Progressive Music

More history being made this week for the music industry. First, NIN topped the Amazon MP3 charts with a CC licensed instrumental album.

Today, Apple promised to go DRM free on iTunes by the end of Q1 2009.

In October of 2006, I organized the first DRM protests in the states while a student activist in Free Culture @ NYU. A year later, we protested the midtown Apple store after Tower Records went out of business (Tower was our second target after Virgin Megastore in Union Square.)

A couple of months after the Apple protest, Steve Jobs wrote his famous anti-DRM letter to the music industry. Since then Apple has ostensibly been negotiating variable pricing and removing DRM entirely from the store. Jobs probably sacrificed the one-size-fits all $.99 price per song so that he could get DRM completely out of the store.

There are still things to be done, however, before victory is declared. The iPod supporting truly free formats would be nice (I'm becoming increasingly interested in collecting FLAC music), at least until the various patents controlling MP3 expire. Also, native CC licensing built into music stores like Amazon and iTunes would be nice too.

But as Voltaire said, "The perfect is the enemy of the good."

The WSJ Gets it Wrong Again and/or The RIAA Lies Once Again

The RIAA Logo.

It turns out the Wall Street Journal's sloppy journalism cuts both ways. On Friday I blogged about how the WSJ was reporting that the RIAA had ceased filing lawsuits against individual file sharers. Stupidly, I didn't really think about their source or attempt to verify the claims myself. Neither did the Associated Press.

Ray Beckerman (who had skeptically acknowledged these reports when the WSJ article first surfaced) has discovered that the RIAA filed another round of lawsuits against individuals just last week, a discovery that directly conflicts with the WSJ piece.

The WSJ's article suffers from exactly the same flaws as its piece on network neutrality; high on conjecture, low on meaningful facts about the get of the article. The lead establishes that the RIAA is "set to drop its legal assault" but goes on to describe the negotiations the RIAA is establishing with the ISP industry. Noticeably missing from the rest of the article is any evidence demonstrating that the RIAA is actually stopping its legal assault.

So we only have ourselves to blame -- we read what we wanted to read and without Ray Beckerman's excellent sleuthing, we might still be giving the RIAA credit for coming to its senses.

Whether it was the RIAA lying to reporters (which Ray seems to believe is the case) or the WSJ trying to see a story where there wasn't one, this was a case of not thinking critically enough about sources and evidence based reporting. Either way, if the network neutrality article didn't give you enough reason to distrust the WSJ's technology reporting, this incident should. This also leads me to believe that the WSJ has under-critical technology reporters rather than a malicious agenda to purposely misunderstand technology topics.

There's a lot to be cleared up in this situation and there is probably some truth to the RIAA winding down their lawsuits, but I don't think we should hold our collective breath or consider this the victory we initially did.

The RIAA's Loss

The RIAA has announced that they have stopped suing individual file sharers for copyright infringement.

The suits were based on the questionable notion that making files available in directories through peer-to-peer software like KaZaa was a violation of the copyright of the owner of the works. The RIAA was not going after people downloading music, or even people who had sent a file to someone else, but rather the set of people who had shared directories with files that looked like music and were available for public perusal.

This was problematic because the copyright statute doesn't actually say anything about "making available." The right to control who distributes one's work is one of the rights granted to authors by the statute, but the RIAA had no evidence that file sharers had actually distributed the files, just that they had made them available and that the files could potentially be distributed.

Consequently, the RIAA had to argue that "making available" was actually part of the copyright statute when it wasn't. When the handful of suits (out of 35,000) made it to court, some Judges started to realize this, and through the selfless and amazing work of Ray Beckerman, the legal community slowly turned against the prosecution.

All in all, the RIAA's campaign to sue their own customers was a disaster. CD sales continued to plummet and filesharing's popularity only increased. This is not to mention the public relations catastrophe the industry now faces. Musicians hate being associated with large corporations that the public perceives as evil, and more substantively, musicians have not seen any of the settlement monies the RIAA has been collecting on their behalf.


The RIAA is claiming that the campaign "was successful in raising the public's awareness that file-sharing is illegal" which is demonstrates a gross misunderstanding of the law and technology.

So what is next? The RIAA claims that they will be making deals with ISPs to institute something roughly similar to a 3-strikes and you're out policy against file sharers. The terms and details of these agreements are not flushed out (and will probably never be made available to the public), but on some level, this is a less vicious form of negotiation with the technical realities their industry is facing.

But there is already evidence of ISPs acting in haste to dismantle legal file sharing outfits. TorrentFreak has a story about an open source software tracker having their service revoked by their ISP because they were accused of hosting an illegal torrent of the game Command and Conquer. YouTube already engages in auto-take-downs of videos that are supposedly infringing.

