Author: Leslie Burns

Ruh-roh…

For photographers who don’t want to get too bogged in the details here’s the short form:

Lessig backs Kagan.

Lessig backs the Pirate Party (Sweden) and shares many of the same stated policy goals.

Kagan was significantly involved in Lessig getting hired by Harvard.

Harvard’s Berkman Center is (essentially) the home of Creative Commons now (btw, note how they call CC a “public charity”!!!

Harvard’s Berkman Center DEFENDED Joel Tenenbaum in his infringement case (where he brazenly stole huge volumes of music).

Can we conclude that Kagan backs many of these same policy goals?

Lessig in the ASMP video (about 19:46 in) and elsewhere, in collaboration with his CC minions, makes a very bold claim that the White House uses CC Attribution licenses for content on the Whitehouse.gov site. He says it quickly and implies that ALL content on that site is under that license.

In fact, there are two lies in that. First, it is not all content. Content created by the US government is in the public domain at creation. The US government cannot hold copyrights for its own creations (it can hold © otherwise though, like those assigned to it, however–see previous link). Lessig doesn’t even mention that because it weakens the impact of what he is saying.

In fact, if the government was going to mandate a change in how it handled copyright on that site, why didn’t it say “all content submitted must be released by its copyright holder into the public domain” or similar? Why have a CC license at all? It serves no purpose that I can fathom.

The second lie is that all third-party content is under a CC-Attribution license on that site now. That too is untrue.

Here is what you will find on CC’s site: [whitehouse.gov] included a clause in its copyright policy mandating that all 3rd party content [link in original, bold added by me] on the site be released under our Attribution [link removed by me] license.

Mandating… that’s an important word. According to Merriam-Webster’s online dictionary, it means “to make mandatory.” But, if you read the content of that Copyright info page linked to by CC above, here is what you will find (all links removed by me):

Except where otherwise noted, third-party content on this site is licensed under a Creative Commons Attribution 3.0 License. Visitors to this website agree to grant a non-exclusive, irrevocable, royalty-free license to the rest of the world for their submissions to Whitehouse.gov under the Creative Commons Attribution 3.0 License.

“Except where otherwise noted” means that all the third-party content is NOT CC after all. It’s not a mandate, it is a default. And it is playing on the ignorance of the general public because in the next sentence it says that “Visitors…agree…for their submissions.” In other words, if you offer something up, yeah, they want you to give it away. But clearly they are negotiating with other content providers.

That’s not a mandate. That’s screwing the ignorant just like so many sites do (for example, if you submit content to CNN via their iReport system you are essentially giving it away too, but they will pay for and license content from others).

Moreover, it is another case of Lessig playing fast and loose with the truth.

Matt on ASMP’s ProAdvice Forum posted this link to a NYTimes article, worried about the photographer ramifications. PlaceLocal is an online ad creator system that gathers elements and combines them into a cheap ad. Some of the elements it gathers are, apparently, photos.

Sure, it looks bad on its surface, but it is always a good idea to gather more data before jumping to conclusions. So, I contacted the company and asked them about their policies and, specifically, where they were getting their images. Since the write-up in the Times, I didn’t expect a rapid response, but I was wrong.

Victor Wong, Chief Exec of PaperG (creators of the PlaceLocal system), sent me an email in response, less than 2 hours after my inquiry. In it he made clear that they are “definitely respectful of right holders, and make best efforts to make sure the elements used to create advertisements follow comply with copyright regulations.” Good!

He went further to list some of their requirements and processes, which include requiring requiring their customers certify that they have the rights to use any images they provide in the ads. The company itself gets images from the customers, the customers’ websites (which are then vetted to make sure the rights are ok), and PaperG has its own stock image library.

That last bit is important. I think we will be seeing more of that–self-contained image libraries.

Anyway, on the surface, at least, it is clear they are aware of the issues of copyright and, unless Victor is blowing smoke, they aren’t stealing images. I take it as a good sign that Mr. Wong responded personally to the issue.

