Tag Archives: commentary

informal commentary

tentacles of copyright paranoia

Copyright paranoia is, truly, everywhere. Reading a NYT article about websites that track the Iraq war dead, I noticed this:

The Iraq Page (iraq.pigstye.net) is the obsession of Tom Willett, a software developer from Bloomington, Ind. The site includes a single news account for each United States service member killed in combat, with a fluttering American flag next to a photograph, and room for comments. At last count, there were 3,579 individuals memorialized from the coalition forces, 3,313 from the United States.

“I copy most of the articles, because I know the articles won’t be there in a few months,” he said. “I don’t have the copyright. I steal it from everybody, and I don’t care who knows about it.” The site, which Mr. Willett said had 2,000 to 3,000 unique visitors a day and 20 to 30 new comments a day, has never been asked to take down an article.

He automatically thinks about copyright, decides he’s stealing and that he’s going to commit civil disobedience because of the importance of the issue. Where is fair use in this equation? The NYT writers simply report his concerns, without explaining to the reader that this would be an arguable fair use issue.

if the evidence doesn’t fit, ignore it

Years ago, my partner read some of Nicholas Wade’s NYT articles and shook her head at the shallowness of his analysis. It hasn’t gotten any better since. The NYT is running a lot of articles right now about sex, gender, and sexuality, and Nicholas Wade’s latest article is crap. He writes like the answers have been found, and, surprise, they’re exactly what people a hundred years ago thought, too. Conflicting evidence? Why bother? This is the New York Times, not actual science.

Sigh. Remember Gina Kolata? She was good. Why can’t we have good science writing again? (In fairness, the single line from the Wade article that annoyed me the most wasn’t Wade’s, but a quote from J. Michael Bailey: “If you can’t make a male attracted to other males by cutting off his penis, how strong could any psychosocial effect be?” Indeed. Because when I think about how to raise a gay man the first option that occurs to me is cutting off his penis. Jackass.)

The video is also annoying: My invisible lesbian partner and I sat with open-jawed amazement as they talked about straight boys, gay boys, straight girls, and … let’s move on to another topic altogether, the sweaty t-shirt experiment (No, not the menstrual cycle-synching armpit sniffing experiment; the women sniffing men’s sweaty tshirts that shows that women may develop even emotional attachments to men with different immune systems.) So a total fluff piece with little useful content.

Natalie Angier’s article on sexual desire, as ever, is much better. (I especially liked the quote from the psychologist in her 50s: “Listening to Noam Chomsky always turns me on.” I hear ya, sister.) Angier treats some of the same subjects as Wade, but much more reasonably. Wade reports that scientists have found X, we now know Y, and other very definitive statements of Objective Scientific Truth. He describes the experiment in the terms of the conclusion, thus making it appear foregone, unquestionable, certain. By contrast, Angier describes experiments in detail, pulling out the findings, and then labeling the assumptions and hypotheses. She reports the uncertainties as well as the findings and (tentative) conclusions. The reader has a chance to understand the experiment and draw their own conclusions, and compare those to the conclusions of the scientist or commentator or writer of the article. … And she’s not just a better science writer, she’s actually a better writer. Her prose is actually enjoyable to read.

CD sales up, down, irrelevant

The large corporate music industry has been whining to all the major media outlets that its CD sales are down. Accordingly numerous stories have been written in the last month about the trials and tribulations of the industry, whose dreadful loss of CD sales hasn’t been made up by the sale of individual songs.

First – I note that the transition (back) from albums to songs is touted as a bad thing, somehow. This, I really don’t get. The vast majority of commercial albums produced in the last forty years have not been “albums”, but collections of (a) hits, (b) a few noncommercial interesting songs, and (c) several filler songs, in varying proportions. These artists were being forced to produce albums when they wanted to produce songs. It’s as if every short story writer were being forced to write massively long novels.

That’s actually not a good model for creativity or quality artistic production. Why would anyone bemoan this transition? The more viable economic models and methods of distribution there are, the better. Now, artists can produce songs, longer pieces, albums, etc., according to their degree of inspiration.

