Ms. Murphy describes some cutting-edge technology to track down online piracy, including digital watermarking and web “spider” services like Cyveillance. She admits that nothing is perfect, and much of the work of catching online copyright infringement is left up to the photographers themselves. Many photographers were not willing to spend the money on watermarking, or monthly service fees for services like Cyveillance. It is easy to see how quickly online content owners were lulled into a sense of complacency, that it just “wasn’t worth it” to track down copyright infringers. In 1999, the alternatives were pricy and unreliable.
Another key issue discussed is that the contracts photographers signed when licensing their photos to a website were weighed heavily in favor of the website owner, and against the photographer. Many of them took all rights from the photographer forever. Those rights would then be transferred to a client, in the case of a stock photo website for example, and the photographer’s rights would be omitted yet again. Licensing is only mentioned in this context, not in the context of the photographer creating or controlling their own licenses.
The article seems to be geared toward photographers who sell their photos to “big business” or stock photo sites, and displays a desire for stronger copyright and better online piracy detection. This was a time when the future of internet content and technology innovation was unsure. Very few people had the insight to sense what the internet would become, or how important individual content owners would become; on sites like Flickr for example. Creative Commons deals with some of these issues – it allows photographers greater control over their rights. It allows people to dictate how their work can be used, and allows for the possibility that not all photographers want “all rights reserved”, as this article would suggest. Using Creative Commons licensing on your photos will not stop piracy altogether, but it can go a length to prevent unintentional piracy, and make your work more accessible on the internet. Creative Commons can help create a realm of work online that is in between the two extremes suggested by this article – complete anarchy with constant photo piracy, or strict licensing that takes and wields all of someone’s rights.
This case illustrates the important cultural tradition in the United States of building on the work of your predecessors. Until recently, all creative works filtered into the public domain, where new and innovative artists could use them to create new works. But increasingly, these works are being “held hostage” by rich and powerful copyright owners, who are interested in the economic value of the work, long after the original incentive of their copyright protection is gone. The Supreme Court ruled in Eldred that Congress has the power to continue to extend these copyrights; therefore to be controlled by the power and monetary influence of these “big business” copyright owners, and literary estates.
Justices Breyer and Stevens wrote detailed dissents to the decision, saying that it is not “worthless” to give the public access to creative works, and that the CTEA creates “expression-related harm”. Breyer goes on to say that we are injuring our national and cultural traditions by inhibiting the dissemination of the creative arts, and stifling innovation.
Eldred was a very important case to those who value a rich public domain, and a more moderate copyright practice in our society. Unfortunately, those groups lost. Creative Commons is a reaction and response to this case and its core issues. Creative Commons licensing helps to create a deep and varied public domain and helps to put copyright control back into the hands of the artists and creators. Weighing private interests over those of the public will keep Congress extending these old copyrights indefinitely. The truth is, they are valuable – but just as much to society as a whole.
Call#: Van Pelt Library KF2979 .L47 2004
Lessig illustrates a wide variety of specific examples, offers a thorough discussion of the important issues, and describes complex legal and economic issues in very easy-to-understand language. His mission seems to be to get this information about the current state of American copyright out to the public, since they are the ones being most harmed by the extremes of copyright control. The two main arguments are that over-extensive copyright goes against the tradition of developing new creative works from what has come before, and that the continuing extension of copyrights is unconstitutional (by ignoring the wording of the law that states a copyright will be for “limited times”). The lament is for the lack of a plentiful public domain, and how that negatively affects transformational and innovative expression. It also prevents important information from being disseminated to the public.
Much of the book centers on the Eldred v Ashcroft case which made it to the Supreme Court. The case focused on the two issues mentioned above. Lessig’s honesty about the arguments and outcome of the case are refreshing, but his overall view is pessimistic. The Supreme Court decision was against Eldred, stating that Congress can continue to extend older copyrights at their discretion, setting up a system of lobbying and corruption.
Lessig’s dislike and distrust of extremes is clear, and he does offer some ideas for a more moderate copyright culture in the US. One of the ideas expounded is Creative Commons, a way for content owners to license their own work, and start creating a richer public domain. It is now up to creators and artists themselves, since large corporations and Congress seem to be working together to restrict the public domain.
The goal of Creative Commons is to build a reasonable layer of copyright for the public to access. The licenses are simple, and easy to read - no need for a lawyer. There is a variety of licenses offered, so the creator can choose what they want; somewhere between “all” and “no rights reserved”. It gives copyright owners a wider realm of freedom, but also creates a world of content that others can use and build on.
Call#: Van Pelt Library KF2979 .M348 2005
Freedom of Expression is a very recent book in the tradition of Free Culture and The Future of Ideas. McLeod describes how the two main enemies of the creative public are the CTEA and the DMCA. He has a more optimistic view than we see in Lessig’s writings – he believes that individuals do have options when it comes to “overzealous copyright bozos”. Fair use is expensive, but should be used in court cases, following the principle of “use it or lose it”. And individuals should not back down when confronted with frivolous threats or lawsuits – they should do their research, educate themselves and others, and explore spaces and holes in the law. He also gives examples of free speech cases where the “copyright bozos” lost, including Nader v. MasterCard, “Victor’s Little Secret” v Victoria’s Secret, and Annie Liebowitz’s case against the Naked Gun franchise.