Now, of course there is the potential for images to be used without permission–that is, an advertiser (Bob’s Tires, for example) could tell this company that he owns the photos he had taken by PhotoSue when, in fact, he doesn’t, but that is no different than the usual concerns we always have. It is important to educate our local and smaller clients most of all, because they are the least likely to know and understand how copyright works. Part of that needs to be an explanation of how the images can’t be released on the internet (unless the client purchases those rights) because of the probability of theft later by others.

Got images on Flickr or a blog or, hell, anywhere? You’re probably a victim: http://bit.ly/dmV5C1 Billions of images stolen and offered for FREE distribution.

Make sure to read the comments on that blog for more info.

The evil site down for now, but keep looking! I’m sure if/when they relaunch there will still be plenty of illegal stuff there.

My friend Paul tweeted a link to this article about unleashing a lie. Little did I know it would explain the lunacy of the Lessigites, Patryans, and their ilk, especially those poor, misguided creatives who actually think that CC or “free” can be good for their businesses and art.

Short form? A subtle lie gets great traction and is almost impossible to correct once spread.

Relatedly, why apparently reasonable people reject the truth is discussed in this article.

I wanted to briefly point out how Lessig manipulated the end of his argument in his presentation. He points out that “the other side” wants to eliminate copyright and then has the balls to ask ASMP & photographers to help him fight against this.

Does he mention that these anti-copyrightists are people mostly of his own creation? How his presentations and writings for years have encouraged and egged on exactly these sentiments? And that he still encourages these people when he talks about “democratizing” culture? (democratizing = free access to all, according to him, even though that is a bastardization of the concept). No, of course not.

Instead, he takes no responsibility for shifting the cultural attitudes about copyright (and IP protections in general) which has made the idea of having to pay for IP somehow a violation of a natural person’s rights (at least in the minds of an entire generation), but then he flips the table so that he is somehow an advocate FOR IP protection. And then he feigns pathos in asking for our help.

The man has an ego beyond belief. Besides the fact that he started this whole mess just because he cannot admit he was wrong (see previous posts) now he is positioning himself to ASMP and the creative community as the potential savior for IP protection. Nice spin. Here, I have set your house on fire and only I can save you from being engulfed in the flames–you can thank me later.

I seem to remember a history lesson like that…

I had been not thrilled by the Kagan nomination to SCOTUS, but I was having a hard time knowing why. It was like I had little bits of data floating in my grey matter, her name connected to something I’d heard in the news here and there, but nothing was coming together. Not surprising since, frankly, the Lessig thing has taken first cranial position these days.

Then yesterday lawyer Chris Castle pointed me to an article in the Hollywood Reporter which settled the bits. I wasn’t crazy, there are reasons for concern. That whole Harvard cadre is something to wonder about. I certainly have issues with anyone who would think Tenenbaum was even remotely right in what he did and who would manipulate the system to help his defense. And there seems to be a general problem with the Harvard Law folks (recently, at least) and how things work in the real world (I’ve been saying that about Lessig, of course, and see more generally this post by Mr. Castle).

Remember, photographers, that your profession is closely connected to the entertainment industry–music, film, etc., all share many of the same fundamental legal concerns. So don’t think for a second that this doesn’t apply to you just because it doesn’t say “photography” specifically.

Anyway, maybe she’ll do a great job, maybe she’ll sell out creatives. Hard call. Once someone gets on the Court, often what s/he wrote or said before bears little on what s/he writes and decides after.

ASMP has posted the videos from its Copyright Symposium and, frankly, I’m more concerned than ever.

Again, I want to reiterate that I believe firmly that ASMP has the absolute best intentions in exploring copyright and the digital economy. I also believe that we need to consider new systems to pricing and structuring licenses for this new economy. There is much good in what ASMP means to do. They are well-meaning, good people– those ASMP folk. Many are friends.

It is damn hard to have to tell friends that you think they are making a mistake. A huge mistake. But this symposium served to promote an agenda which is contrary to the stated mission of the organization, particularly by giving Lessig not only a forum, but deference in questioning. In other words, he was treated as an honored guest worthy of great respect rather than the fundamental cause of much of photographers’ misery.

