February 26, 2005  ·  Lessig

Bill Thompson calls himself a critical friend of Creative Commons, which in my world, is the only kind of friend one wants. But I can’t escape thinking we’re having an argument when there’s nothing to argue about (again, a common feature of the very best of friends).

Bill believes in moral rights. He thinks Creative Commons doesn’t. Or more precisely, he thinks Creative Commons the collective, or me the individual, doesn’t “care” or “understand” moral rights. Instead, he thinks we think copyright “is simply an economic matter.” That is “US hegemony,” Bill insists (please put that word on the list of eliminated words when the revolution comes), which neither he, nor anyone, should “accept.”

As someone who has been strongly criticized for strongly criticizing the US (even on foreign soil no less!) I’m all for eliminating US “hegemony.” But there’s just a simple misunderstanding here that we (CC) needs to do a better job addressing.

Creative Commons offers free copyright licenses to artists and creators. The purpose of the license is to enable the artist or creator to mark his or her copyrighted work with the freedom he or she intends the work to carry. Those “freedoms” are the exclusive rights that copyright grants the copyright holder which the law permits the copyright holder to waive. The design of the system is to be automatic. No contract, or meeting of the minds, is intended. It is simply a license that says “if you use my copyrighted work in ways that would otherwise infringe my exclusive rights, I won’t sue you if you have abided by this license.” (The law makes everything ugly, but anyway, that’s what it does.)

Moral rights — which are not “European” but in fact common to the US/UK tradition and the European tradition (in our tradition, they are called “author’s rights,” and the great text on this is Lyman Ray Patterson’s Copyright in Historical Perspective) — don’t admit of such easy manipulation. In many jurisdictions that protect moral rights, you can’t just automatically give away the moral right, without knowing something about how, or in what context, the work is to be used. For those jurisdictions then, a Creative Commons-like mechanism just wouldn’t work. Such a mechanism couldn’t succeed, in other words, in effecting an agreement about such moral rights. Creative Commons is a hammer. This is glass blowing.

So our response to these jurisdictions is simple: we don’t purport to affect the moral rights at all. They are left as they would be, because our tool can’t effectively do anything about them. Thus, it is not because we don’t “understand” moral rights that we don’t do anything about them. It is instead because we precisely understand that our tool, given the law, can’t do anything about them.

Thus, to say that we think there’s only one tool in the area of copyright and moral rights is, I think, to have it backwards. Those who would criticize Creative Commons for not “solving” the “moral rights problem” are the ones who think there is only one tool. We’re the first to admit that we have a hammer, and you need a glass blower, so please don’t consider our tool to be the tool you need if negotiating, or respecting, or understanding, moral rights is your objective.

Now this isn’t the case in every jurisdiction that protects moral rights. The contours of the law are different in different countries. Thus in some countries, we have been able to craft the license to give the author the power to grant both copyrights and moral rights. But in strong moral rights jurisdictions, that simple is not possible using the device we have crafted.

So again, I don’t see how this is us “dismissing” moral rights. (Does aspirin dismiss cancer just because it can’t cure it?) And I don’t see how narrowing our focus means we don’t “care” about moral rights, if indeed you believe that a tool such as ours can’t, in some jurisdictions at least, do anything about moral rights.

And finally, I don’t see where I’ve ever said anything against moral rights. No doubt, they restrict the freedom of authors — at least those authors who would like a simple way to alienate the rights. So too does the ban on slavery restrict the freedom of workers — but you wouldn’t think I support slavery just because I remark this obvious fact, would you? Indeed, in many contexts where I’ve been asked, I’ve said that the moral rights tradition has actually proven to be an important check on the power of publishers — something we’ve forgotten in our own tradition. But none of that is to criticize, or to advise that countries change their law.

So yes, Creative Commons will not, at least in some jurisdictions, deal with moral rights. Nor will it cure cancer or end poverty. But if it is unclear to anyone, let’s be clear about it: We don’t therefore not “care” about cancer or poverty. We don’t therefore “dismiss” those problems. We just understand — as everyone should — that the tools we’re spreading can only do so much.

Finally, about Bill’s claim that I think that copyright, as distinct from moral rights, “is simply an economic matter.” I’m sure Bill got this from one of our conversations. He’s a careful journalist (unlike the journalists he associates with). But I must not have made my point clearly, because the sense in which he offers the statement is different from what I mean. I do believe that “copyright” is “simply an economic matter” — meaning that the rights originally protected by copyright were protected for economic reasons. That again does not deny that there are other rights — read Patterson to see the rich set of “author rights” that existed at the time of our Founding. I wouldn’t say that were simply “an economic matter.”

But I do believe that copyright was about economics. And I continue to believe copyright is important, primarily for economic reasons. But that again is precisely why we wanted to create a simpler copyright, for the many many creators who either are not creating for economic ends, or who believe that control over their creativity is not a necessary means to their economic success.

Free law is the tool we created. A tool to enable people to achieve something at the legal layer, just as iChat enables people to achieve something at the application layer. But as iChat isn’t for everyone, or at least, for everyone for any end, neither is CC. I would not advise Britney to put her music under a CC license. I would advise Gilberto Gil to. Tell me what you’re trying to do, and I’ll tell you whether we’ve got a tool for you. (That’s of course, rhetorical. Please don’t tell me. There are briefs, and filings, and classes, and family that demand the time that answering questions would take.)

  • http://www.glamdring.org Tom Albrecht

    It’s probably also important to note that to many people, economics has a moral basis. I oppose collective ownership of propery (socialism) because I believe that private property is a moral right (“Thou shalt not steal” – Exodus 20:15).

    So, even if one does say that intellectual property is exclusively an economic issue, this does not necessarily mean that one does not believe it’s a moral issue.

  • Rob Rickner

    So many critics of open source and creative commons licenses miss a crucial point. The author chooses to distribute his work under the license. These licenses empower individuals to control how their work is presented and used. Whatever your definition of moral rights (and there are more than a few), the free law movement does not impose itself on the market by force. It lets authors express themselves.

    Economics is only a factor on a large scale, individuals who don’t want to sell their work (bloggers, for example), will always be able to put their work up someplace. CC simply avoids the potent disincentive created by the modern legal definition of the public domain. If you place your work in the public domain, someone else can repackage it, change it, and sell it. Leaving your work completely unrestricted is not very appealing to an author who wants to distribute his work without monetary compensation. If you don’t want to profit from the derivatives yourself, why would you let someone else do it?

    The larger economic critique is that people choose to reject the default assumption that everyone wants to profit from their creative output. Therefore, a copyright system that assumes everyone wants rigid intellectual property rights, is absurd. Too many people confuse this larger critique with wanting to trample on the rights of individual artists and label CC as anti-artist.

  • blaze

    I think you (or Bill or whoever) is confusing the issue and this is all a red herring. I’ve never read anything you’ve written about creative commons that have ignored moral rights.

    (In fact, you have written the opposite. Further, I’m not entirely sure what the definition of ‘moral rights’ is. Can someone provide one?)

    It is your various discussions about strong copyright which have been the problem. You are the guy who believes because his hammer is so cool, no one should ever need a mallet.

  • http://sethf.com/ Seth Finkelstein

    I think the heart of the issue is that “moral rights” is how people naively think about copyright, in a vague, abstract sense, rather than the overwhelming economic bargain system. So the issue is a kind of proxy for the mismatch between
    people’s naive abstract concept of copyright law, and its reality.

  • Rob Rickner

    To: Seth Finkelstein.

    In many discussions that imply that economic interests are the only concerns in copyright policy, people ignore the elephant in the room – Authors and other creators DESERVE and have EARNED a right to control their works because of the hard work they put into them (Locke) and because the works are an expression of themselves and their personhood (Kant and Hegel).

    I for one, am not ready to completely dismiss every non-economic rationale for copyright.

    And remember – Locke didn’t approve of unlimited personal property. It has limits. You can’t harm someone else through use of your property or simply waste your property. In the 90s people like Ray Patterson and Wendy Gordon took aim at the expanding scope of copyright using some of these limits present in property rights. I’d like to see a little of that come back. By sticking to an economic critique it gives the impression that CC supporters (like me) aren’t interested artists rights.

    I guess this is the big question – how many people are willing to dismiss all non-economic rationales for copyright?

  • Josh Stratton

    I’m prepared to. As I see it copyright is a one-sided issue: the law should be whatever produces the most original and derivative works, in the public domain as rapidly as possible, and as unencumbered by exclusivity as possible prior to that, if at all.