It really bugs me when people (read: middlemen businesses) get so wedded to particular models that they act as if those models are the natural, One True Way, despite manifest evidence to the contrary. I’ve grown used to this absurdity in terms of the music industry thinking they have a god-given right to sell music as if it were on degradable media to consumers who do not have quality reproduction material — to force us all to live in the 1950s, in other words. But you’d think that in at least one area, they would welcome what is obviously good?

Second – it may all be just so much BS anyway. Yes, the major record industries are reporting CD sales down (and their numbers have proven oh-so-trustworthy in the past), but Harold Feld at Public Knowledge is reporting on information from CD Baby that sales are up — for independent musicians. In other words, long tail economics are at play here: The top part of the curve may be flattening out to some extent (and Feld reminds of us of some of the reasons that the late 1980s/early 1990s were a golden age for CD sales) but music overall is more a part of our lives than ever.

wireless isn’t the problem; authentication is

In a recent article bemoaning the difficulties faced by business travelers of getting Internet access in their hotel rooms, not once did the writer ever describe the real problem. The problem isn’t access to the network; in almost all instances, the problem is authentication to the network, because the network employs some proprietary network authentication protocol. If they just gave it away for free then I’d bet 90% or more of their problems would go away. (As would a lot of the costs tied up in these weird service / helpdesk plans, too.) They could even do some network authentication using WEP passwords, although, really, what’s the point.

WSJ editorial page embarrassment

The WSJ editorial page is not something I ordinarily frequent, but they recently wrote an editorial on the DMCA. Aside from a reflexive and simplistic “intellectual property is good so don’t bother me with nuance or details” attitude, this paragraph struck me:

Google claims “a legal safe harbor” from copyright infringement under the 1998 Digital Millennium Copyright Act, which allows Internet firms to provide a thumbnail of copyrighted material. The firm also asserts a right to reproduce and distribute intellectual property without permission as long as it promptly stops the trespass if the copyright owner objects. That’s like saying you have the legal right to hop over your neighbors’ fence and swim in their pool — unless they complain.

WSJ 2006/12/1 (it’s the editorial page so the person who actually penned this embarrassment doesn’t have to sign his or her name)

I realize that editorial pages don’t require fact-checking, but getting the law this wrong is embarrassing. Readers of this blog probably are very familiar with the DMCA, but a couple of quick pointers:

  1. The DMCA doesn’t “allow[] Internet firms to provide a thumbnail of copyrighted material.” I believe the hopelessly inept WSJ editor was probably thinking about the Kelly v. Arriba 9th Cir. decision, supported recently by the 2d Cir. decision in Dorling-Kindersley. Both of those interpreted fair use (17 USC 107) to include offering thumbnails for a different purpose.
  2. “… without permission as long as it promptly stops the trespass if the copyright owner objects.” Presumably here they’re talking about the DMCA notice-and-takedown provisions, 17 USC 512. Of course, these provisions don’t apply to original infringement — reproduction and distribution — but to the responsibility of ISPs and other intermediaries when their networks are used for reproduction and distribution. That is, at best, secondary infringement (contributing to or vicariously responsible for someone else’s infringement), and it’s really not at all clear that ISPs would be liable for it even in the absence of the safe harbor provisions. Which aren’t “claimed” by Google et al but ”given” to them by Congress.

Since they can’t be bothered to do even the barest minimum of fact checking, and don’t understand what they’re talking about, it’s hard to actually take them seriously. Are they this bad all the time?

Gigi Sohn of Public Knowledge probably very wisely didn’t bother correcting their extremely shoddy fact-checking but responded to the overall tenor of their arguments; the WSJ published their letter – and because the WSJ puts their content behind passwords, the full-text of the letter is available at PK’s blog by Alex Curtis.

political grandstanding: SO annoying

I really can’t stand it when politicians engage in cheap & sleazy grandstanding, knowing that what they’re doing is actually irrelevant. I’m speaking of Mitt Romney’s “lawsuit” to get the Mass. courts to step in to force the Mass. legislature to vote on an anti-same-sex-marriage amendment. [nyt 11/25]

Cheap & sleazy political grandstanding may be characterized by (a) someone making a gesture that appears potentially functional, but (b) is actually known to be ineffective, and (c) is undertaken for purposes of making a point.

I have no objection to Romney just making the frickin’ point, already. He could, and should, decry the legislature for not voting on the amendment. Sure, it’s tedious, hateful, and boring, but it’s to the point.