I'm a huge fan of the site and have used it for distributing the uncompressed (~1gb) versions of two Creative Commons videos, A Shared Culture and Media That Matters: A CC Case Study. Because everything on LegalTorrents is free to share (under an appropriate CC or similar public license), it is the perfect counterexample to the RIAA's claim that file sharing is inherently illegal.

Put another way, file sharing in and of itself is not illegal (just as crowbars in and of themselves are not illegal) and sites like LegalTorrents demonstrate this. We should not let the RIAA use the fact that they've abandoned their campaign as a positive cover to privately intimidate ISPs into breaking the Internet.

More importantly, we should keep the pressure on ISPs about preserving network neutrality. When used on the public net and ISPs, deep packet inspection filtering and application layer filtering are violations of network neutrality and if the RIAA is successful in pushing these technologies as "solutions" to the file sharing problem, we are going to have a much larger problem on our hands than 35,000 dispersed lawsuits.

Soulja Boy Now Officially Sending Takedown Notices

A story told in three videos:

1. "Original" Soulja Boy Video **

2. Students for Free Culture board member and friend Kevin Driscoll teaching ROLFcon nerds how to do SouljaBoy:3. Kevin responding to his Soulja Boy takedown notice:

It seems that Kevin's video has become the victim of YouTube's auto-takedown robots. Good thing he posted it to as well. More info on the ROFLcon blog.

**Soulja Boy's YouTube channel doesn't allow me to embed his video into this blog, and despite my halfhearted attempts at circumventing this "feature" I wasn't able to post it with the others. I can't believe I'm arguing for the right to embed a video, or even that it would be possible to deny me the right to do so, but this is what happens when we rely on proprietary video codecs like Flash.

Google Street View's Revealing Error

Google Streetmap Blurs Faces in Advertisements, Too.

After receiving criticism for the privacy-violating "feature" of Google Street View that enabled anyone to easily identify people who happened to be on the street as Google's car drove by, the search giant started blurring faces.

What is interesting, and what Mako would consider a "Revealing Error", is when the auto-blur algorithm can not distinguish between an advertisement's face and a regular human's face. For the ad, the model has been compensated to have his likeness (and privacy) commercially exploited for the brand being advertised. On the other hand, there is a legal grey-area as to whether Google can do the same for random people on the street, and rather than face more privacy criticism, Google chooses to blur their identities to avoid raising the issue of whether it is their right to do so, at least in America.

So who cares that the advertisement has been modified? The advertiser, probably. If a 2002 case was any indication, advertisers do not like it when their carefully placed and expensive Manhattan advertisements get digitally altered. While the advertisers lost a case against Sony for changing (and charging for) advertisements in the background of Spiderman scenes located in Times Square, its clear that they were expecting their ads to actually show up in whatever work happened to be created in that space. There are interesting copyright implications here, too, as it demonstrates an implicit desire by big media for work like advertising to be reappropriated and recontextualized because it serves the point of getting a name "out there."

To put my undergraduate philosophy degree to use, I believe these cases bring up deep ethical and ontological questions about the right to control and exhibit realities (Google Street View being one reality, Spiderman's Time Square being another) as they obtain to the real reality. Is it just the difference between a fiction and a non-fiction reality? I don't think so, as no one uses Google maps expecting to retrieve information that is fictional. Regardless, expect these kinds of issues to come up more and more frequently as Google increases its resolution and virtual worlds merge closer to real worlds.

Moving on from Copyleft

I'm no longer using CC's Attribution ShareAlike for my photos, and have switched to requiring just Attribution when my photos are used. This post will hopefully explain why I switched, and present some ideas and critiques about copyleft with respect to photography.

When I first started my photoblog, in late February of 2005, I was releasing my images under Creative Commons Attribution-NonCommercial so that you could use my photos so long as you gave me attribution and didn't use them commercially:

This photo was originally released under a NonCommercial license.

After working at CC for the summer as their intern, I began to rethink my reasoning for choosing this license. The free software camp adamantly opposed putting commercial restrictions on software in the name of freedom, and therefore some opposed putting NonCommercial restrictions on free culture. Richard Stallman, the progenitor of free software, didn't oppose CC's NonCommercial license, so much as our other licenses for more technical reasons. Since CC has retired our Developing Nations License and Sampling License, it remains to seen whether he'll endorse CC now.