    I don’t think that authors deserve anything. Certainly labor is not inherently deserving of anything; if I labored at creating a beautiful front yard, I’d be out of line and out of luck if I wanted to charge passers-by for appreciating it. Likewise, I don’t care about their personality.

    Instead I’m purely a utilitarian on this — I’m willing to sacrifice to some extent my freedom of speech to do whatever I want with other peoples’ works only if I benefit more by doing so than I would if I didn’t, and then only to the extent that I still come out on top. This may incidentally benefit artists, but I don’t really care if it does or not. After all, I’m not interested in artists; I’m interested in the art. It’s a bit like how a dairyman has to put up with cows to get milk, or a beekeeper has to put up with bees to get honey. If they weren’t yielding some desirable product, they wouldn’t be bothered with.

    The only question that remains for me is determining just what sorts of laws would be the most socially beneficial in the ways discussed in my first paragraph.

    I suppose though that I should mention that I’m not a big CC supporter. It’s okay, but I’d prefer to relax the laws instead, reducing the need for special licensing in many cases. Licensing to the public at large, via adhesive licenses, strikes me as dangerous to public conceptions of the underlying law. For something like EULAs, we probably ought to ban them. CC, GPL, etc. go beyond trying to turn what ought to be a sale into something else, and so aren’t offensive, but I can’t say I think they’re a panacea or anything.

  • http://sethf.com/infothought/blog/ Seth Finkelstein

    “Authors and other creators DESERVE and have EARNED a right to control their works”.

    You have proven my point. Discussions are often driven by moralizing statements about concepts of what copyright SHOULD BE. But these concepts may be only tenuously connected to what it IS.

    To be a bit provocative, I’m willing to dismiss all non-economic rationales for copyright, on the practical basis that they occupy virtually zero of the real-world problem space. They are fine if you’re writing a law review article. But, in my view, only a distraction to trying to solve the incredibly hard dilemma facing the evolution of technology.

    Yes, this is less politic position. I’m not good at politics 1/2 :-).

  • http://locut.us/~ian/blog Ian Clarke

    I haven’t had much respect for Bill Thompson since he criticised anti-censorship technologies on the basis that they might do something an oppressive government didn’t like, and that it was a bad idea to provoke them.

    Clearly Thompson wishes that more people were unwilling to challenge oppression, lest it provoke their oppressors, what a wonderful world that would be.

  • Joseph Pietro Riolo

    Professor Lessig,

    I don’t think that you are correct about moral rights
    being common to the United States tradition. I think
    that you continue this “myth” to appease those who
    strongly believe in moral rights and/or to support
    your belief in moral rights or author’s rights.

    Nowhere in the history of the United States do we
    see moral rights (or author’s rights) as being
    treated separately from other rights as given by
    copyright. It is only Europe that does so.

    Moreover, what is unsaid from your post is how long
    do you think the moral rights (or author’s rights)
    should last? Do you support France’s perpetual
    moral rights? Do you treat moral rights or author’s
    rights as a form of property rights or non-property
    rights?

    I have not seen Lyman Ray Patterson’s book. I don’t
    intend to purchase a copy anytime soon. So, I am
    at a big disadvantage to those who has access to
    it.

    To blaze,

    Try googling on moral rights. Generally speaking,
    they are the right to maintain the integrity in a
    work and the right to attribution for the work.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions in this
    comment in the public domain.

  • Concerned Creator (CC)

    If Creative Commons is a tool, it is a double-edged sword. Has anyone ever wondered why Jack Valenti of the MPAA and officials at the RIAA are coming out in favour of the Creative Commons? Because implied is the fact that you cannot be creative with something not licensed under the Creative Commons. Unbeknowst to Lessig, he may serve as the outsourcing arm for the copyright of conglomerate media.

  • http://www.52z.com 下载

    I like the idear of a grassroots scholarship fund, but it might be a little early for DFA to take it on. After all, they are restructuring and the current focuses are on grassroots participation in government and social security reform.

    I would be concerned that raising funds for this specific project would spread DFA too thin right now.

  • http://www.digitalartauction.com Crosbie Fitch

    Moral rights are the right to truth, the right to assert the facts, i.e. who the author was, and precisely what works they are an author of, and what works they aren’t.
    A moral right does not grant an author the right to prevent anyone creating a derivative, it grants an author the right to prevent himself from being misattributed as the author of the derivative.

    Copyright is not a ‘right’ in the normal sense of the word. It is merely an economic incentive granted to authors to persuade them to deliver art into the public domain.

  • Joseph Pietro Riolo

    To Crosbie Fitch,

    The details of moral rights vary greatly from one
    country to other country. I don’t know all the
    details but some countries define moral rights
    to include the right to prevent misattribution.

    In some countries, moral rights also include the
    right to prevent anyone from making a derivative
    work if the author of the original work thinks
    that the derivative work will harm or violate
    the integrity in the original work. As a totally
    fictitious example, if a play writer makes a
    derivative work based on Romeo and Juliet play.
    This time, the derivative work is about two
    lesbians or gays. If Shakespeare were alive
    today or if the descendants of Shakespeare are
    around here to exercise Shakespeare’s moral
    rights, they would have prevent the play writer
    from making a derivative work. In a way, moral
    rights can be seen as a tool for censorship.
    As a real example of tensions between authors
    and artists and users, authors and artists
    complained that CleanFlick violates the
    integrity in their works.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions in this
    comment in the public domain.

  • Rob Rickner

    “You have proven my point. Discussions are often driven by moralizing statements about concepts of what copyright SHOULD BE. But these concepts may be only tenuously connected to what it IS.”

    Well Seth, you’ve missed the boat here. Read the legislative history of the CTEA. Natural Law based arguements are in the driver’s seat. I do think they get too much emphasis and that economic and development based rationales are being ignored by law makers. However, you are the one arguing about how you think copyright SHOULD BE. Copyright IS based on Locke rooted property rights doctrine.

    So, there are two options. You can try and show why natural/moral rights considerations should be ignored completely or you can show the limits of these rationales. I suggest the later because trying to convince lawmakers that a novelist does not deserve to own at least some aspects of his novel and we should only reward him if it makes economic sense to do so. Frankly, good luck. Property rights have a long history in this country that extends beyond simple economic rationale (although property rights are remarkably efficient as well). A better road is to show the limits of personal ownership – Locke’s ‘no harm’ proviso, for example. In combination with 1st amendment arguments, this approach led to the expantion of fair use as an intrument for parody and criticism. It works. Denying all natural rights to intellectual property of any kind is just going to alienate people and give big business lobbyists an angle to dismiss the valid economic critiques of the copyright system.

    “But, in my view, only a distraction to trying to solve the incredibly hard dilemma facing the evolution of technology.”

    Explain what you mean here. Are you talking about the evolution of technology to reproduce information or that intellectual property blocks technology research.

  • Andrew Boysen

    To Josh Stratton:
    What do you propose in place of an EULA to encourage software development? Open source is great, and works for many purposes, but some people will not create without economic incentive. Take Oracle Corporation, my employer (and a huge supporter of open source, which is not at all mutually exclusive of EULAs), do you really think they could afford to spend hundreds of millions of dollars on R&D with out the ability to license our software to others to use? Sure, there are many restrictions in our end user agreement, but there are also many protections – for example, if you are sued for any copyrighted material that someone claims is in the software, you are fully indemnified – and that isn’t a cheap protection (just ask those being sued by SCO). Creative Commons is a license that works for some purposes, but there is no reason to get rid of tools for all other purposes.

    In case you were referring to EULAs that were’t negotiable (ie – clickwrap agreements) – those have their place as well. For example, ITunes is freely available for download, but they would still like to protect their rights in ways that a CC license doesn’t cover. If they were forced to negotiate with everyone who downloaded their software, they would just decide not to give it away at all.

    Note: my comments are not official statements from Oracle, nor do the constitute an offer from Oracle.

  • Josh Stratton

    Rob:
    I’m sorry, but copyright is a utilitarian doctrine. It has nothing to do with Locke at all. Indeed, Jefferson, who while absent at the time, had some influence, didn’t even believe in Locke with regards to real property (which would explain why he decided to replace ‘property’ with ‘pursuit of happiness’ in the Declaration). The long and short of copyright is that the public willingly gives up some of its rights temporarily in order to get a benefit that outweighs what they’ve lost.

    Andrew:
    I propose nothing to replace EULAs with regards to ordinary, off the shelf software. I see no purpose in having EULAs, and numerous negative effects that stem from them.

    Software is not distinguishable from books with regards to this discussion. Copies of software can be sold to others without requiring that the source be disclosed (which I think it should have to be, but that’s part of my thoughts on deposit, which is a whole different thing), and without having any impact on the copyright, which as we know from the law, is not affected by sales of any copy.