On the other hand, filing an obviously meritless lawsuit, rather than just making speeches, wastes government resources. I honestly think Romney and his co-litigants should be sanctioned for filing frivolous litigation.

Not only is this lawsuit legally frivolous, but it’s stupid: Even if he did force a vote, he doesn’t have the votes!

Thanksgiving weekend research questions: (1) Does Massachusetts have a political question doctrine to get this thing done with quickly; and (2) what are the possible sanctions for filing frivolous litigation.

Update 10 minutes later:

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A failure of the public interest tech law community

From my perspective, the Section 230 (qualified by dicta) victory in Chicago Lawyers’ Committee for Civil Rights Under Law v. Craigslist (PDF), is fine, unsurprising, but a relief. But more importantly, to me, the case demonstrates a significant and ongoing failure of the public interest tech law community: Explaining to people outside our community why it is in the best interests of progressives and folks fighting discrimination to enable a robust sphere for communications.

For those not in the know, the CLCCRUL fights housing discrimination. One way they do it is by using laws that prevent the publication of discriminatory housing ads in, for instance, newspapers. The CLCCRUL filed suit against Craigslist for discriminatory housing ads that were posted on its website. Craigslist lets users post their own ads, and lets users “flag” other user-oriented content that is illegal for whatever reason, like the Fair Housing Act. It’s a largely automated and user-driven moderation process like many others on the Internet. In 1996, Congress passed Section 230 which protects Internet service providers (called “Online Content Services” or OCS’s) from liability as a “publisher” for their users’ content. Courts have pretty much uniformly read Section 230 as Congress exempting ISPs/bulletin boards and the like from any liability for their users’ messages (except IP which is explicitly exempted from S.230’s “safe harbor”). Legally, there isn’t much to the case, because Section 230 squarely applies. Emotionally, as a matter of justice, it seems to some to be a different matter.

Section 230, like copyright law, clickwrap clauses, reverse engineering, WIPO, Internet jurisdiction, and other such issues can seem pretty bloodless when you’re fighting for the right to housing, reproductive decision-making, and healthcare, or to end race discrimination, the death penalty, or torture. Social-change activists may humor us occasionally, but they don’t see those of us in the information activist community as really, truly, fighting for something that they should care about. They just don’t get it.

To me, these issues are fundamentally free expression issues — which, as Emma Goldman saw, underpin the right to advocate for every other right.

For Section 230, for instance: The Internet is the largest and most open platform for human communications that has ever existed. The technology needed to gain access to every other person on the Internet is increasingly affordable to everyone, with cell phone networks, free wireless municipal networks, cheap computers, and so on. People and “society” more generally are now learning to navigate and contribute to and draw from the increasingly vaster floods of knowledge. I believe that the transformative power of that access to knowledge offers humans the best opportunity yet to transcend the petty powers of principalities, the tyranny of learned prejudice, the prison of ignorance. The pen is mightier than the sword–it has the power to destroy fascism at its root.

And Section 230 is a critical piece of that. If you can’t speak because a gatekeeper controls the speech, and the gatekeeper could be subjected to liability under someone else’s local rules, then your ability to speak and access speech is set to the lowest common denominator available to all. A race to the bottom in terms of what’s allowed.

Permitting people to speak in untrammelled ways leads to offensive and arguably harmful speech. But if you create a chokepoint for speech on the greatest speech platform yet to exist, then others will be only too happy to use that chokepoint for their own agendas.

And it’s not just speech. The people that CLCCRUL is representing–anybody seeking housing, because everybody benefits from a non-discriminatory housing market–are the primary beneficiaries of an open, user-controlled housing information market. They have access to more postings and information. They don’t have to go through rental agents who may have secret or subconscious prejudices. They have the ability to flag biased postings and police the community, themselves. (It’s the ultimate form of community policing, and it works a hell of a lot better than any attempt at governmental regulation ever can.) And for a myriad of other reasons, an open, responsible-to-the-community, speech platform is better, both in the short-term and in the long-term, for people seeking housing and for people seeking an end to invidious discrimination of all kinds.

