Frame breakers win battles, not wars

“If copyright law, at its core, regulates something called ‘copies,’ then in the analog world… many uses of culture were copyright-free,” he explained. “They didn’t trigger copyright law, because no copy was made. But in the digital world, very few uses are copyright-free because in the digital world … all uses produce a copy.”

The paradigm for copyright law enforcement emerged out of this “analog world” as a way of ensuring authors were remunerated for their contributions to culture, thereby creating an incentive to make further contributions and drive the progress on human art and discovery forward, he said.

Times have since changed, said Lessig, but the letter of the law hasn’t.

Copyright law was originally intended to protect those who create for profit (Lessig used the example of recording artist Britney Spears). But academics also create original works, he said, and they are — or should be — motivated by a desire to advance human knowledge, not line their pockets. Therefore, sealing their work behind copyright barriers does no social good.

News: A Call for Copyright Rebellion – Inside Higher Ed

I was thinking about the Luddites, wondering if they wouldn’t be stringent copyright protectionists these days. E.P. Thompson seems to suggest this, in his reading of their history. From Wikipedia:

In his work on English history, The Making of the English Working Class, E. P. Thompson presented an alternative view of Luddite history. He argues that Luddites were not opposed to new technology in itself, but rather to the abolition of set prices and therefore also to the introduction of the free market.

Thompson argues that it was the newly-introduced economic system that the Luddites were protesting. Thompson cites the many historical accounts of Luddite raids on workshops where some frames were smashed whilst others (whose owners were obeying the old economic practice and not trying to cut prices) were left untouched. This would clearly distinguish the Luddites from someone who was today called a luddite; whereas today a luddite would reject new technology because it is new, the Luddites were acting from a sense of self-preservation rather than merely fear of change.

A belated (but new to me) thought on open access from Matrullo has relevance as well. I wish I could forget about the whole kerfuffle, but I can’t.

About Hummels


At this point, some readers may say, huh? How can a statute of limitations for copyright infringement bar a state law claim for an accounting of profits between co-authors brought under diversity jurisdiction? The answer according to the majority is that the accounting cause of action was predicated on there being co-authorship status; if there can be no such co-authorship claim because the statute of limitations bars even a facial assertion of co-authorship status, there can be no possible accounting cause of action. The majority found the copyright limitations indeed barred the co-authorship claim, and hence affirmed dismissal of the claim.

You know you have crossed a threshold when you start finding copyright law funny. I couldn’t read Patry’s post about the I.P. issues surrounding Hummels without thinking of About Schmidt. There’s also a funny (to me at least) bit about Hummel photographer knock-offs.

Spam Gate


One thing that always bothers me about the weekend is being forced to watch Fox to get local coverage. However, yesterday evening there was an interesting story about a local “meat sculptor” who entertains herself during the cold weather by making spam candles, hot-dog necklaces and such. I looked at the Fox web site to see if there was any mention of the story or web links and found that they do not update the site on weekends. So I googled around, and found the wonderful sculpture displayed above (completely unrelated to the story).

The spam sculpture of Anish Kapoor’s Cloud Gate warmed my heart. It’s from 2005, the same year I presented a paper on the legal and social controversies surrounding public photography of this sculpture at the Sweetland writing conference in Ann Arbor, Michigan. The paper is supposed to be included in a forthcoming anthology. I wish I had known of this fabulous sculpture then; I might have included it in my presentation.


There are some interesting issues regarding performance lurking behind recent IP news:

Jobs said he didn’t anticipate that the television networks or movie studios would similarly remove copy protection from their online video.

“Video’s pretty different than music because the video industry does not distribute 90% of its content DRM-free — never have,” said Jobs, Walt Disney Co.’s largest shareholder. “So I think they’re in a pretty different situation.”

The announcement came the same day the European Commission formally charged Apple and major record companies with restricting music sales by letting customers buy music only from their country’s specific iTunes store.