    Just as the purchaser of a book can use the book as a natural consequence of owning that copy, so too could the purchaser of a program use it as a natural consequence of owning that copy. Copyright law currently provides for the owner of a lawfully made copy of software to resell it (naturally, without keeping anything), make copies necessary in order to use it (e.g. from CD to HD to RAM), and make as many backups as he likes (again, only so long as he owns it).

    Warranties and such can be handled without EULAs, as we see in a panoply of consumer goods.

    Unusual cases such as GPL, CC, perhaps even site licenses, might make sense with licensure, but since there’s nothing significantly different about buying a copy of a program at CompUSA and buying a copy of a novel at Borders, I see no reason for EULAs. But EULAs disrupt public expectations of ownership, increase transaction costs, are not really utilized by plaintiffs in breech actions when they could just as easily bring an infringement suit anyway, attempt to defeat the public policies in the laws and attempt to defeat the public domain, and are of dubious validity. Certainly extending EULAs to clothing, food, gas, etc. would be nightmarish. Why allow that to begin?

    In the general case, norms of law and public expectations should control. Licensing is only useful to cover for special cases.

  • http://www.tekstadventure.nl/branko/blog/ Branko Collin

    some people will not create without economic incentive

    So what? Copyright is not intended to make everyone happy.

  • Rob Rickner

    “I’m sorry, but copyright is a utilitarian doctrine. It has nothing to do with Locke at all.”

    Josh: You are dead wrong. Locke’s labor theory has been a consideration in copyright law since the beggining (both in america and england). Go ahead, read the legislative history of the CTEA. They constantly jump between utilitarian and natural rights style justifications for copyright. Where did you ever get this idea that Locke had nothing to do with intellectual property? It was practically the first thing we studied in my copyright law class. It isn’t just law review articles. It shows up in cases and the legislative histories of various copyright laws. Not to mention the writings of Noah Webster – godfather of american copyright. If you want to pretend that copyright is purely utilitarian – fine – but you’d be deluding yourself. I doubt that you’d settle for me simply telling you. I have an example – from the report of the congressional committee on the most recent (1976) revision of the copyright law –

    “Although the primary purpose of the copyright law is to foster the creation and dissemination of intellectual works for the public welfare, it also has an importand secondary purpose: To give authors the reward due them for their contribution to society.”

    Now, doesn’t that sound like congress thought that authors DESERVE and have EARNED a reward for their labor? It comes from Locke. I admit, it is a long way from the english countryside, but Locke is alive and well in copyright law. You can punch holes in the natural rights justification for copyright all you want, but you cannot pretend that it never existed. Do not mistake the critique of the current system for the current system.

  • http://sethf.com/ Seth Finkelstein

    I have a follow-up now on my own blog, with new material from Bill Thompson:

    “[this Lessig post]‘s a useful clarification, and makes his (and, I would reckon, the Creative Commons) argument a lot clearer. It also makes me a lot happier with what they are doing.”

    Bill Thompson, Creative Commons, and “Moral Rights” in Copyright
    http://sethf.com/infothought/blog/archives/000775.html

  • Adrian Lopez

    Lawrence Lessig mentions that “moral rights” are not “European”, but the fact is that European “moral rights” give authors excessive control over their work. Once a work is no longer protected by copyright it should not be illegal to produce a derivative work that is considered harmful to the integrity of the original (to paraphrase Mr. Riolo).

    European law – and French law in particular – goes way too far in protecting an author’s presumed “moral rights”. I have no problem with being required to identify modified works as such, but to prohibit certain kinds of derivative works is nothing less than censorship. If an author wishes to prevent the “butchering” of his work he should sign a contract with those who are licensed to reproduce his copyrighted works. Once the copyright expires, however, the work should be considered “fair game”.

  • Matthew Rimmer

    With respect, it is a definite weakness of the Creative Commons movement that it fails to address moral rights. Bill Thompson is perhaps a bit blunt in his remarks – but nonetheless I think that he does identify a blind-spot.

    Lessig asserts: “Our response to these [moral rights] jurisdictions is simple: we don’t purport to affect the moral rights at all. They are left as they would be, because our tool can’t effectively do anything about them.” However, I would argue that contracts can and do affect moral rights.

    Take Australia, for instance. Contracts have been central to the protection of authorial attribution and integrity – before and after the introduction of moral rights.

    Prior to 2000, there was little substantive protection of moral rights. Thus authors and creators sought to rely upon contract law to protect their interest in proper attribution and integrity. The playwright David Williamson, for instance, had written into his contract a quasi right of integrity. The Indigenous dance collective Bangarra Dance Theatre relied upon agreements to help protect and respect the cultural integrity of the works that it was using and adapting.

    In 2000, the Australian Government passed the Copyright Amendment (Moral Rights) Act 2000 (Cth). It recognises the moral rights of attribution and integrity, and against false attribution. Consent can be granted by an author in respect of the use of works; but there was no wholesale waiver.

    The moral rights regime specifically seeks to use contract law in a number of circumstances. Authorial consent depends on contract. A test of reasonableness would take into account a range of factors, including, for instance, whether there was a contract of employment. In a special regime for film, screenwriters, directors, and producers can enter into co-authorship agreements in respect of the use of moral rights.

    Contracts, though, have an ambivalent relationship to the protection of moral rights. They can be used to enhance authorial control; they can also be used to diminish creative control.

    The Creative Commons movement seeks to maintain an air of neutrality on this topic. It really needs to engage more creatively with the moral rights of creators.

  • Josh Stratton

    Rob:
    It would be a mistake to rely on the statements of recent Congresses. Their members tend to be woefully misinformed on the subject, even assuming that they don’t have an agenda.

    I look more towards the long view. The Statute of Anne proclaimed itself to be “[a]n act for the encouragement of learning.” The Constitution, as well all know here, empowers Congress to grant copyrights “to promote the progress of science.”

    Jefferson and Madison had a little exchange on the subject in the 1780′s. Jefferson wrote:

    The saying there shall be no monopolies lessens the incitements to ingenuity, which is spurred on by the hope of a monopoly for a limited time, as of 14 years; but the benefit even of limited monopolies is too doubtful to be opposed to that of their general suppression.

    Madison replied:

    With regard to monopolies they are justly classified among the greatest nuisances in Government. But is it clear that as encouragements to literary works and ingenious discoveries, they are not too valuable to be wholly renounced?

    Jefferson was more interested in patents than copyrights, but the logic is identical for both, particularly in the US they share the same constitutional language. In his letter to Isaac McPherson, he wrote:

    It has been pretended by some, (and in England especially,) that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs. But while it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors. It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it, but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property. Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody. Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices.

    Considering the exclusive right to invention as given not of natural right, but for the benefit of society, I know well the difficulty of drawing a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not.

    (An interesting note is that he also bashes method patents elsewhere in that letter.)

    In Fox v. Doyal, the Supreme Court said that “copyright is the creature of the federal statute passed in the exercise of the power vested in the Congress. As this Court has repeatedly said, the Congress did not sanction an existing right, but created a new one. … The sole interest of the United States and the primary object in conferring the monopoly lie in the general benefits derived by the public from the labors of authors. … [T]he grant is made in furtherance of a governmental policy of the United States … the benefits which are deemed to accrue to the public….” The Court cited itself there in US v. Paramount, noting that “reward … is a secondary consideration”, which of course meshes perfectly with a utilitarian model in which authorial reward is merely the means to the ends of public benefit.

    To call Webster the father of American copyright law is repulsive. Webster was typical for an author; he was greedy, and wanted laws that would favor him at the expense of the public. I don’t greatly fault him for being greedy — public greed is what copyright law seeks to satiate, and authorial greed is how the public exploits authors into producing works. I just fault him for not staying in his place. He was basically the Jack Valenti of his day, and that’s not a good thing.

    Meanwhile in all of my basic IP classes, while we did think about the underlying policy rationales at the beginning, the class, and the books, ended up basically agreeing that Locke is bunk, that Hegel is bunk, and that you cannot reconcile them with the law traditionally or now, nor the concept of free speech. To pretend that they ever mattered would simply be an error.

  • http://lascribe.net/ chris waigl

    There is a lot of confusion in the comments what the European-style moral right is about. As far as I can tell, there are two aspects to it, both real, and not about what copyright law “should” be:

    In a copyright challenge before a court, the intent of whatever law deals with copyright issues in a particular country may be brought up. In the US, there will be talk about “encouraging artistic creation” (or some such), in France, e.g., the grounding will be sought in the “protection of a person’s authorship”.

