute to be, and rewrite the law to match that image. She points to surveys that show most people see a significant difference between commercial and personal use, so that would be as good a place as any to start (117).
9:27 am
Litman's _Digital Copyright_, Chapter 7
Litman points out that the proponents of the "information superhighway" claimed that stricter copyright legislation would be the only means to compel talented people to put their works on the Internet. However, these same people were aparently unaware of the vast array of information already available online, even before the DMCA was passed in 1996 (102). Litman's prime examples are the usenet--offering good information on everything from UNIX to child care, and Gopher, where she found her favorite copyright FAQ. Later developments preceding 1996 include IMDB, Napster, and Yahoo! (104).

In response to the argument that quality of online information would decrease if copyright restrictions were relaxed, Litman points out that both recipes and fashion are not subject to copyright, yet we continue to see innovative chefs and clothing designers (105). [I might respond that these are cases where "packaging"--the preparation of the food and the manufacturing of the clothing--matter more than in other industries, such as publishing and news gathering. But whether this difference is crippling for those industries remains to be seen]

The crux of Litman's argument is that copyright is actually less of an incentive to the innovators themselves--authors, artists, programmers, filmmakers--than it is to publishers and distributors. Once publication and distribution becomes trivially cheap, as it has on the Internet, then copyright itself begins to lose importance. Copyright doesn't encourage creativity--people will be creative on their own. Copyright simply provides a way for the rest of us to benefit from the creativity of others. Now that we have the Internet, it would seem to follow, we don't need copyright.

[Litman hasn't convinced me yet. Copyright might not really be the motivation for a budding novelist (who may, after all, be seeking fame more than anything else--what better way to fame than to have your work copied all over the Internet?), but what about the person who gathers the daily news? I think the news industry might be affected more radically than any other by a complete revocation of copyright. We would undoubtedly see more peer-to-peer newsgathering, but what about investigative reporting--who would have the budget to finance a long-term investigation into corporate malfeasance, for example?]
7:04 am
Litman's _Digital Copyright_, Chapter 6
In Chapter 6, Litman begins to discuss the genesis of the Digital Millennium Copyright Act (DMCA). The act was conceived during the 1992 presidential election, when the notion of "Information Superhighway" was first popularized (89).

Litman points out that this view of the Internet supposed it to be a giant cable TV network, with a few "interactive" home shopping channels. Under this model, content creation and distribution over the Internet became a fundamental component of the network's creation. Clinton set up an "Information Infrastructure Task Force" to supervise construction of the "Superhighway," and this group delegated content issues to the "Information Policy Committee," headed by Patent Commissioner Bruce Lehman (90).

Lehman built his committee out of the usual suspects: current copyright holders, and solicited little advice from the new players in the Internet--particularly hardware and software manufacturers. The crux of their strategy was to insist that current copyright law already applied to the Internet, because every time a work is loaded into a computer's RAM, that is "making a copy" (91). As Lehman wrote a green paper and later a white paper describing his committee's conclusions, Litman claims that the committee received and ignored much negative feedback, presenting its conclusions as a carefully negotiated compromise. It wasn't (93).

Litman points out that "[t]he Lehman Working Group's White Paper suggested that only modest improvements would be necessary to secure to copyright owners the expansive rights Congress had granted them twenty years earlier" (95). The two critical amendments were the assertion that unauthorized transmission of works over the Internet constituted copyright violations, and that any circumvention of electronic copy protection should itself constitute a copyright violation--even if the subsequent use of copyrighted work is permitted under copyright law (96).
Tuesday, February 25th, 2003
3:56 pm
Litman's _Digital Copyright_, Chapter 5
In chapter 5 of Digital Copyright, Jessica Litman builds a convincing case for the claim that the battle over copyright law for the past century has been dominated by the side that could establish the most effective metaphor for copyright. She points out that copyright law is so complex that "[m]ost people's idea of copyright law takes the form of a collection of principles and norms" (77). These principles are typically expressed in the form of metaphor.

The dominant metaphor at the turn of the 20th century, Litman argues, was one of "quid pro quo": the public gave the authors of new works some rights in exchange for the understanding that many rights (and, at the end of the copyright term, all of them) would remain in the hands of the public (78).

But by 1976, when the law was revised to nearly its present form, the metaphor had changed to an economic one:
"To justify copyright limitations, like fair use, under this model, you need to argue that authors and publishers need them in order to create new works of authorship, rather than, say, because that's part of the public's share of the copyright bargain. The model is not rooted in compensation, and so it doesn't ask how broad a copyright would be appropriate or fair; instead it inquires whether broader, longer, or stronger copyright protection would be likely to lead to the production of more works of authorship.
The weakness in this model is that more and stronger and longer copyright protection will always, at the margin, cause more authors to create more works--that's how this sort of linear model works" (80--emphasis mine).

Instead of principles of copyright being determined by the greater public good, they are determined through analogy to a metaphor--but it is a flawed metaphor which neglects the most important part of the equation: the people, the consumers of copyrighted works.

[Even more critically, I would say, it ignores a fundamental part of the dynamic involved in creating new works: that all new works are based on the works of others. The economic metaphor would lead to perpetual copyright, which would in the end stifle any new work. It's a giant Ponzi scheme in which the only winners are the current copyright holders.]

The next area into which copyright is beginning to extend its reach is in enforcement. Once the potential of digital copying became clear, panicked copyright holders lobbied Congress to allow them to use electronic means to enforce copyrights. The problem with this type of control--such as electronic copy protection--is that it protects both the portions of a work that are protected by pre-digital copyright legislation, as well as portions that may not be protected (e.g. materials that are in the public domain, or parts of a work covered by the fair use privilege) (83).