I haven’t even gotten to the real and qualitative differences between printing-press and broadcast media, and the Internet. But it’s a worthwhile exercise to look at the best arguments for regulating print and broadcast media, and assess how those arguments play out on the Internet. Defamation, for instance. One good reason for regulating print publishers of libel (defamation) more harshly than spoken publishers of libel (slander) is that print publishers have a powerful tool at their disposal that the victim of defamation may not: the ability to reach a mass audience relatively cheaply. How does that map to the Internet? Well, it turns out that in terms of being able to respond to the libelous speech, the Internet is a lot more like spoken word (slander) than it is like printing press or broadcast (defamation): It’s pretty easy to get access to the same forums & the ability to respond to the libelous speech. So, one could argue, libelous speech on the Internet is less harmful than libelous speech made on the radio station or in the local newspaper. The rationales for restricting publication in print newspapers may likewise apply differently in the Internet. This is a case that our community should be making, persuasively and directly, to communities that are seeking, for very good reasons, to regulate speech on the Internet.

… Anyway, rather than castigating or calling for Rule 11 sanctions against the CLCCRUL attorneys as a number of folks have done, I’d rather see us try to reach out to them to explain why it’s in the best interests of their clients to support Section 230 and craigslist, instead of attacking it. (I don’t mean CLCCRUL directly, btw; once you’re in litigation it’s difficult to shift gears. But other social-change activists.) Others, no doubt, can make different, better, or more persuasive arguments than I have. I hope they do. We in the public interest tech community have an affirmative responsibility to lay out these arguments, not just to ourselves, but to our activist allies, whoever they might be.

artists and IP

The NYT has two interesting stories right now featuring, shall we say, different approaches to artists and IP.

The first in a genre near and dear to my heart is a profile of Dark Horse Comics, which “built [their] publishing platform around creators’ rights … [Their] pitch was, ‘We’ll match the rights that you get from other companies and we’ll let you own the work.’”

The second is an article about Daniel Moore, a photo-realist artist (he calls it “photofuturism”) of Alabama sports moments. The University (as we in Alabama called it) is suing Moore for trademark infringement of its crimson-and-white color scheme. Yea, Alabama, Crimson Tide, yadda yadda yadda fight song lyrics sung ironically. (I went looking for the actual fight song lyrics, which did not comport with my memory, and found myself in a hell of blinking and color-challenged websites dedicated to Crimson Tide football obsession. Dave’s College Football Fight Songs is restfully simple, for those of you who want to know the actual lyrics, and not the one line that is engraved falsely in my memory.)

X-posted at sivacracy

newborn citizens denied healthcare

In a time of many horrors, my eye was caught by this outrage [NYT 11/3]:

Under a new federal policy, children born in the United States to illegal immigrants with low incomes will no longer be automatically entitled to health insurance through Medicaid, Bush administration officials said Thursday.

“Children born in the United States” — i.e., US citizens.*

Now, when a woman gives birth on Medicaid, her child is only eligible for care once the parents get the birth certificate & file a Medicaid application. Of course illegal immigrants may be leery of filing paperwork, and even if they do, it can take a long time to process — weeks or months. So infants in their first few months of life may not receive preventive care and care for chronic conditions.

Thanks, Rep. Charlie Norwood (R-GA). What a good idea, you ass-hat.

S. Kimberly Belshé, California’s secretary of the Health & Human Services Agency, said: “By virtue of being born in the United States, a child is a U.S. citizen. What more proof does the federal government need?” Georgia citizens should try to recruit her to replace Rep. Asshat.

* To be completely fair, I think infants — all people — should get medical care regardless of citizenship. But surely even the hardest anti-immigrant folks have to quail at the thought of newborn US citizens being denied healthcare they need and have a right to simply because of bureaucratic delays.

Boys read boys, NYT Editorial Board edition

string of author photos at NYT MidtermMadness blog

Good going, NYT — on their new “http://midtermmadness.blogs.nytimes.com/”, which offers an array of commentators, professors, and pundits to comment on the 2006 elections … they’ve given us six (6) men, all apparently white, and dare I guess their class backgrounds? Way to seek a diversity of opinion.

 
 
 
 
 
 

NJ SSM decision

The NJ Supreme Court is releasing its SSM decision today @ 3pm. [available at NJSC website]

Will they help us out but energize the Republicans and lead to queers being blamed if the Dems don’t take the House or Senate? or will they fuck us over leaving everyone, but us, happy?