Let’s start with Lessig’s Sousa quote and comparison. Sousa was talking about how people sang songs at their homes, performing before friends, sharing the music. Lessig talks about this as the pro celebrating the amateur and an example of the read/write culture where the consumer is also a creator. He says that this stopped in the 20th century and claims that in the 20th, we became a read-only culture.

I call bullshit on this contention. On two levels. First off, Sousa was complaining about getting ripped off and arguing for a strengthening of copyright protections (Wu, Tim, Copyright’s Communications Policy. Michigan Law Review, Vol. 103, p. 278, November 2004.). The man was a charter member of ASCAP and was all about the creator being justly compensated.

Secondly, saying the 20th century was somehow stilted creatively, that the consumer did not also create, is patently untrue. It was done, but it was done within the bounds of copyright law (mostly).

My brothers and I, in the early 1970s when I was a very little girl, made home movies, but not of the family trips or the like. Our movies were mostly sci-fil, often recreations of Lost in Space episodes. My brother John also created a series of board games based on Star Trek (the original series) that we and our friends played. My friends and I replayed movie scenes when we played make believe or even with our Barbies®. We sang songs for our friends, just like in Sousa’s time.

When I was in undergrad, a friend and I brazenly re-wrote The Sound of Music songs. We turned the classic family film (which we adore, btw) into an R-rated parody, with new titles like “You’re my 16th (Going on 17th)” and “My Favorite Flings” and lyrics to match.

And we weren’t alone. As an adult I’ve talked with friends about what they did growing up and it was all pretty similar. Maybe not as geeky (or risqué), but the general idea of recreating things seen at the movies or making movies of friends dancing to records or similar, well, just about everyone did something like that.

In other words, we were remixing culture way before anyone had coined the word.

All of the stuff we see on YouTube now is very much like what we did then. And like what our parents did before that. And all this during the century Lessig calls “read-only”? Please… we were just as creative (it may be argued more so, since we made more up without seeing similar stuff!).

So what is the difference? The distributive channels. When my brother made his sci-fi home movies (he actually would scratch phaser fire frame by frame onto the film stock!) the only people who saw them were us– the family and friends. There was no duplication and distribution, and no one made any money off any of it. It was private, personal use only. Fair use.

Now, the same creative acts (essentially) are posted on distribution channels like YouTube and reproduced for the world.

Lessig would have us equate the distributive channels while dismissing the truly equivalent which is the art created. He is saying creativity in the 20th century was suppressed because of copyright (read-only culture, remember) and has been “freed” in the 21st century by people ignoring copyright laws. But at the same time he equates distribution on a for-profit system like YouTube to singing in a back yard.

In fact, in this so-called “suppressive” 20th century with its “onerous” IP laws we have arguably seen more invention and creativity than at any other time in human history (See Gilbert; and note how many of the items and people in this poll are from the 20th c.; and this timeline of inventions). Almost the entire history of cinema is contained in the 20th century (the Lumière brothers invented cinema in the 1890s). Art has transformed and explored more, as has theatre and literature. It is simply untrue to describe the 20th century, with its expansion of copyright (and patent, etc.) protections as suppressing.

No, but Lessig’s argument hinges on that. It also hinges on us not looking back in history just a few years to see what he actually was calling for in his push for the Free Culture Movement. He didn’t want to make things fair and to enable creatives to make a living off their art. No, he wanted essentially all creativity to be free (or of minimal value and for a very brief time). He used to advocate for a 10 year copyright limit (shorter than the original 14-year term he now cites in his presentations) and he has repeatedly been quoted as saying that most IP doesn’t have any value beyond even a year (when most books go out of print).

Remember, the original CC licenses were all about free access. Oh, and BTW, they were unneeded since anyone could put her/his own work into the public domain or license it however s/he chose, without CC. CC licenses aren’t even a simplification! The actual, real licenses are just as complex as any–here is the actual “attribution only” license language.