Anyway, Attribution-ShareAlike, Creative Commons' copyleft license, was the recommended solution to achieving some of the goals that people thought they wanted with CC's NonCommercial license. Afraid that someone is going resell remixes of your work? If they have to release those remixes under the same license in which you gave it to them (put simply, the principle of ShareAlike and copyleft), then they'll have no financial incentive to sell it, because the license will allow sharing and future commercial exploitation by the public. This, the reasoning goes, should make authors feel better about their work being commercially resold if and when that were to happen.

Putting aside questions about commercial advertising exploiting copylefted work, I then switched my photo's Creative Commons Attribution-ShareAlike license.

My Tonka Beans make it to the Wall Street JournalMany of my photos have been used by mainstream publications without my permission (that's a good thing as far as I'm concerned) because I've put them under a Creative Commons license.

Up until today, I had had most of my photos licensed under this license, and found wonderful uses of them by places like Popular Science, the Wall Street Journal, and of course, Wikipedia. It has since become very clear to me that there is a continuum, and that the more liberally you release a work, the better it can flow into the world.

It is for this reason and the ones below, that I am now removing the "copyleft" requirement of my photos. That is, I am removing the ShareAlike condition on my work, and releasing them under purely Attribution. This means you can mash up my photos, remix them, use them commercially, and do basically whatever you want, with absolutely no obligation above giving me proper attribution and stating that the original was released under a CC Attribution license.

Here are some more thoughts on why copyleft and photography aren't a great fit:

  • Copyleft is difficult to explain for most people unfamiliar with software, much less licensing, and it imposes a further transaction cost on people using my work. When I'm negotiating with people who hire me to take photos for events or portraits, the basic notion of attribution is very easy to explain. However, copyleft takes precious time and negotiating energy to further explain. Since I'd rather have my work used than not, most of the time I just waive ShareAlike anyway. This is the standard complaint levied against copyleft in the decades-old war between permissive licenses and copyleft licenses. Google, for example, chose the permissive Apache license (basically the software equivalent to CC's Attribution license) for their Android platform because it not only allows the codebase to be open source / free software, but because it encourages other companies to adopt it without further complications to their work flow and software stacks.
  • Similarly, most people ignore copyleft when they don't understand it. I'm torn about whether this should be a distinct point from the one above, but I think there's a difference between the cost of explaining copyleft, and the cost of using copylefted work. I have found numerous examples of when people use my images, and either don't want to pay attention to the ShareAlike condition, so they just ignore it, or they don't understand it in the first place. Besides having to explain copyleft, this forces me to punish the reuser with more work, something I'm not comfortable with doing when I should be the one that is thankful that someone else is reusing my photos.
  • The legal ground for what constitutes a "derivative" of a photographic work is less than clear. Therefore, it is unclear when parent works must be released under the ShareAlike license when they use my photo. For example, if someone takes my photo from Flickr (which was under a BY-SA license) and uses it in a mainstream newspaper, are they obligated to release the article that uses the photo under BY-SA or the newspaper or neither? The license states that derivatives must be licensed and shared in the same way, but there is a split circuit decision on whether a derivative is created by re-contextualizing a photo. Wikipedia has a "Reusing Content from Wikipedia" page that basically dodges the question.

    More importantly, its not just the courts who are split on this decision. Some people believe that copylefted material should not place an undue burden on mainstream press when using photos, and others believe that the press shouldn't be allowed to use work without giving up something a little themselves, namely the exclusive rights monopoly over the encompassing work.

    Needless to say, this is a frustrating fact of copyleft for photography that blurs the lines in a way similar to the NonCommercial issue. Deciding "What is a derivative?" looks, in some cases, as challenging as deciding "What is NonCommercial?"

  • Copyleft for photos doesn't make as much sense as it does for software. Richard Stallman's idea behind copyleft was to not only protect his work from becoming proprietary (and therefore locking him out of his own work), but to encourage people who built upon it to release those modifications back into the community. Building upon the work of others in photography does not require access to the source, even if you make the crass analogy that negatives (or RAW files) are the photography equivalent of source code, because all you need to learn and build upon photography is visual access to the final works. When I as a photographer, build upon the work of Diane Arbus or Andreas Gursky, my community does not need to have access to my negatives or RAW files to benefit from the changes I made based on an original photographer's work, all they need is visual access to my end result. And I don't buy the argument that access to my negatives or RAW files is just as valuable as access to a software application's source code, because the negatives and RAW files are essentially unedited and unprocessed. I also don't buy the argument that compiling a program is like exposing a negative. Where a compiled application fundamentally obscures the underlying source, an exposed negative only partially edits the underlying source -- you can still learn from the photo and build upon it, and even arguably share it.

So with that, all 3,330 of my flickr photos are now under CC's Attribution 2.0 license, and all photos on my photoblog are as well. Enjoy!