(And if I’m writing to a general audience comprised mostly of non-queers, should I really use the pronoun “us”? I’m doing it anyway—learn to read as The Other.)

update: A winnah!

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LA Times thinks Hollywood is going too far

Is it a sign when the LA Times thinks Hollywood is going too far? God, I hope so.

In today’s editorial, the LAT says:

[editorial summary: Copyright infringement is bad, intellectual property is good, yadda yadda.] But what the entertainment industry is seeking in this year’s proposals isn’t merely protection from piracy; it’s after increased leverage to protect its business models.

That’s why lawmakers must bear in mind the balance needed between copyright holders’ interests and the public’s, something Congress has not done well lately. In 1998, it gave copyright holders broad power to block legitimate uses of works, even those in the public domain, through the use of electronic locks that impede copying of digital products. And that same year, it prolonged the public domain’s starvation diet by extending copyrights an additional 20 years, to 70 years beyond the death of the creator.

As they weigh the entertainment industry’s pleas, lawmakers shouldn’t assume all consumers are bootleggers and every digital device is a hand grenade aimed at Hollywood.

I really ought to read the LAT more often, because this seems pretty sensible.

what is rational: rationally angry about irrational decisions

NY’s Court of Appeals just handed down its no-same-sex-marriage decision, holding that denying marriage licenses on the basis of gender to same-sex partners does not violate New York’s Constitution. In my opinion, this is a big setback for equal protection and individual autonomy. We had a certain momentum going forward in terms of courts accepting the logic, and this decision slows that down. The decision is also remarkably retrograde in some of its reasoning.

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tacky but lawful derivative liberty

Statue of Liberation Through Christ; photo by Rollin Riggs

A fundamentalist mega-church in Memphis has repurposed the Statute of Liberty. [7/5 nyt] Lucky for them the Statue is in the public domain. Shake your head at its awfulness at thestatueofliberationthroughchrist.org. Christian nationalism, indeed.

Maybe someone should remind them that the Statue’s French.

 
 
 
 
 
 
 
 

New Orleans & ALA

I just got back from ALA for a panel on RFID (“Tiny Trackers”). As usual, ALA was chock-full of stimulating folks and ideas. A few notes follow, but first a report about New Orleans.

New Orleanians were grateful for ALA’s presence. ALA was the first large conference to keep its commitment to New Orleans since Katrina. The tourist and business sections of the city feel — well, a little empty, a little recessional. More closed & out of business signs than usual. In the French Quarter, the local businesses are mostly open — but nearby on the Riverwalk shopping mall, many of the corporate-owned businesses are still closed. Make what you will of that. But walk just a bit beyond the French Quarter into the 8th and 9th Wards, and things are quite different. I walked over that way on Sunday after my talk, although I didn’t make it much past the Vieux Carré. (It’s hot in New Orleans!) But even as far as I went, it’s clear that the recovery is only partial. And the reports from locals, and ALA folks who biked or bussed around in other districts, are depressing. The country has moved on and forgotten about New Orleans — a city that is one of this country’s greatest treasures. As my partner said, it’s like the media is Vamp Willow: “Bored now.”

….

The Lyman Ray Patterson Award went to Prue Adler, well-deserved. Chris Anderson’s “The Long Tail” was, while largely a regurgitation of his schtick, very good because his schtick is very good. (As long as he stuck to his schtick, that is. A number of folks quibbled with his naive market-centric and tech-utopian view of net neutrality.) The Free Speech Buffet was great, with an Emergency Zine Reading:

* Elaine Harger, in response to a censorship attempt, gave the would-be censor a button that said: “Use your brain: the filter you were born with.”

* Amusing reading of overblown prose from romance and other novels from Alycia Sellie. (I list this for its copyright relevance.)

* Ammi Emergency reading from a zine about post-Katrina looting of supermarket. “After the storm, New Orleans was even more New Orleans.” Community looters: One “incompetent neighbor” emerged with a broken bag of box wine and a rotten ham, and when it was pointed out, was upset & said “I’m no good at looting!” She was promptly consoled by another man who said, “You’re doing just fine honey.”

net neutrality provision fails in the House

we knew this, right? that legislative attempts to do something positive for consumers were likely doomed? [nyt 6/9]

consumers, if you get Internet service from a phone or cable company, do you think you pay enough to have service already? do you think your broadband provider ought to be able to charge you more for getting email from a non-corporate-licensed listserve, or using Google? you might want to consider calling & explaining that you already pay them to deliver a particular service–not to spend millions of dollars in lobbying to ensure their “right” to double-bill you for Internet access.