Anyway, Lessig also doesn’t want us to look behind the curtain to see just who really benefits financially from the Free Culture Movement. See, Lessig’s CC has gotten money from Google’s Brin and has worked out deals with both Google (who owns YouTube) and Yahoo! (who owns Flickr). And, arguably, those two companies have become huge because of the Free Culture Movement and CC’s original “culture wants to be free” attitude. Think about it, those two companies makes huge amounts of money selling advertising because huge numbers of people go to those sites. Why do people go there? Because of the free content.

Google doesn’t sow, but man, does it reap! And the people who create are the field workers, at best share-croppers but they usually don’t get anything for their efforts.

Speaking of money, does Lessig ever divulge his own corporate holdings? How much stock does he have in any of the companies that benefit from his work, if he owns any at all?

As was said in All the President’s Men: follow the money.

Again, I want to say that I do not think the copyright system is perfect. Of course it has flaws and some of them are serious. And, as I said above, photographers must consider new ways of marketing their licenses. But Lessig’s beautifully spun but factually inaccurate read of the value of IP and the cultural impact of copyright is not the way to go. We have to look past the great showman with such an ego as to advocate a change of our constitution rather than admit he was wrong. Quoting an article from The Nation:

Faced with implacable resistance to copyright reform from big industry groups, Lessig tried a variety of tactical maneuvers. In 1999 he challenged the Bono Act, taking the case all the way to the Supreme Court. Though his friends and colleagues advised him it was unwinnable, Lessig thought the underlying principle so clear, and the Constitution’s language about “limited” copyright terms so plain, that he would prevail. But he managed to win only two dissenting votes, from Justices Stevens and Breyer. “He had a terrible reaction to losing the…case,” recalls Richard Posner, a seventh circuit judge Lessig had once clerked for. “I told him truthfully…nobody could have won that case. That case was a clear loser. He couldn’t accept that. He was terribly upset about that loss.”

Limewire loses. This is a big deal because they “induced” infringement and essentially thumbed their noses at mitigation as required post-Grokster, etc. Woot!

Okay… lots of people are commenting and I noticed that NONE of them know who I am or what I do or have even bothered to explore what I am advocating. They think I know nothing about CC and the Free Culture movement.

Here’s the deal with CC: it was never needed. Creatives have ALWAYS had the ability to put their work out there in whatever manner they wanted. A creative could put his/her work into the public domain without CC. Or s/he could license the work out however s/he chose, including for free. Sure, CC got the populace talking about licenses, but only in the context of free ones. And all that “free” drove down the value of the creative products being created, across the board.

The problem with CC is that it shifted the cultural mindset from “art is the property of the artist to exploit/offer as s/he sees fit so that s/he can make a living being an artist” to “art is for everyone and is free and anyone who doesn’t share is against culture and growth.” Because people now think, overwhelmingly, that if something is on the internet it is free to take, billions of dollars of revenue, to copyright holders large and small, has been lost to them (the © holders). This means that people who used to get paid to create (art, music, etc.) now can’t make a living.

We’ve lost journalists and other writers, photographers and illustrators, etc. And our culture is suffering for it. One example– journalism. With hardly any real journalists left, we get “news” that is not fact-checked or sourced correctly. Most of it is crap– poorly written and unresearched. Those who are left are getting paid less and less. We have thus lost the biggest check and balance to power in our society — because of the “free culture.”

In advertising, we’re losing writers and art directors because companies are “crowdsourcing” their ads more and more now. The companies aren’t idiots: it’s cheaper to have people submit ads (signing over all the rights to the work, btw, usually for free) than to have professionals create good and effective work. Quantity over quality. The quality of the resulting ads is worse and those people, those creatives, are now out of work. Photographers, videographers, editors, gaffers, talent, etc., all who were hired by those creative professionals to create or be in those ads now aren’t hired. More people go on the dole. This contributes to the downward pressure on the economy.

For someone who has a job (let’s say as an accountant), making a video for Doritos is a bit of fun. But the impact is that it puts more and more people out of work. How would the accountant like it if the Photographer came in and did the books for one of the accountant’s big clients for free?

Because of CC and the Free Culture Movement, artists and other creatives are driven out of business. Their work is devalued. Those people whose vocation in life is to bring life and beauty and thought to our culture and whose importance was specifically protected by our Constitution are on the brink of extinction. For what?