    Second, in “moral right” countries, parts of what are commonly seen as copyright issues (in particular, making derivative works) fall under the “moral rights” clauses, i.e. unalienable rights authors can’t give away in a license even if they want to. But obviously, authors can enter contractual relationships that allow them.

    Does this mean that CC isn’t adapted for these countries? Not at all. The French CC “licenses”, for example, have been worded as contracts. And they start getting good press and have been adopted, for example, by ARTE Radio, a web offshoot of the French part of a French/German public TV channel.

    What I do think the CC movement needs to be careful about is to be aware that copyright/intellectual property rights/author’s rights are different in different countries, and to avoid adopting a language that is only compatible with the US/UK conception.

    The CC movement is largely supported by people who aren’t specialists in international comparative copyright law. So continental Europeans will legitimately ask themselves “is this applicable in my country?” — producing “licences” that wouldn’t hold up to court challenge can’t be in the interest of anyone.

    Beyond that, I think it it beyond the scope of CC to lobby for any particular conception of copyright (as long as there is a workable version of copyright law in a country in the first place).

    Obviously, opinions about which one is preferable may differ — and there will be CC supporters who defend either, if only because they are more familiar with how one of them works than with the other. And copyright activism goes far beyond CC — questions of copyright limitations, orphan works etc. need to be hashed out on a by-country (or sometimes bigger entity) basis.

  • Rob Rickner

    “It would be a mistake to rely on the statements of recent Congresses. Their members tend to be woefully misinformed on the subject, even assuming that they don’t have an agenda.”

    I agree. There are lots of reasons why we shouldn’t rely on Locke. Your comment proves my point. You can’t pretend that copyright IS a perfect ideal flowing from the best rationales. I wish it was. However, people still believe that authors deserve to control their work and it makes its way into all aspects of IP policy – see Lessig’s comments. The notion has a long tradition in copyright law.

    To quote Lyman Ray Patterson – Copyright in Historical Perspective –

    “The ideas – that copyright is a monopoly; that that copyright is primarily an author’s right; that the author has natural rights in his works which must be limited by statute – once stated by the courts, became a fixed part of the heritage of copyright. They were taken over in this country and used almost indiscriminately.”

    When the courts are going to reign in copyright, in a fair use case, for example, then they talk about utilitarianism. When they want to expand copyright, they make natural law style arguments.

    “Meanwhile in all of my basic IP classes, while we did think about the underlying policy rationales at the beginning, the class, and the books, ended up basically agreeing that Locke is bunk, that Hegel is bunk, and that you cannot reconcile them with the law traditionally or now, nor the concept of free speech. To pretend that they ever mattered would simply be an error.”

    They never mattered? Wow. They did matter – read Patterson’s book. They do matter. Natural law type arguments are dangerous, and logically problematic. However, you can’t pretend they don’t matter at all. Congress is talking about it, the courts talk about it – see Harper and Row.

    So, what exactly is copyright? I think it is a law. You can’t just dismiss congress as misinformed. I’m sorry, they make the laws. Even if they make bad laws based on bad policy, they still make laws. You have to attack the validity of their foundations. There are limits to the natural law and moral rights arguements. They are logically inconsistent with other policies, etc.

    If copyright is a magic ideal based only on utilitarian policies – then you are right. If copyright is a law, and for better of worse a comprimise of contrasting philosophies and views, then my position is more accurate.

    Finally – William Fisher sums up my point perfectly –

    “the analytical difficulties associated with the effort to apply the Lockean version of labor theory to intellectual property may well prove insurmountable, but there may be some non-Lockean way of capturing the popular intuition that the law should reward people for hard work. Only by continuing to discuss the possibility � and trying to bring some alternative variant of labor theory to bear on real cases � can we hope to make progress.”

    http://cyber.law.harvard.edu/people/tfisher/iptheory.pdf

    I’m not making an argument for unlimited copyright based on natural law. Just that – we need to address that popular intuition that the law should reward people for hard work. When I pointed to Locke and Hegel, I didn’t mean that I support those rationales for copyright, only that they are the source of those rationales.

    Furthermore, I don’t think that looking only at history is going to help us much. If the supreme court paid closer attention to history, Eldred v. Ashcroft would have come out a different way. A lot has changed and we need to make the same arguments Jefferson made all over again. Locke is bunk/Hegel is bunk just ain’t enough…

    Just for the record, I think that copyright is mostly utilitarian – however, utilitarianism has limits. I would not support a copyright scheme that initially created rights in someone other than the original author, even if it was marginally more efficient to do so. Original authorship is the primary expression of natural rights type arguments in copyright.

  • http://actusre.us chad

    It’s worth mentioning that, even if you think copyright is about more than mere economics, you have to speak in economic terms in order to be heard in contemporary copyright debates. Coasean (sp?) economics and other types of hyperanalytical reasoning are all the rage amongst policy wonks these days. It’s the current frame, if you will.

  • Rob Rickner

    “It’s worth mentioning that, even if you think copyright is about more than mere economics, you have to speak in economic terms in order to be heard in contemporary copyright debates.”

    But think – policy types talk economics and most of the public ignores them. If you ask most laymen, they believe artists have a right to their work. The congressmen they elect are not going to disagree (particularly after Jack Valenti pleads poverty in every hearing he can).

    The same members of the public are quite happy to download music off file sharing sites wihout a hint of remorse. The public is not know for its logical consistency.

    For better or worse, we are a democracy and as long as big business types can get away with saying that copyright critics want to take money away from artists – all those wonderful economic arguments fall away.

    Copyright gives authors enough (more than enough) – the contracts they sign take most of the money away.

    We can convince the public, but only after we beat the natural rights argument back into the kernal of original authorship where it belongs.

  • http://www.robmyers.org/ Rob Myers

    Further, I’m not entirely sure what the definition of ‘moral rights’ is. Can someone provide one?

    Under the Berne convention an author (artist, etc.) gets certain “moral” rights associated with a copyrighted work. Notably paternity (the right to be identified as the author) and integrity (the right to object to bad treatment of the work). There are various other rights you may or may not get in various jurisdictions, but those are the biggies. And these rights may or may not be inalienable. The US ignores them, the UK can waive them and Germany can’t get rid of them at all.

    Many people (and companies) want to use the moral right of integrity to selectively torpedo work derived under copyleft. Moral rights will be far more effective than trademarks or patents in doing so as you get them automatically, for free, like copyright and they are far vaguer.

    This is not to say that people shouldn’t be allowed to have moral rights. As an artist I can definitely see the value of moral rights: if my work is mangled for commercial publication I can object, for example. But if I want to make my work Free, that is more important than my artistic ego.

    Google for “berne ‘moral rights’ paternity integrity” for more.

    It is your various discussions about strong copyright which have been the problem.

    Name one. Then explain the problem.

  • http://www.groklaw.net PJ

    If I may please offer a real world example of my own: My articles on Groklaw are licensed under Creative Commons 2.0 Attribution, Noncommercial, unless otherwise marked. At the moment that would be 99.999 percent of them. The only exceptions are where I write something with someone else, or reprint an article I’ve written for money elsewhere that may not be available under CC.

    I chose that license because I wanted the ideas spread as widely as possible. I also chose the noncommercial because Groklaw is noncommercial, and if I was going to slave away for nothing, I saw no reason why someone else should make money on my labor. They should at least ask me and share any loot.

    I have made exceptions, from time to time, but I like to be asked.

    The license has worked well in most respects. Yesterday, for example, LinuxWorld took an article from Groklaw, published it without any attribution, so it looked like it was their article, Slashdot picked it up and also attributed it to LinuxWorld, and LinuxWorld will no doubt be telling their advertisers all about their fabulous numbers. I was able to correct the situation and get changes made, because they violated both terms of the CC license.

    But it is precisely in the area of moral rights that CC fails, and I wish someone would come up with a workaround. Here’s what I mean: there have been a couple of folks who dislike me or Groklaw who have deliberately set up mirrors of Groklaw’s articles with the publicly expressed intention of diverting readers from Groklaw. They surround the articles of mine with articles of their own all about how awful Groklaw is and/or my policies, blah blah. At the moment there isn’t a thing I can do to stop it. I hope one of you brainiacs will come up with a way to handle situations like that. It should never be that folks can use anyone’s work abusively on purpose to try to harm the author. That’s the kind of meanness that the law is born for. Surely there is a way to craft a license so that the author retains the right to selectively terminate the license, perhaps based on pre-stated violations, even in a noncommercial setting.