Someone submitted my FREE BEER photo from Sapporo to the FAIL Blog:

Here is my original from Flickr:

Free Beer

There are a couple of things that are frustrating about this. For one, they didn't follow my CC license and attribute me and release the modified version under the same license. That's forgivable because I made the photo basically impossible to find via a text search (so this person could have found it through an intermediary) because I hadn't tagged it.

Whats more annoying is that the FAIL blog seems to have posted this because people think its an example of Engrish in Japan:

That’s my only theory, really. Poorly chosen Engrish name. Then again, I’m also curious as to what the orange text reads - I can’t quite make it out on my own.

Someone named "Stallman" seems to have attempted to correct all of the failures of communication towards the end of the thread:

To understand the concept, you should think of “free” as in “free speech,” not as in “free beer.”

But something tells me its not really RMS, as he doesn't use a browser, so I don't think he's submitting comments on FAIL blog.

This doesn't exactly inspire a lot of confidence in possibility of a future world in which "free" suddenly means "libre" and not "gratis."

'A Shared Culture'

Creative Commons is in the midst of its 2008 fundraising campaign. Find out how you can support Creative Commons at our support site.

To celebrate the campaign, Creative Commons has released “A Shared Culture,” a short video by renowned filmmaker Jesse Dylan. Known for helming a variety of films, music videos, and the Emmy Award-winning “Yes We Can” Barack Obama campaign video collaboration with rapper, Dylan created “A Shared Culture” to help spread the word about the Creative Commons mission.

In the video, some of the leading thinkers behind Creative Commons describe how the organization is helping “save the world from failed sharing” through free tools that enable creators to easily make their work available to the public for legal sharing and remix. Dylan puts the Creative Commons system into action by punctuating the interview footage with dozens of photos that have been offered to the public for use under CC licenses. Similarly, he used two CC-licensed instrumental pieces by Nine Inch Nails as the video’s soundtrack music. These tracks, “17 Ghosts II” and “21 Ghosts III,” come from the Nine Inch Nails album Ghosts I-IV, which was released earlier this year under a Creative Commons BY-NC-SA license.

What's fun about this project is that I used two new sites in the commons space, and Legal Torrents has the original file here, and you can see all the proper attributions for the photos used in video at the bottom of the main page, where each has a link to a permanent time stamp that lives on the ImageStamper site.

The RIAA Has Already Implemented Collective Licensing

The RIAA Logo.

Indulge with me in a thought experiment.

Suppose you download thousands of MP3s over filesharing networks, and then, one day, you get nailed with the threat of a lawsuit from the RIAA. The RIAA then asks you to pay a fee to settle it now, so that you don't face huge infringement costs. You agree to do so, using your credit card, over the phone with an anonymous settlement representative (not actually a lawyer).

How is this that much different from collective licensing like ASCAP? The idea behind collective licensing for file sharing is to enable users to share files freely while paying a fee, similar to how radio stations and restaurants pay a fee to play whatever music they want. The details might get hideously complicated and I have serious reservations about adding more taxes to my ISP connection, but I do believe collective licensing is the only way out of the woods for those in the entertainment industry not interested in real sharing.

Anyway, what is the difference between how the RIAA is implementing their lawsuit campaign, and the way collective licenses might work for file sharing? You're paying a 'one-time' fee to settle your debts to the recording industries for revenues they think you cost them while downloading and sharing files.

There are some differences. For one, the settlement fee the second time around is likely to be a lot higher and perhaps the RIAA won't even offer you the right to settle the next time they contact you. You would probably end up in court facing massive statutory fines with no option of settlement. Second, the settlement fee is probably a lot higher than what the market would decide on. And finally, the settlement fee is being extracted by threat of impending lawsuit, not subscription obligation.

But the fundamentals of the transaction are very similar: users are already engaging in filesharing, the RIAA threatens with large fines if they don't pay a fee, and then, when they do pay the fee, they're off the hook for the time being.

The RIAA, knowingly or not, has effectively painted their way into a corner supporting collective licensing as the future of their business model. Whether or not the campaign is profitable is a matter of debate, but with fewer than 1% of RIAA victims choosing to fight the lawsuits, the math is in their favor: 30,000 lawsuits multiplied by a conservative $2,500 per settlement garners the RIAA at least $75,000,000 over the course of their anti-filesharing inquisition. While the payouts do not exactly make up for lost revenue from the death of their cash cow, and granted the settlements have been totally ineffective stopping file sharing, someone at the RIAA must have done the math and realized the settlements are now a full fledged revenue stream.