Save the Internet and Public Knowledge are the places to go on this one. Go now, while you’re not being charged double for the privilege.

contraception, vaccines, alarming men

Two quickies:

(1) badgerbag posted this photo of Walgreen’s “Emergency Contraception Encounter Form” — probably from California, but perhaps implemented elsewhere. Nine states (including California) allow women to get EC directly from a pharmacist. Apparently, this is what women have to do to get EC. Holy Griswold, Batgirl.

(2) The FCC has finally broken thru the rightwing lobby to approve the HPV vaccine. [nyt 6/9] I note that the US has many states that will not be able to afford to disseminate it. Or will choose not to be able to afford to disseminate it, probably because they need to give tax breaks to sports stadiums or something important like that. I also couldn’t help but note the tender concern for the precious anxieties of “men”:

Merck had originally hoped to get the vaccine approved for use in boys. But although women have routinely allowed swabs to be taken of their vaginal cells, the company found that men rebelled against the use of emery boards to collect cells from their penises. Researchers eventually discovered that jeweler’s-grade emery paper effectively removed cells without alarming men and were able to complete their studies.

Geez.

“scan this book”?

siva linked to “scan this book!”, a NYT magazine article by kevin kelly, with a promise to post comments about it soon. i look forward to them, and in the meantime will post my own (hurried & no-doubt flawed) quick reactions to one point:

Authors and publishers (including publishers of music and film) have relied for years on cheap mass-produced copies protected from counterfeits and pirates by a strong law based on the dominance of copies and on a public educated to respect the sanctity of a copy. This model has, in the last century or so, produced the greatest flowering of human achievement the world has ever seen, a magnificent golden age of creative works. Protected physical copies have enabled millions of people to earn a living directly from the sale of their art to the audience, without the weird dynamics of patronage. Not only did authors and artists benefit from this model, but the audience did, too. For the first time, billions of ordinary people were able to come in regular contact with a great work. In Mozart’s day, few people ever heard one of his symphonies more than once. With the advent of cheap audio recordings, a barber in Java could listen to them all day long.

Um, no. I mean, partly yes, but partly no. Let’s not get the “protected physical copies” cart before the horse of creativity and economic power. The “greatest flowering of human achievement” has been enabled by a relatively wealthier populace; the wealth has been largely enabled by technology which enabled faster & more efficient production and resource extraction. Billions of ordinary people can come into contact with works, great or otherwise, because they have surplus capital and time to purchase them (technology, democracy, FEMINISM, the labor movement, etc.); it is cheap to reproduce them (because of technology); and as a result of this expanded marketplace, and greater leisure / capital, more people could create their own works. (And the barber in Java, if she is like barbers in many other developing nations, is listening to the recordings despite copyright law, not because of it.)

The transitional technological moment when works could be mass-produced but only with expensive equipment and with relatively expensive resources allowed a chokehold on that production, and certain parties were able to make a killing on that chokehold — record producers, publishers, and the like. But the chokehold didn’t enable the flowering — like a dam, it just siphoned off energy from a river that was already flowing. Sorry for the mixed metaphors. But let’s not isolate creativity and copyright from history and the real world.

There’s no question that, as Kelly suggests, this is a clash of business models. But it’s important to characterize the middle-man business model correctly: not as the cause of creativity, but as a by-product of creativity + a transitional technological state. If you think about it that way, you quickly figure out that middle-men’s interests not only aren’t protected by copyright law, they’re not even the interests described in the Constitutional “Authors and Inventors”. If the middle-men want to continue making revenue, they’ll have to do it in some way that adds to the value. The principal means they formerly had of adding value no longer cut it. Creation and capture are getting cheaper, being reduced just to their human inputs of creativity and ingenuity — as they should be. And distribution costs are approaching zero. Thanks for bringing your expensive printing presses, recording and processing equipment, and land-based distribution methods to the party, guys, but we can party on without them now. What else ya got? Editing? Selection? Indexing? Archiving? Tagging? Promotion? Because all those things could be very helpful.