    In other words, could you please fine tune this thing? Thank you, if you are willing to think about it.

    And to the person who wrote that he doesn’t care if authors are unhappy, that copyright wasn’t designed to make everyone happy, may I please just say that authors won’t write anything for you to read or listen to, if you make them unhappy enough. There has to be some balance. Authorship isn’t like the rain. It doesn’t just happen no matter what you do.

    Obviously, I am not motivated by greed. I’ve written Groklaw as a labor of love daily since May of 2003. I’ve had many offers to “monetize” it, which I have declined, because I wanted to be effective and I saw no way to do it except to remain independent. But that doesn’t mean I want to be abused for my efforts or have my work used to work against my goals and my reasons for creating a body of work in the first place that millions of people read and enjoy.

    If you could tweak the license to cover badly motivated creeps, I’d really appreciate it. Some of the creeps, in my view, may be a new kind of astroturfer, and I do believe for that reason alone, it needs to be addressed.

    So, there you have it. A voice from the Creative Commons trenches.

  • http://www.xs4all.nl Branko Collin

    Rob R.: “The same members of the public are quite happy to download music off file sharing sites wihout a hint of remorse. The public is not know for its logical consistency.

    What is the logical inconsistency here?

  • http://www.tekstadventure.nl/branko/blog/ Branko Collin

    PJ: “And to the person

    That would be me.

    who wrote that he doesn’t care if authors are unhappy,

    But that’s not what I wrote.

    that copyright wasn’t designed to make everyone happy, may I please just say that authors won’t write anything for you to read or listen to, if you make them unhappy enough. There has to be some balance.

    Which is no different from what I am claiming. :-)

    Authorship isn’t like the rain. It doesn’t just happen no matter what you do.

    This may be true for individual authors (and for the individual works they create), but I am not sure it is true for the whole body of authors and for all works created.

    I am sure though that some types of works will either disappear or change drastically (think Hollywood movies) if there were no copyright, but the opposite is true too: some works are not what they could be because of our current copyright regime (think collage art).

  • Oliver

    I think the trick may be just to not get so excited about your new product that you fall into the trope hyperbole of “revolution.” The business establishment doesn’t want a revolution, and if you call it revolution, they’ll fight it. Instead you talk about having a really cool new product. You also point out that a new product can be radical and become hugely popular without being a “disruptive technology.” In principle at least, the popularity of a radical new technology can be “constructive.” Let’s say we have a “constructive technology.”

  • Joseph Pietro Riolo

    To PJ,

    In other words, you want to control over the way
    people are using your copyrighted works, including
    those who dislike you. That is very close to
    censorship. This is how moral rights can be used
    to censor other people. Even if you don’t provide
    Creative Commons license, people who don’t like you
    can use the Fair Use Doctrine to criticize your
    works. Moral rights would even prevent people
    from using the Fair Use Doctrine. Is this really
    what you want?

    From your post, it seems that you value your ego
    higher than the freedom of communication. That’s
    a pity.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions in this
    comment in the public domain.

  • Ryan

    Some random thoughts inspired by the previous comments:

    - Art IS created and authored for it’s own sake and will not dissappear if copyright were to.

    - For economic and practical reasons this creativity is stifled in the absence of monetary incentive, in that an author who can’t live of their creations must by definition starve to death or spend less time creating and more time earning a living.

    - To say you don’t care about the artist, only about the art is a useless and impossible separation. The art can not exist without the efforts of the artist and as such to care about the art necessarily includes caring about the artist.

    - This is the exact reason copyright exists. It is to provide enough economic care for the artist to make them feel artistic endeavour is worthwhile beyond the art for art’s sake threshhold.

    - This bargin is expressly to entice artists to give their work to society.

    - As an artist I want to be paid because if I’m not I have to keep doing my day job when I’d rather be creating.

    - As an artist I see and draw on my predecesors and even contempories daily. To have that work locked away by copyrights and moral rights indefinately is not beneficial to future creation in any way.

    - It seems wrong to “up the price” on existing creation by extending copyright duration. The price was already sufficient to have the work produced.

    - Copyright should really be a Commerically Signiciant Distribution right. ie, personal copying should be allowed (from an original the copier owns), Servicing mp3s to the world outside of the rights granted by the author shouldn’t be allowed. (That’s a different argument to whether the rights holder should actually distribute their own works in this way. ;) )

    - An author for the duration of the limited mononply they have been granted, should be able to alienate or enforce any of these rights including so called moral rights, to the extent that they don’t violate the principles of freedom of speech etc (even though as a law that doesn’t really exist outside the US). Eg, Groklaw should be able to chase LinuxWorld, but not stop someone else using a work to express dissatisfaction with Groklaw. Though there is probably a grey area here. Allowing Groklaw to make the restriction would be like a software vendor disallowing negative reviews of their product.

    - The only moral right (as I understand them from the above discussion) that seems appropriate to have exist in perpetuity is the right to acurate attribution.

  • http://www.groklaw.net pj

    To Joseph: Censorship isn’t the issue. If I wanted that, I’d stick to straight copyright. Then I’d have total control. I use the CC license precisely because I *want* to relax some of the control, so the insult seems silly.

    People can freely criticize all they wish. My desire that my work not be used abusively is no different than my not wanting to be abused personally, emotionally or physically. It’s my work, which I am willing to share but not for absolutely anything by anyone. The CC license is designed to relax the copyright restrictions, while retaining some rights and defining just how and when you don’t need to ask my permission to republish.

    So ad hominem attack aside, while I have already demonstrated an interest in less rights than I already have under the law, that doesn’t mean I enjoy someone grabbing my hard work for their own use in a way that is offensive to me and contrary to the purpose for which I created it in the first place. That is what moral rights are for, to protect the integrity of an author’s work, so that their work isn’t used in a way that violates their sense of right and wrong. I don’t want my words used to promote politics, for example. If that is censorship, so be it. It’s my hard work, and I should have some say in what it is used for. If you have trouble understanding that, it tells me you are not a writer.

    And the previous poster is correct: if a creator’s work is abused or conditions are so hateful that it’s not worth it to create, a lot of us will just stop. I don’t have to do Groklaw. It’s a choice. Or I could do it, but by membership only, so that only those who agree to certain conditions can read it. I personally would shut GL down before I’d do it that way, but I’m pointing out that creators have choices. We don’t have to share a thing if we don’t feel like it. We can do the Emily Dickinson thing, and hide it all away in a drawer. If we all do that at once, you have nothing to read, nothing to listen to, except what you can do yourself. If that doesn’t appeal, then you have to figure out a way for creative folks to want to share with you. We don’t have to, you know.

    Insulting people isn’t a good way to encourage them to produce more for your enjoyment, by the way. Try to imagine something more effective.

  • http://www.elitism.info/journal David

    First, I do think that the European tradition, being more author-centric and coming from the German philosophy of autonomy and personality and the romantic movement is more prone to moral rights (we call them Author’s rights in Spain too) than the anglo-saxon tradition, which is more publisher-centric and based on ideas about property and distribution rights.

    I’m in two minds about moral rights, and how they should be exercised. On the one hand, I believe that exclusive rights (like copyright) should be justified on a purely utilitarian perspective or not at all, I do not buy natural rights views on this. On the other hand, I think that the rights of attribution and integrity are important ones, and I don’t think that an author should be able to alienate them, or lose them by any action. When I write something, I am dumping mental state, and whereas I don’t think I deserve the right to control who can access this state once I distribute it to the general public, I do believe that modifications to it that could be destructive of the aims or of the form or of the essential characteristics of that state are something that I should have the right to stop.

    On the other hand, the truth is that there’s no easy way to make sure that moral rights are utilized in the manner in which they are intended. For example, I could be annoyed at someone writing a derived work on this post, because it is better than mine or it focuses on different things for example, and claim that the integrity of my work is undermined by it, and I as the author have the sole judgement on this, under current legislation. Yet it is clear that the undermining of creations has happened and can happen at any time.

    Personally I think that the way to solve this is for an author to have a limited right to integrity, in the following form: an author is allowed to bring forth legal action against someone who has undermined their work in their view, but the judgement on whether this is the case should be emited by experts versed in the subject matter. In Europe, often experts are chosen from State owned organizations, such as Academies, whereas in the US it seems to be that experts are hired by the parts. I believe the european approach is better, but that is somewhat besides the point.