So while the RIAA may huff and puff and say the lawsuits are about punishing people for 'making available' (an specious legal argument to begin with) and exposing the rampant theft of our cultural heritage perpetrated by America's youth, we should really see them for what they are: an adaptation by a business to secure a new source of revenue.

The pity it in all is that the RIAA is ruining lives by doing so. If they were to just embrace collective licensing as a legitimate form of revenue, there would be a lot less friction in the marketplace for music and filesharing.

*Note that this post doesn't take into account the differences between collective licensing and voluntary collective licensing, and over simplifies the whole topic quite a bit, and for that, please accept my apologies.

Arts + Labs Astroturfing Content Filtering

by Scott Ogle

I came across a new 'industry initiative' called Arts + Labs to campaign for content filtering on the Free Culture discuss list and Wired Blog. While not traditional astroturf (the fraudulent masking of corporate agenda as a grassroots movement), because they admit that its funded by the telecoms, the campaign language and aesthetic insipidly borrows quite a lot from the Web 2.0, and free culture movements. Can you tell which of the following statements are from Arts + Labs and which are not:

The internet has become our community, our marketplace, our digital neighborhood. The internet connects us to our friends, to culture, to entertainment, to ideas, to the entire world. But the internet doesn't just bring the world to us; it also brings each of us to the world.


As creators and as consumers, each of us should be free to participate and prosper online.

Sorry, trick question -- both sections are from Arts + Labs.

Anyway, what is more curious is that "The ArtLab" blogroll links to sites like TechCrunch, The Register, IP Democracy, Wired Threat Level, etc.

These are all blogs that have covered (and in some cases skewered) the efforts of telecom to filter the internet at the cost of network neutrality for the sake of appeasing big content. This is a brazen and sad attempt at blog diplomacy. It's as if DailyKos added InstaPundit to their blogroll in some effort to be increase bipartisan communication on the blogs. While commendable on some level, does anyone really think that the shills who are writing the blog are going to even mention what GigaOM has to say about Network Neutrality?

I'm not saying someone paid by the telecoms can't write blog posts linking to pro-network neutrality articles. That might even be a good thing. But what I am saying is that statements like this:

Arts+Labs is a coalition of Creative and Technology communities committed to a better, safer internet that works for both artists and consumers. At The ArtLab, we offer our information and ideas; our contribution to the conversation about the future of the internet.

come off as wholly disingenuous because Arts+Labs really represents the interests of a few corporations looking to end network neutrality. This is where the campaign is essentially astroturf and engaging in the kind of "fair and balanced" rhetoric that FOX News and Bill O'Reilly have pioneered. By putting links to blogs that sometimes carry critical (but not too critical -- no links to Slashdot or BoingBoing, mind you) opinions of telecoms they're trying give the false impression that they are interested in discussing things and engaging within a community.

They are not.

Viacom, NBC Universal, AT&T, Microsoft, Songwriters Guild of America, Cisco (don't forget Cisco also makes and sells the routers to China that help block 'dissidents' from accessing western media) don't want to talk about network neutrality with you. They want to end network neutrality.

They don't want to think of you as the creators or the editors or the musicians. No, Viacom, NBC Universal, AT&T, Microsoft, Songwriters Guild of America, Cisco, think of you as the consumers. Why else would they have a page of "creativity" and only link to content friendly and corporately funded startups sites like NBC, MTV, and Comedy Central?

Why don't they have Wikipedia, YouTube, or Flickr on there?

Its because those sites wouldn't have existed in their view of the Internet. In Arts + Labs' universe there is no amateur as creating professional media. There is no free culture, no free exchange of content, and no network neutrality. Their Internet is a Premium Content Destination® where we stayas consumers and they stay as the producers.

Notice, also, how in the above screen shot how they distinguish between "Creativity Online" and "Premium Sites." This is a common tactic when arguing against network neutrality. Content company incumbents like to argue that abolishing network neutrality will encourage development of "premium" content channels on the Internet. That sounds good, right?

But what happens when Wikipedia gets classified as "premium" content and local ISPs, users, and most destructively, the Wikimedia Foundation, all have to start paying premium rates to reach their audience? That's not so good. Wikipedia runs on a shoe string and would likely not be able to raise the exorbitant fees that big telecom would ravage them with. Who knows, maybe it would be time for Encarta to make a comeback. Surely, Microsoft has enough money to pay AT&T to push Wikipedia off the net.

So until Art + Labs adds Wikipedia (or some other actual source of creativity online) to their list of "Creativity Online" I'm classifying this campaign as 100% astroturf.

(photo of Astroturf by Scott Ogle under a Creative Commons 2.0 Attribution License)