Although EMI is now relaxing its copyright stance (for a price), I was a bit surprised by the listing of “public” venues in a warning screen from a video I watched recently. Coaches? Oilrigs? [ sic] Schools? Does putting this on a warning screen make it so? Evidently some schools have bought into it. How do we differentiate “educational” uses of movies of schools from “entertainment” uses? Schools (and news broadcasts) clearly blur the lines with “info-tainment.”

Looking at the line-up of venues, it seems that they closely match the variety of viewing licenses marketed by Swank Entertainment (excepting oil rigs, of course— who insisted on throwing that in?). For those viewing films on motor coaches, they will provide a handy card to flash to the copyright police if you are pulled over. At issue is not just where copyrighted material is purchased but also where it is performed. As long as the spotlight is directed away from the question of venue, the motion-picture monopoly is safe.

Or perhaps as long as most people don’t call clubs, coaches, hospitals, hotels, oil rigs, prisons or schools home.

Owner of a Lonely Heart

I’ve been alarmed about the corporate domination of the past, not only in regard to controversies like the Google book search, but in regard to the troubling “copyright” claims of image banks and historical societies. Should we allow companies (regardless of legitimate claims about the cost of historical preservation) to own huge swaths of image documentation as their exclusive property? In what way does this promote “progress in the useful arts and sciences”?

In the short term, the cost of digitizing, cataloguing, and indexing is staggering. To render these artifacts transportable and searchable is useful and certainly promotes progress. But what of the “term limits” of this sort of monopoly? Once the initial investment is made, should image banks be able to profit from them in perpetuity? This could easily become (if there is no term limit) the most profitable business venture ever, because access to the past will have a slow and steady demand from each successive generation. Who should own/control our access to the past?

A key distinction between Google and say, Corbis or Getty images, is that Google only controls the index it creates, not the artifacts themselves. The artifacts remain stuck in the dense amber of the “heirs and assigns” of individual creators. As far as I know, there is no search within Getty or Corbis for heirs and assigns. They claim all historic images as their property. Who can own the past? Only a corporation/trust/foundation that lives in perpetuity dare take things that far; mere mortals should not stake that claim (though they do).

The monster is strengthening its stranglehold, and is poised to be another ATT. Private efforts such as Corbis (in a striking parallel with Amazon’s early history) have yet to return a profit on their investments in images— but there is little doubt that they will. The question is, how can we ever “limit” this monopoly given the porosity of copyright. Should Getty own your grandmother and be able to charge usage fees for snapshots purchased from thousands of attics? Should they be able to do that forever? As the archival image business has crossed over a billion dollars in recent years, no wonder every archive wants to erect a fence in its yard.

I’m less scared of public institutional ownership (though it could easily be mismanaged too) than the corporate giants. But any way you look at it, the public trust (read: common stake) in preservation efforts is generally given little attention. This bothers me.

French Postcards

A contemporary Stanhope rosary from Michioacan, Mexico.
Looking through the lens embedded in the cross presents a view of the Virgin of Guadalupe levitating strangely within a hazy space.

A seizure in 1863 involved a type of photograph that was particularly adaptable to pornography—microphotography. These tiny images, sold as transparencies, were impossible to read with the naked eye and were packaged with special magnifying viewers (called Stanhopes). Numerous patents for microphotographic techniques were filed in 1861 (by Martinache for “microphotographs of jewelry”; Regad, “Prints for microscopes”1862 (Brin fréres; Nachet et fils) during the peak of interest in this novelty. Caught this time with “micro nudes” were Guth and Laufer, who were middlemen rather than photographers. Other firms that tried to register microphotographs with the Ministry of the Interior had similar problems getting their images approved. The list of “planches sans ou avec texts non autorisées” in 1862 included macroviews by Dagron et Compagnie entitled Surprised Bathers, La Joyeuse orgie, L’ Indiscret, Léda; Voland’s micro Enlévement de Psyche and Venus et Adonis; and Villeneuve’s Le Balancoire and Le Hamac (all photos of artworks, which represented another type of illegal image). Some of these works were marked “á la condiction expresse de ne pas mettre á l’étalage” or “pour l’export,” which suggests that they were conditionally approved.