… Anyway, I largely enjoyed the article, although I skimmed it very quickly during a short break. I look forward to reading it again at more leisure (and to Siva’s eventual commentary).

comedies & tragedies of fair use

5/3 update: variant version of this post (an older version of the post but marked-up with hyperlinks) + other blog commentary from Joy Garnett @ newsgrist … liveblogging the meeting and this session
@ iptablog —

The Comedies of Fair Use meeting wrapped up a few hours ago. Among the best presentations were the art panel Saturday morning, in which Joy Garnett and Susan Meiselas each discussed their side of the incident that became known as JoyWar. (There were other panelists in this session too; for instance, Art Spiegelman, who was hilarious.)

“JoyWar” began when Joy Garnett appropriated a photograph she found on the Internet, and repainted it. Shortly after exhibiting it, she got a cease-and-desist letter from the photographer, Susan Meiselas. Joy’s art rapidly became a cause celebre among Internet artists and activists, who reposted Joy’s art and remixed it with many new works.

Susan and Joy had never met before the conference, but they both agreed to come and tell their story in a joint session.

Joy explained that she sought images on the Internet of people exhibiting strong emotions; she found the images, and then set them aside for a time, specifically seeking to decontextualize the images so she could later focus solely on their aesthetics. She then repainted the photo, and exhibited it as part of an exhibition called “Riot”. Mieselas’ photograph was perfect for Joy’s intended project: it showed a young man about to throw a molotov cocktail, an expression of intensity on his face.

Susan introduced herself by explaining that her goals as a photographer were precisely the opposite of Joy’s: That it was critical to her to contextualize the photograph, to embed the image in the subject, the historical and political moment in time. The photo, she explained, was of a young man on July 16, 1979, the night that Somoza was finally driven out of Nicaragua, and the Sandinistan revolution triumphed. The photograph of this young man in fact became emblematic of the entire movement, of the revolution itself, and was stenciled and appropriated by all kinds of people, with no objections (or permission) by Susan. Susan felt a strong social contract with the subjects of her photographs, and went back years later to contact them. This young man, it turned out, was still deeply committed to the movement.

The striking thing was the obvious pain that both women felt at the conflict. Though their artistic goals and methods clashed, both Susan and Joy were thoughtful and sincere. Susan, for instance, really seemed to feel that she was possibly “old-fashioned”; that she just didn’t get the new methods of appropriation. Joy, for her part, seemed to really appreciate Susan’s goals and interests; but stood firmly on her own principles. It really seemed in some respects a tragic conflict of interests, because, yes, Susan had real interests at stake. You couldn’t but respect Susan’s interests and the respect that she herself had for the subject of her work. I’m certain it took tremendous courage for Joy and Susan to come together in a public forum, after such a well-publicized conflict. And it’s a testament in particular to Susan’s courage and honesty that she presented her beliefs and reasons so articulately and passionately in the face of a potentially hostile audience.

The problem is that the interests Susan was seeking to uphold, through the tool of copyright, are not traditional copyright interests. Susan wasn’t particularly interested solely (or possibly at all) in trying to protect her licensing revenue. She was interested, rather, in protecting her right to be custodian of the image: an interest that isn’t even captured in moral rights as defined in Europe.

At the end of the day, Hank Shocklee, of Public Enemy, gave a “times they are a’changing” / “to the barricades, comrades” speech: He basically said that the old models of control are dead. It was a great moment, and I hope it’s true. There’s no question that we are paying too high a cost right now from excessive control over information. We are losing works, we are losing consumer rights, we are losing new forms of artistic expression.

But with every change, there are costs. Those who control information sometimes do it for a good reason. The hypertrophic growth of copyright law (as Jamie Boyle put it) has harmed the essential purpose of copyright law, the encouragement of creativity. But that same hypertrophic, harmful growth, nevertheless allowed Susan to pursue other interests not well protected in any other way: privacy, dignity, trust, political context and memory. I hope we find other ways — human, person-to-person ways — to protect those interests; they were never well served by copyright anyway. But it’s important to count the costs as well as the benefits for every change. I’m incredibly grateful I had the opportunity to see Susan and Joy speaking together so that I could see and hear the messy human values and reasons behind the legal conflict.