    In another note, the right to integrity has nothing to do with a software company forbidding negative reviews of their software, it is rather something like this: I write a word processor which is really good; you come along and modify it, after purchasing a licence to do so from me; when you publish it, your program is very similar to mine (which is OK) but it works very poorly and the whole philosophy of it is undermined. Under moral rights doctrine, I can say “your derived work undermines the integrity of my work, and I don’t wish you to publish it”, and (in strong moral rights jurisdictions) whatever economic contract mediates between us is not capable to supersede this.

  • Joseph Pietro Riolo

    To Ryan,

    Last year, Fox in the court case _Dastar v. Fox_
    attempted to gain perpetual right to attribution
    through trademark. The U.S. Supreme Court said
    no and the right to attribution belongs to the
    sphere of copyright. Since the U.S. Constitution
    allows only limited times for copyright, right to
    attribution can’t be perpetual.

    This is a good decision for one very important
    reason: Perpetual right of attribution is very
    harmful to the freedom of speech and press (or,
    freedom of communication). Just think of how
    perpetual right of attribution can create chilling
    effect on the future generations’ freedom of press
    and speech.

    Better to stick with limited monopoly over communication
    than perpetual monopoly.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions in this
    comment in the public domain.

  • Joseph Pietro Riolo

    To PJ,

    Yes, what you want to do is called censorship.
    The Fair Use Doctrine allows the possibility of
    people to quote portions of copyrighted works
    in the ways that the authors of the original
    copyrighted works do not agree with.

    If you really want to have moral rights, you should
    probably move to France where you can enjoy
    perpetual moral rights and can scare away people
    who “abuse” your works. Or, lobby Congress to
    add moral rights to the copyright law so that you
    can trump Fair Use Doctrine, freedom of speech,
    and freedom of press with your moral rights.
    Or, learn to ignore those who abuse your works.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions in this
    comment in the public domain.

  • Joseph Pietro Riolo

    To David,

    I don’t agree with your position that authors should
    not be able to alienate their moral rights. The U.S.
    Government is not my mother, is not my father, is not
    my big brother, is not my big sister and should not
    tell me what I can and can’t do with my intellectual
    property rights. That is also true for moral rights
    if they are added to the copyright law. If I want
    to disclaim, waive, or obliterate my intellectual
    property rights, I should be able to do so. The U.S.
    Government should not take away my freedom of choice
    in giving up my intellectual property rights. It
    is so unnatural that the rights of integrity and
    attribution can’t be alienated regardless of how hard
    author wishes to alienate them.

    If you don’t want anyone to undermine the integrity in
    your software, don’t be too generous. Be more selfish.
    If anyone wants to modify your software, be sure that
    he enters an agreement with you that he will submit his
    program, that is based on your program, to your
    performance test before he sells his program.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions in this
    comment in the public domain.

  • http://www.robmyers.org/ Rob Myers

    They surround the articles of mine with articles of their own all about how awful Groklaw is and/or my policies, blah blah. At the moment there isn’t a thing I can do to stop it.

    I think that continuing to do the amazing work that you do on Groklaw is the best way to stop it. Leave these sites as the obscure trollpits that they are and don’t give them the oxygen of publicity.

    I hope one of you brainiacs will come up with a way to handle situations like that.

    You might like to try the “linkback bomb”. Under CC-BY-*-2.0 you get to specify a URL that must appear with the work. On that page, put the license and whatever you like to put off the trolls. They’ll hate having to link to this.

    Also remember that so much as a banner ad on the page means that use of your work is not NonCommercial.

    And if you make your work SA, they have to SA, which will also probably be anathema to them.

    It should never be that folks can use anyone’s work abusively on purpose to try to harm the author.

    I’m afraid it should: that is fair use for criticism. Disallowing this, however odious the mis-use, is censorship.

    Playing devil’s advocate, Groklaw could be regarded as a large repository of documents critiqued to harm the author (SCO).

    Surely there is a way to craft a license so that the author retains the right to selectively terminate the license, perhaps based on pre-stated violations, even in a noncommercial setting.

    Again playing devil’s advocate, I’m sure SCO would love to give out their documents under such a license.

    A terminateable license would be non-free (imagine a terminateable GPL!). There was a termination clause in an early draft of the CC-UK-ENW license, that got taken out in discussion. No-one would use such content.

    Moral rights (or terminateable licenses) will work against you as much as they will work for you. Probably more so. Big TV companies tend to get very enthusiastic when they realise that the CC licenses don’t cover moral rights… The solution is robust public discourse, not moral rights torpedoes.

  • http://www.groklaw.net pj

    Rob: thank you for your reply. But both you and Joseph have, I believe, misunderstood. Once again, this has nothing to do with criticism or fair use. I couldn’t care less about criticism.

    What people do isn’t take an article or two or three and criticize them. They mirror *all* my articles in totality, nearly 2,000 articles, in effect duplicating my site, minus the comments, and then they mislead the public into thinking that it is Groklaw. That is their stated intention, to misdirect folks looking for Groklaw on Google. Their expressed hope is that my readership will go down.

    That isn’t fair use, by any measure. It’s not even criticism. It’s internet thuggery. What I am asking you to think of is a way to stop something like that while still allowing someone like me to do Groklaw under a CC license. I am not necessarily asking for moral rights as in Europe, and it certainly doesn’t have to be a right retained forever, but I am saying that there should and could — I hope– be a way for CC licenses to prevent such flagrant abuse.

    And I continue to ask you to think about how to effectuate such a change, by thinking about the exact situation I posit here, not everything else everyone else is doing elsewhere. Just please focus on this one small situation, and see if you can devise some small protection. Thanks for thinking about it.

  • blaze

    PJ!

    There is a solution. The solution is something we should bring to the attention of Lessig and the CC folks.

    The solution is simple – attribution must be a in the body of the text. Ideally, it could have an attribute like “creativecommons=true” .. for example

    Original Author

    It’s geeky, but it *works*. The reason is how the search engines decide which websites are more important than others. Because people are linking to your page, your website will become more important in the eyes of all the search engines.

    This is very similar to the attribution you find in PHD papers. Professors are considered important because they are attributed.

    Creative Commons *must* specifically allow for this type of attribution. A type of Web CC License which enforces anyone who quotes your contents *must* strongly link the original web page or the webpage specified (in your case, you probably want everyone to hit your front page).

    Interestingly enough, it starts to also become a profit center as websites which have similar content will *purchase* advertising links from you at a much higher rate because they see your website as an expert in the field.

    In the particular case of groklaw, this might not be done because of various motivations. (Though, lets face it, you might write a book or leverage your fame in other ways.. but, it’s all good. More power to you – you totally deserve it all)

    But in the case of someone who is working for himself, they could really leverage the attribution financiallyl in a way that makes sense for themselves.

    I really encourage you to write to lessig and motivate him to add this type of language to his documents. It’s a very powerful, and I feel fundamentally, important way of handling attribution.

  • blaze

    argh! Must preview

    It should read

    “The solution is simple – attribution must be “a href=http://groklaw” in the body of the text. Ideally, it could have an attribute like “creativecommons=true” .. for example

    “a href=”http://groklaw” creative commons=true>” Original Author “a>”

    etc etc

  • http://www.robmyers.org/ Rob Myers

    What people do isn’t take an article or two or three and criticize them. They mirror *all* my articles in totality, nearly 2,000 articles, in effect duplicating my site, minus the comments, and then they mislead the public into thinking that it is Groklaw. That is their stated intention, to misdirect folks looking for Groklaw on Google. Their expressed hope is that my readership will go down.

    Erk. OK, that’s different. There’s nothing wrong with mirrors, and malice is one part of freedom, but then so is being able to tackle it.

    If that is their stated aim, you need to redirect people to Groklaw, and get the honeypot sites working for you to drive your readership up.

    As an aside, is there anything you can do with Google, either by contacting them or by using the sort of tricks that sites use to boost their ranking (but use them defensively)?

    A number of possibilities spring to mind for the licensing:

    1. Do use the linkback URL that the 2.0 licenses allow you to require licensees to display with the work. This will identify that the files aren’t on their original site, undermining the mirrors’ ability to pretend that they are the original source.
    So each article would *have* to have the following text with it:

    (c) Copyright 2005 PJ
    This document is licensed under a Creative Common License.
    http://www.groklaw.net/click_here_to_read_the_original_article

    If they don’t include the URL they are in breach of the license and they have no right to use the content.

    2. Remember that you can license the same work multiple times differently. So you can provide the article on your website in their raw form all rights reserved, and then provide a redistributable version that is CC-BY-NC-ND with an added disclaimer or, as blaze suggests, extra attribution in-text.