Continue reading “French Postcards”

The Internet Fad

The rapid explosion of Internet technologies is usually taken as unprecedented. I have not shared that opinion, because it seems to me to be “just another technology,” in terms of its utility to the average person. Some people were quick to adopt, while others were not. Technologies are constructed and fall into disuse in pace with their perceived utility. A case in point would be the invention of movable type by the Chinese, with its minimal use and slow spread to Western Europe. Western Europe found the technology more useful, and thus it literally exploded within a relatively short span of time.

The view of technological innovation as the product of “necessity” is easily thwarted— invention is more likely the mother of “perceived necessity” rather than the other way around. However, received histories tend to amplify this aspect—that a technology is created to suit a need rather than providing a more accurate appraisal of the “needs” created by the technology. As another case, one might consider the birth of “information wants to be free” after the invention of the Internet. Suddenly, the “need” for access becomes a driving issue, which, though present, was not necessarily foregrounded in most discussions of print-based technology. The issue was separate, a matter for those in control of the printing and dissemination of works, not for the general public who consumed the works. Closing the gap between producer and consumer created new necessities. Information doesn’t want anything. The public that uses it does.

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Sometimes I can be really slow to catch up on things. I don’t read Stavros as often as I should— he has covered the whole advertising on blogs thing with his usual verve and style. Highly recommended.

I can remember chipping in on some PayPal accounts to help people buy computers/server space in years past. It doesn’t bother me when people hawk their own wares, or extend the cup when they are in need. It does bother me when the landscape becomes littered with billboards, though. Especially when the sites are ostensibly “personal.” If you’re selling something, just say so. Don’t preach “power to the people” and then hang a sign for Exxon or Halliburton on your site. I tend to think that this sort of behavior is hypocritical.

Context sensitive ads crack me up. In an odd coincidence, we were covering DRM (Digital Rights Management— things like the iTunes restrictions on the number of computers you can access your songs on, for the non-copyright geek folks) in class today while pointed at a couple of resources first thing this morning. The EFF page on the subject, which is good, and the DRM Blog. DRM Blog for some reason has lots of google ads which want to sell you all your DRM needs. Am I the only one who finds it odd that a web site which is obviously critical of DRM would be advertising for companies that make such products?

Maybe it’s just me.


Noted for personal use: now, it’s an old story.

I wonder about the productivity of considering photographs “reproductions.” A story about a photographer who was stopped from photographing the bean in Chicago generated a flurry of activity over an effort by the city to secure the rights to reproduce the sculpture, in the name of the “artist” of course. One commentator suggested:

My advice for the citizens of Chicago is to give Kapoor a lesson in absurdity. With its mirrored surface, Cloud Gate relies on the reflection of it’s surroundings to make it’s artistic statement. Simply copyright one of the works that surround it. Without the express permission of the copyright holder, Kapoor cannot incorporate the work into his piece. It will have to be removed, or he will need to be a little more reasonable.

You can’t copyright the appearance of something. You can, however, secure protection under trademark. Another approach would be to patent the particular “reproductive technology” of an oddly shaped reflective bean. The distinctions between copyright, trademark, and patent are confusing as hell. The core premise of copyright is to protect things from reproduction. I think it is more productive to look at photographs as productions, hence unless the technology involved is patented or the illusion conveyed trademarked, the question of “reproductive rights” seems mute. One might patent the sausage-grinder, but the sausage that comes out of it shouldn’t be allowed the same sort of protection.

I think that the approach of Chicagoland Photobloggers is perhaps the best of all. Thanks to Flickr, one can just peruse the endless variety of sausages coming out of the bean.