Tag Archives: fair use

America, Public Domain Killjoy

It is time once again for Public Domain Day, that wonderful happening in which creative works both celebrated and forgotten join — or return to — the public domain.

Once again, the United States will sit this one out. The Public Domain Review coyly asks:

Wondering what will enter the public domain through copyright expiration in the U.S.? Like last year, and the year before…Nothing.

I am reminded of the baseball poem “Casey at the Bat” (Ernest Thayer, 1888), in which the titular hero confidently lets the first two pitches sail right over the plate without taking a swing — two strikes. He swings mightily at the third; “the air is shattered by the force of Casey’s blow”, and then:

Oh, somewhere in this favored land the sun is shining bright;
The band is playing somewhere, and somewhere hearts are light,
And somewhere men are laughing, and somewhere children shout;
But there is no joy in Mudville — mighty Casey has struck out.

At least Casey swung once. The United States elects to throw the game entirely, year after year. That poem, aged 126, is in the public domain in the U.S. (or, anyway, we should very well hope so). Like many, I first learned the poem from the wonderful Disney adaptation and animation of 1946. With Disney one of the top-billed villains of efforts by public domain supporters to limit duration of copyright (or, more accurately, to limit iterations of expansions of duration of copyright), one may have precious little confidence that the ’46 version will join the public domain any time soon.

Much as with global warming, in which we can hope to prevent further damage but not to reverse damage that is done, the outlook for limitation of copyright term extensions is dim and we will continue to see problems play out for many years. We might hope for creators and their heirs to voluntarily release works from copyright restrictions after a reasonable term. A large problem, though, will be so-called orphan works, those that are clearly under copyright protections but that cannot be licensed or released to the public domain because the rights holders are unknown or cannot be found. These already are a problem, of course, but with the Web as a fantastic platform for producing and fixing (and remixing, but let’s not get ahead of ourselves) creative works, we see a proliferation of content that is subsequently abandoned, or (worse) disappears without a trace or a copy, or (perhaps worst) remains in the hands of hosts with perpetual rights over the content.

Content hosting is tremendously convenient and often free of cost — or at least free of visible costs. Our conversations, pictures, and essays are held and hosted by others who maintain rights to keep and display them. These entities likely do not own your content and are limited in what they can do with it. What happens when you walk away from some blog site or social network, when you adopt a new email address and let the old one fall into disuse and eventual suspension, when things you have made that are worthless to you but valuable to another languish on someone else’s servers? The hosts can probably delete your content, of course. They can hold onto it forever. They cannot sublicense it or grant others new permissions, but if they have rights to monetize the content in some fashion, they may be reluctant, as a matter of principle, to support limitation on copyright term. These entities in charge of vast quantities of information may see little incentive to ever let go.

What can we do? Among other things, we can each choose to:

  • own our own data and do business with those who both support customers’ ownership of data and are transparent with how they use customers’ data
  • release our copyrighted works under some kind of open license — or even release them to the public domain
  • support copyright policy that truly promotes innovation and advances the common weal
  • help to inform and educate others

The Internet Age has changed the way that we produce, consume, and share content. The culture of the Web is largely one of sharing, re-mixing, and re-use, but it is dangerous to misunderstand what allows this re-use. People often misunderstand copyright and the public domain. “I got this picture from Google Images, so it is public domain.” Even academics of my acquaintance, who assiduously seek out and punish plagiarism, believe that “freely available on the Web” is equal to “public domain” or, at least, “free to reuse”. Part of what powers the Web is fair use, and that is wonderful, but much of what powers the Web is licensing agreements with impersonal, profit-driven (which is not to say wicked or malicious) entities. The danger is that we will continually surrender rights in exchange for mere privileges; that convenience will encourage us to let others host, license, control, and perhaps simply own our creative expression; that we will then think ourselves happier than ever before.

Where was I? Right, Public Domain Day. The United States. The point is simply this. Let’s please, please please, please, please try to be less absurd in our copyright legislation. Let’s protect innovation, let’s reward creators, and let’s support culture by letting people actually get to use it, meaningfully, in their own lifetimes.

[Not] Understanding copyright, fair use, and public domain

I am frequently surprised by how many people do not understand copyright, fair use, and public domain. This lack of understanding is not good; among other things, it means that those who do understand copyright (i.e., those who can afford to pay scads of lawyers to understand it for them) can drive legislation, policies, and court decisions favorable to their interests. By and large, regular consumers and independent/small producers are at a disadvantage.

In terms of copyright, the Web is a very curious place. It is at once awash in copyright violations and over-stringent in knocking down content pretty clearly protected by fair use. In the first instance, a lot of people just do not especially care — I take a nice photo or jot down a great joke or epigram; my friend posts it to social media; it gets copied and re-copied. I may not care because I never intended to monetize it or assert my intellectual property rights; I am just happy to see my work proliferate. Had I thought about it, I might have used a Creative Commons license or similar. In the second instance, big content creators, owners of lots and lots of valuable IP, see the Web and the Internet more generally as a battlefield. Their interests lie in licensing, in click-wrap, in DRM, and in eroding or obscuring fair use rights. Read Terms of Use and licensing agreements. Often they explicitly prohibit uses that would almost certainly be protected under law. Challenges to this kind of behavior could end up in a court, which inherently favors those who can spend time and money on lawyers — and without even risking emotional/health consequences.

Frankly, if my job did not involve licensing and IP, I might not know or care much about copyright…so I do sympathize with those in the dark. Still, how frequent is my surprise! In a recent Ars Technica article, What Would Twitter Do? Musician’s tweets of Sony e-mails lead to threats, which involves a musician in some hot water for tweeting images of stolen/leaked Sony property, the following jumped right out at me:

“To me, it’s public domain,” said Broeksmit. “I don’t see it as stolen property. I mean, maybe at one point it was. I don’t know what the line is. I figure, other people are doing it — I didn’t see the harm in it.”

One comment on the article replies, “People really need to learn what public domain is.”

Note that the person quoted in the article is a musician, whose livelihood probably depends heavily on the creation, monetization, and protection of intellectual property. When he says “public domain”, he probably truly means “fair use”; when he means “fair use”, he probably truly means “fair play” — that is, while legally shady, releasing these documents is morally square. We have to stick it to big corporations, right? Right? At least, that is what I read into a statement that is otherwise fairly nonsensical.

What bothers me particularly, over and above the very careless use of a concept (public domain) that is very important to me, is the statement “I don’t know what the line is.” With this wonderful, beautiful, fragile Web we have built, information on where the line is can be found within minutes. Fully understanding all this stuff is quite difficult, but getting the basics right before thoughtlessly firing off tweet after tweet is not. A web search for “define public domain”, “define fair use”, or “define copyright” is a great place to begin. Of course, anyone with the stomach to trawl through 1,288 pages of “copyright practices” — all in PDF format only, woohoo! — can just go here:
Compendium of U.S. Copyright Office Practices, Third Edition.

There is a lot that Sony and I would probably disagree about in any copyright/fair-use conversation, but I think we are on the same page here — stolen correspondence that has been dumped on the Web is about as far from public domain as it gets. When people do not understand this and abuse terminology in defense of arguably immoral and probably illegal behavior, limitations on copyright terms, protections for fair use, and expansion of the public domain potentially suffer.