    3. Do assert the NC term. This site, for example, listing Groklaw articles alongside a Google ad include breaks NC (IANAL!): http://www.damnsmalllinux.org/arc/groklaw/

    4. Groklaw’s comments are a value-added resource for the articles. Make clear in the redistributable version of the article that the comments (and your responses) can only be found at groklaw.net , and that the reader is missing out on any mirrors.

    None of these are particularly strong solutions on their own, but combining a few of them should work against the honeypot sites whilst working for your original and not harming anyone who mirrors individual articles.

  • http://www.elitism.info/journal David

    To Josepth:

    Moral rights, unlike copyright, are natural rights, at least as understood in Europe. They emanate from the inherent act of authorship itself, they are not a government grant. That is why they are perpetual, &c &c. Now you can make the case that you don’t believe an act of authorship confers these rights, and then we have nothing further to talk about, because the whole construct of moral rights is based on this assumption. However, if you do accept that authorship does confer some natural rights, then the government cannot have anything to do with their grant, and because they are rights that essentially derive from authorship they cannot be transfered, any more than you could transfer your right of paternity for a child. That is why I think moral rights are and should be inalienable (because a contract can’t oblige you in matters of inherent rights) and perpetual (because the rights are achorded to you by the act of authorship and not by an act of government).

    An unfortunate consequence of this paradigm is the Berne convention position that authorship per se creates copyright also, which is in my view a different issue altogether, since I don’t think economic rights are natural rights of the author.

  • Ryan

    On Attribution:

    Please explain how accurate attribution can harm freedom of speech and Press in any way?

    In my mind attribution refers to correctly indicating who created the item.

    eg, you reprint something you include “original authored by Fred Smith, 1972, originally appeared in the Daily Gazette”

    eg, you create a derivative, you include “based on ‘blah’ originally created by Frank Nerk, 1984″

    How does this limit anything?

  • Ryan

    PJ,

    Given that new information, surely their practice falls outside the scope of any copyright etc… Tricking people into thinking their site is Groklaw sounds almost fraudulent to me, as a layman.

    :)

  • Ryan

    Just to clarify: I’m not arguing, I’m asking because I can’t for the life of me see how requiring attribution can limit any form of derivative creativity or future usage of work.

    And in fact, as a creator I find it appauling that someone may even consider NOT attributing the original author in a derivative or reprinting, etc.

  • http://www.groklaw.net pj

    Thanks everyone for thinking about this, and for the suggestions. I don’t know Prof. Lessig, but some of you may. If so, perhaps you could bring this to his attn? I feel odd emailing someone I don’t know and someone who has already cried uncle with respect to email overload.

  • http://www.robmyers.org/ Rob Myers

    Please explain how accurate attribution can harm freedom of speech and Press in any way?

    It could cause problems when a work (such as a wiki) has hundreds of contributors and some of the work is to be published in print. See the BSD “Obnoxious Advertising Clause” for why this could be a limitation on (FSF-style) freedom.

    The real problem (for copyleft, in other respects it is very useful) is Integrity. This allows you to complain about your work being arbitrarily mistreated. Which will be problematic when you are the one doing the “mistreating”.

  • Joseph Pietro Riolo

    To PJ,

    It seems that you learned a hard lesson about
    your generosity.

    Like many things, your generosity and Creative
    Commons license can be used in both good and bad
    ways. This is no strange to the open source code.
    Bad people use the open source code to commit
    crimes against people such as drug trafficking,
    child pornography, tracking dissenters, and so on.
    But, just because minority misuse open source code
    does not mean that the open source licenses must
    change to forbid the uses that the authors do not
    find acceptable.

    It is your choice to be generous in letting people
    to mirror your works and distribute your works via
    a Creative Commons license. But, you have to
    accept the reality that if you are generous to a
    group of people but are not generous to a smaller
    group of people, you are closer to the role of
    censor. Freedom is always a double-edged sword.
    Take a pencil as an example. You have total
    freedom in using a pencil at your home. You can
    use it to write a letter that will cheer up your
    friend who is depressed. Or, you can use it to
    write a letter to insult your old classmate. Just
    because you can misuse a pencil does not mean that
    pencil manufacturer must make up a license that
    comes with every pencil promising that you will
    not use it in any way that is harmful to people.

    Think for a moment what the Creative Commons would
    look like if licenses were modified to allow the
    authors to void licenses for the users that do not
    abide by the authors’ moral standard. The communality
    in the Creative Commons will be less when the authors
    in the commons start to watch over the users’
    shoulders to make sure that they are behaving in
    accord to their own standards. Eventually, Creative
    Commons will be just like any other organizations
    that police over the users’ behavior.

    As I said before, you need to learn to ignore the
    minority so that the majority can enjoy your works.
    If you don’t like that, don’t be too generous and
    come up with a license that is more restrictive than
    the Creative Commons licenses.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions in this
    comment in the public domain.

  • Joseph Pietro Riolo

    Just for information for David and others…

    Certainly, I don’t believe in natural rights in
    respect to the authors’ and artists’ works. The
    natural rights were dreamed up by the authors
    and artists long time ago to justify their control
    (read: monopoly) over their works. It is not a
    surprise that I find it so repulsive that I can’t
    ever alienate my moral rights in the countries
    that forbid such act. It seems like that I am
    committing a crime against natural rights and
    against the world of authorship if I attempt to
    alienate my moral rights. It is just so dumb
    (not you personally, it is the concept of natural
    rights itself).

    I just have an idea. What if I write anonymously.
    Will there be no moral rights for anonymous works?
    Or, are there really moral rights for “Unknown
    Authors”?

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions in this
    comment in the public domain.

  • Joseph Pietro Riolo

    To Ryan,

    It is not just one level of attribution that you
    have to worry about. You will have to worry about
    many levels of attributions. Let me quote
    from two sources:

    (start of quotation)
    You know, for a very highly complex, iterative
    product like a car, you might have 300 pages of
    credits in the owner’s manual before you even
    get to how do you turn on the key under the
    alternative universe of credits that is completely
    different from the derivative work credits
    required by the Copyright Act. (David A. Gerber,
    during oral argument on April 2, 2003 in
    _Dastar v. Fox_. See
    http://www.supremecourtus.gov/oral_arguments/argument_transcripts/02-428.pdf)
    (end of quotation)

    (start of quotation)
    We do not think the Lanham Act requires this
    search for the source of the Nile and all its
    tributaries. (Near the end of the opinion in
    _Dastar v. Fox_. See
    http://www.supremecourtus.gov/opinions/02pdf/02-428.pdf)
    (end of quotation)

    If you truly believe in right of attribution, then,
    you should have provided attribution for eleven
    random thoughts that you listed in your previous post.
    Then, you have to go backward asking people where they
    get their ideas from. At what point do you stop
    getting attributions?

    Providing attribution is nice and boosts up authors’
    ego and is fun for those who like to trace the
    rivers of ideas just like genealogy. But, it
    should not be a legal obligation. Just imagine
    what the world will look like if every quilter,
    toy maker, doll maker, recipe maker, every writer
    in newspaper, and so on are legally required to
    provide attribution for the sources that make
    up their new works. Newspapers will have to give
    more space for the long list of attributions.
    Quilter will have to attach a tag containing the
    long list of attributions to quilt. You will
    have to carry with you index cards to make sure
    that you write down the source every time you
    take anything from the source. In the long
    run, freedoms of press and speech start to
    lose their vibrancy.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions in this
    comment in the public domain.

  • http://www.elitism.info/journal David

    To Joseph,

    I must admit that I’m in two minds on the concept of natural rights, but the idea that authorship confers right of attibution and integrity seems philosophically sound to me. From the viewpoint of practical use though, I admit that it can be a pain, and there’s a very high potential for abuse. Personally I don’t think I’d ever use my moral rights, except in very particular circumstances in which the aims of my work are undermined by the actions of others, but I’m sure other people might not be so restrained. What is more, perhaps what I consider severe abuse of the integrity of my work is considered by others to be just mere derivation, and I’m sure an agreement and a line on when integrity is damaged is very hard to formalize. Still, if I wrote a great symphony I’d hate to hear it played on a ring-tone.

  • blaze

    Hey Rob..

    Thanks for pointing that out in 2.0

    I didn’t find it (it’s buried in the text of the legal document, which is silly)

    Unfortunately, it’s not very effective.

    For one, they can add a “nofollow” tag to the link which tells the search engines *not* to spider the link. There are a large number of other effective ways to ensure that page rank is not transfered.

    The key is, the search engines need to understand the attribution.

    My suggestion is something like this

    “a creativecommons=true href=”parent article”>Parent Article”/a”

    With statements about not changing color or doing anything which will restrict search engines from finding the URL.