Litman also points out that copyright holders have also taken pains to redefine the metaphors of sharing. Legal, fair-use copying, such as making a tape of a CD for a friend, has been relabeled as "piracy" by the recording industry, even though it is expressly permitted by the Audio Home Recording Act (85). Litman argues that even massive peer-to-peer filesharing is technically the same thing as making a tape for a friend, and so is not piracy, though it may have the same effect as piracy from the perspective of the copyright holder. [Litman is unclear on whether or not the law allows such sharing--I should think that it does not, but perhaps she'll cover this issue in future chapters.]

[Litman has made a convincing case that the fight over copyright is dominated by the side that can control the metaphor that defines the lay public's view of the law. Because Congress itself is not made of copyright lawyers, even Congress is a group of laypeople with respect to copyright law, so it is likely to act based on the prevailing metaphor as well. Unfortunately, Litman doesn't offer us a counter-metaphor here--though implicitly I think she suggests that the quid pro quo metaphor at the turn of the 20th century would be an acceptable one. Under that metaphor, however, I think peer-to-peer sharing would have to be dealt with as well, for how would authors be compensated for their compositions if they could be freely shared over the Internet? Charlie Lowe and I had a lengthy debate on this issue over at Kairosnews last week.]
1:23 pm
Litman, _Digital Copyright_, Chapter 4
Litman certainly seems to be circling around the same theme in this book. Chapter 4 is entitled "A Thought Experiment," and it asks readers to imagine being the attorney for the "public," advising them on whether the current copyright law makes sense. The answer, of course, is no--mainly because the law is too complicated for members of the general public (and even members of Congress) to understand.

The problem is, Congress would never pass a simpler law because all of the special interests involved would lobby for exceptions, and you'd end up again with the same mess we're in now. Even the Copyright Office can't offer Congress unbiased advice about copyright because it too must gain the support of intellectual property lobbyists in order to ensure funding for itself (74).

[An aside: I highly recommend Litman's footnotes. In this chapter, I learned that it's technically illegal to play recorded music loud enough for your neighbor to hear (this is a "public performance"), to play a song by ear (this is "creating a derivative work"), or even to imagine a different lead character in a movie (again, technically this creates a "derivative work"). There's also a fascinating analysis of just how complicated copyright law has become: even copyright attorneys dispute whether it's legally possible to donate a newsgroup posting to the public domain.]
Wednesday, February 19th, 2003
12:46 pm
Litman, Chapter 3
Chapter 3 of Digital Copyright is sort of like the extended dance remix of Chapter 2. Litman expands on the themes she brought up in Chapter 2 by offering a detailed history of copyright law in the 20th century.

The 1909 copyright act was formed as a compromise between interested parties--those established industries such as book publishers, music publishers, and theatres. Notably absent were representatives of the early U.S. film industry. In 1912, film lobbyists managed to get into the act and get some limited protections for their work.

Soon, lobbyists began to realize that no significant reforms could be made without the agreement of industry first. They wouldn't be able to agree for another 64 years. 1976 was the year the next major copyright legislation was enacted, largely based in the copyright conferences held in the late 1950s and early 1960s, and this law forms the basis of copyright law to this day. Litman sums up the 1976 law as follows: "The bill that emerged from the conferences enlarged the copyright pie and divided its pieces among conference participants so that no leftovers remained" (53).

These allotments were agreed upon not in the form of a general copyright law with broad provisions, but rather general provisions with lots of tiny exceptions. As Litman points out, "Most of the 1976 acts limitations on copyright owners' expansive rights were cast in narrow, specific language. Yet, in order to answer the questions that the future will present, a statute needs flexible language embodying general principles" (57).

This process of industry negotiation followed by Congressional rubberstamping has gone on now for nearly a century. Litman comments: "[T]he process is securely entrenched. The inquiry relevant to copyright legislation long ago ceased to be 'is this a good bill?' Rather, the inquiry has been, and continues to be 'is this a bill that current stakeholders agree on?' The two questions are not the same" (63).

Thursday, February 6th, 2003
1:58 pm
_Digital Copyright_ notes, continued
Chapter 2: The art of making copyright laws

New technologies have necessitated constant revision of copyright laws. (22)

The process by which laws have been updated for the past 100 years is the consensus of copyright lawyers, who then present the revised law to congress for rubberstamping. (23)

This consensus can only occur by giving each interested party (who can afford copyright lawyers) more breaks. (23)

This process has resulted in a copyright system that is "kind to the entrenched status quo and hostile to new upstart industries." Enter the Internet. (25)

Because new copyright law is typically built only on the foundation of old laws, copyright lawyers argued--successfully--that copyright laws already covered the Internet: because every time a copyrighted work is saved electronically--whether in RAM or on a hard drive--a "copy" is made. The result is, technically, any time you view an image from the Internet, you are violating copyright, because you've made a "copy" for your computer. It doesn't even matter if you own a book with the exact same image--you've made another copy, so you should pay again. (27)

On this basis, the Digital Millennium Copyright Act (DMCA) was passed, effectively authorizing pay-per-view on everything. (27)

Litman argues that the law goes farther than that--she sees this legislation as regulating Internet traffic at the "atomic" level: "by using so basic an atomic unit, we're proposing to put copyright rules in place as the most basic 'rules of the game' in cyberspace. (28)

One problem with this system is that the copyright laws now affect everyone, not just copyright lawyers--this is a fundamental flaw in the DMCA. (29)

The remaining question, then, is whether the DMCA will be able to stand up to the new public scrutiny it will soon find itself under. I suppose that's a question Litman will be answering for us in the upcoming chapters.
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