  • http://www.digitalartauction.com Crosbie Fitch

    FAO Andrew Boysen:
    As to something to put in place of an EULA to encourage software development, how about this:
    http://www.digitalartauction.com

    Remember that Open Source does not require that you do not charge for the software, only that the source code is freely copyable.

  • http://www.digitalartauction.com Crosbie Fitch

    “Requiring correction attribution” is not the same as “Requiring that attribution be noted or brought to anyone’s attention”.

    It may be more precisely expressed as “requiring that any explicit or implicit attribution that is conveyed with an artwork or its context is truthful”.
    That means that if a work is presented in a gallery where it is implicit that there are a variety of authors, then each work does not need any attribution conveyed. However, if because the majority of works were authored by one artist, it became implicit that all works had the same author, then it should be made clear to the public that this was not the case – unless this could be demonstrated to be obviously unambiguous, e.g. due to the nature or fame of the works involved.

    An artist’s right to truth, does not confer a ‘right to promotion’. Nor does it confer a right to prohibit unfavourable derivatives – merely that where there is a danger that the original artist may be incorrectly implicated as the author of the derivative, this must be prevented.

  • Ryan

    Do you believe that a film studio, for example, should be able to take an obscure story from the public domain, create a move from it and claim that work solely as their own?

    Perhaps I’m missing something here, but that is wrong on any level.

  • Joseph Pietro Riolo

    To Ryan,

    Believe is a very strong word. For the sake of
    the freedom of communication, yes, I do. I feel
    that it is best for the creative authors and
    artists to be unfettered without chains of
    attribution.

    Before you brand me as a heretic, just look at
    many authors and artists. They copied many elements
    from the public domain works and yet, they claimed
    that they are their own. Witness J. K. Rowling
    with her Harry Potter stories. No author
    lives on an island. It is just the fact of life
    that keeping track of attributions will retard
    and restrain the creative process of authors
    and artists.

    It is no wonder why the public domain is so
    unpopular with the authors and artists even
    though they hypocritically rely on it as the
    sources for their works.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions in this
    comment in the public domain.

  • Ryan

    Being inspired by previous work you’ve been exposed to is not the same as creating a derivative of a specific piece of work.

  • Joseph Pietro Riolo

    To Ryan,

    Is there really any difference between building a new work based on the ideas that inspire you and building a new work based on a textual work that is based on the ideas? The only explanation for your attempt to differ them is that the former is not fixed in any tangible form while the latter is fixed in any tangible form such as book.

    In Ivory Tower, you are required to give attribution to anything that you copy regardless of what form it is. Else, you will be accused of plagiarism. If you copy an idea, thought, theory, or concept from someone else or from a source that is not yours, should you give attribution for the source? Ivory Tower says yes. But, there is no true freedom of communication and knowledge in Ivory Tower. Ivory Tower is very obsessive with “credit where credit is due” that it is willing to restrain the freedom. We should not listen to Ivory Tower and we should not let Ivory Tower dictate how we
    should communicate.

    Assuming that you do not believe that one needs to provide attribution for the ideas that inspire the person, the next problem is how you define a derivative. How much of work is considered as a derivative. If I copy only one sentence from an old book, is it a derivative? One paragraph? One chapter? 10% of the old book? 20%? 50%? 75%?

    Everyone has different opinion on attribution. I like to give attribution to the public domain works but I would not give attribution to the ideas that come from the works that still have copyrights (except when I am in Ivory Tower because I could not afford to lose degree). Also, if an expression in a copyrighted work is not copyrightable due to the Merger Doctrine, I will not give attribution. Some authors and artists are really 100% control freak that they want attribution for everything in their works including the ideas within the works. (But then, they are just hypocrite for they do not even give attribution for the ideas that inspire them.) Then, there are people who are control freak in lesser degree. We should not let the freedom of communication be in held hostage by them. Once copyrights in their works expire, their control in any form over the works cease. That includes attribution. After that, people should have the flexibility in deciding whether and when they should give attribution.

    Joseph Pietro Riolo
    <riolo@voicenet.com>

    Public domain notice: I put all of my expressions in this
    comment in the public domain.

  • LuYu

    I cannot believe I am about to do this, but i just have to challenge PJ on her post. Before I start, I just have to state that Groklaw is great, and I think that any one who believes in freedom in any shape or form owes PJ a great debt. Her research at the very least embarrassed evil companies like SCO and at most changed the outcome legal trials.

    Having said that, here is what PJ said:


    But it is precisely in the area of moral rights that CC fails, and I wish someone would come up with a workaround. Here’s what I mean: there have been a couple of folks who dislike me or Groklaw who have deliberately set up mirrors of Groklaw’s articles with the publicly expressed intention of diverting readers from Groklaw. They surround the articles of mine with articles of their own all about how awful Groklaw is and/or my policies, blah blah. At the moment there isn’t a thing I can do to stop it. I hope one of you brainiacs will come up with a way to handle situations like that. It should never be that folks can use anyone’s work abusively on purpose to try to harm the author. That’s the kind of meanness that the law is born for. Surely there is a way to craft a license so that the author retains the right to selectively terminate the license, perhaps based on pre-stated violations, even in a noncommercial setting.

    There are a lot of things that I wanted to respond to in this discussion, but this comment requires my immediate attention. If I waisted my effort by duplicating any of the responses following PJ’s post, it is because I had to say something about it before I continued with my study of the discussion. Finally, this is not a troll. I state here that this is a reaction to PJ’s post, and is not written solely to create an argument. If it sounds strong, that is because she has advocated something that threatens everything that I believe I have been arguing against with copyright.

    <rant mode=”on”>

    Can you really be serious? You of all people should know that copyright was not created to censor free speech. Do you think that Groklaw is not speech but a work of creativity? Guess again. Groklaw is a forum for people to voice their political views. The views expressed are primarily yours because it is your site. However, you should realize that if you were having this same discussion in a room, and not in cyberspace, it would be entirely speech. In this instance, you are actually, considering the use of copyright laws to stop people from saying bad things about you in an argument you have picked with them. I am in no way defending them, but when you do what is right, you should realize that those in the wrong will fight back. Whether or not they play fair, they have a right to voice their opinions — even about you. If you believe those statements are false, there are always slander and libel laws to protect you.

    So, you say they use your words against you, eh? Guess what: that is precisely what you do to them. What would the world be like if we were not able to publish the statements of SCO execs because they had “selective license[s]” that could be used to control your right to reproduce their speech? This control you talk of would be far more powerful in the hands of your enemies, and the fact that this idea is coming from you is frightening.

    So they use your words against you. Big deal. You should be proud. You are having an effect, and you have managed not to get sued by these litigious miscreants. If they did not use your words, you could be pretty confident that they did not care what you had to say. Their insults are nothing less than a badge of honor which you should wear proudly. Many in your audience wish they had the influence that you have.

    Do not let their rottenness infect you. In The Lord of the Rings, Saruman the White wished to rid the world of evil. While considering the problem, he realized that the most efficient method to achieve that end was to control the world. By following this path, he became as evil as the evil he was fighting. Is this what you want? Your enemies are greed and selfishness personified. Do you want to emulate them? Please do not. You are too important to those of us who have not gone over to the dark side.

    If copyright can be used to censor speech and discussion, how will the first amendment matter? We are rapidly moving into a time where all speech is cached, and that speech will fall under the scope of copyright. In the future, everything you say will be governed by the law. If that does not sound like 1984, what does? Do not let these irritating little rats goad you into unconsciously helping them.

    </rant>

    I am so tired of people thinking that copyright is about control. Copyright is about an incentive. That incentive is not control. That incentive is not guaranteed profit. That incentive is temporary protection from competition. There is nothing more to copyright. And there should be nothing more.

  • Ryan

    Of course there is a difference. One is an implementation and one is a thought.

  • http://www.tekstadventure.nl/branko/blog/ Branko Collin

    Do not let their rottenness infect you. In The Lord of the Rings, Saruman the White wished to rid the world of evil. While considering the problem, he realized that the most efficient method to achieve that end was to control the world. By following this path, he became as evil as the evil he was fighting.

    The Good and Evil in Tolkien’s world are different from the ones in ours. Any argument that refers to the value systems in LotR as if they could be wholly transplanted to our world is therefor void.

  • http://customreeboknano20.webs.com/ custom Reebok Nano 2.0

    I am regular reader, how are you everybody? This
    paragraph posted at this site is genuinely pleasant.

  • http://findrealtorsmilfordct.webs.com/ Milford Realtors

    I couldn’t refrain from commenting. Perfectly written!