McLeod’s book is a veritable encyclopedia of examples from every aspect of modern life as to how the privatization of our culture is harming us irrevocably. He goes over sampling and music, collage art, book publishing and education, filmmaking, the internet and online content, the privatization of nature and public spaces, and electronic voting. He explains how in today’s world such innovators as Woody Guthrie, Martin Luther King, Jr., and Muddy Waters would be copyright infringers of the highest order. He argues that “freedom of expression” (which he trademarked for the book as an example of the extreme to which private ownership has gone) needs to have greater meaning to public life. This ownership, branding, and franchising of life impedes innovation and creativity. It is better for business, but worse for creative people. Society as a whole needs the existence of “the commons”, because the alternative goes against our cultural traditions. In the discussion of folk and blues music, he stresses the importance of building on tradition, and states that “a rented future forgets the past”.
McLeod explains how compulsory licenses in music would help artists and the market, and how Creative Commons licenses are good for society because they increase the public domain. He advocates for moderation, and a balanced public policy that takes into account private and public interests. This book is Free Culture’s “hip” younger brother, and could educate younger generations and pop culture experts to the current state of copyright in the US.
Call#: Van Pelt Library K1401 .L47 2001
The Future of Ideas was Lawrence Lessig’s precursor to Free Culture. It is extremely tech-heavy and goes into great detail about the history and infrastructure of the internet, and the principles the internet was built upon. He describes how these values of freedom and the free interchange of ideas are being corrupted by the extreme of copyright control in our society. The drastic increase and rapid changes in technology have gotten out of hand, and there is no longer a balance between public and private goals. Our past traditions can still come into play, and changes in technology do not have to alter our law or culture. The DMCA is a good example of a flawed law put into place as a response to changing technology. The juxtaposition of the early internet to what it is now is striking – the extremes of copyright and the lack of works in the public domain have severely stifled creativity.
The three main sections of the book are a discussion of the importance of “the commons” on the internet, how to recapture online creativity and innovation, and how to stop the increasing restrictions on the internet. The first section details the need for more free resources on the internet, and a realm of works that are owned by everyone, without control to their use or access. Lessig explains in detail the principles of the GNU/Open Source movement, and how important it is to the innovation commons, moreso because large companies lack the ability to quickly adapt to technology changes. The second section illustrates how the constraints that stifle creativity on the internet need to be removed, and gives examples of online innovation such as HTML books, mp3s, and online cultural databases. The need for new models and new ideas is strong. The third section shows how the law is being manipulated by corporations, and their increasing control over web content. Copyright and patent laws have been virtually re-written to stifle the creativity of individuals, and increase the control of government-backed media conglomerates.
The book is as pessimistic as Free Culture, but does offer some ideas as to how to alter this negative process. Lessig introduces the ideas of Creative Commons and 5-year copyright term renewals, if desired by the copyright owner. He emphasizes the importance of removing special interests, and finding new ways to spread information for free. He also encourages individuals to go after large corporations if they provide false claims to copyright.
This book is extremely important because of how it details the internet and online copyright issues. It very accurately describes the foundation of the internet, and shows just how far away from that beginning things have gone.
The decision that the thumbnails were fair use was based on the four fair use factors – mainly that Arriba’s use of the photos was transformative, and they did not harm the economic or commercial value of the original photo because the thumbnail was small and of poor quality. It can be argued that this took some rights away from the photographer, creating the assumption that thumbnails are not commercially useful. The Court placed a good deal of subjective emphasis on the quality of thumbnails, and did not foresee a market for them. However, the site was a search engine, and linked users to the original photography website, more than likely increasing the photographer’s traffic and online exposure. The key issue is that Arriba’s use of the photos benefited the public, due to the purpose of their site as a public image search engine, and not as a commercial photography site.
In the discussion of the third fair use factor, the Court agrees that creative works need more protection online, but that is the only factor that went in Kelly’s favor. The Court goes along with the idea that if something is on the internet, it is published, and therefore the content owner loses some control. The focus of the case seemed to lie with the quality of the thumbnail image versus the full-sized image, and not with the artist’s right to control markets and derivative works (which it can be argued that thumbnails are). The web is clearly a tool for the public, and therefore contains new markets. This case brings up many important online photography copyright issues that can be argued in a variety of ways. The importance of finding a balance to these interests and rights, as well as reconciling the public versus private benefits of online content becomes clear.
The more recent case of Perfect 10 v Google brought these issues back into the spotlight earlier this year, with another decision involving thumbnails, search engines and online photography copyright concerns.
Call#: Van Pelt Library TR581 .W45 2006
The book Licensing Photography is heavily copyright-optimistic and written to teach photographers how to make the most money off of their photos. Only one chapter is dedicated to online photography issues, and it is not a very thorough discussion. It is indicative of the lack of innovation in traditional photography circles, and the lack of education regarding many new digital photography markets. For being a “how-to” guide, it is obviously lacking some key insights in the integration to the internet and online/digital photos. Their only discussion of the use of new technology is of an offline database for linking licensing info to a photo or group of photos.
Even though the book was written in 2006, there is no mention of Creative Commons or DIY licensing issues, even though there are commercial Creative Commons licenses. Their insistence of holding onto traditional methods could potentially harm photographers, as Creative Commons licenses can increase online exposure. The book is not marketed just to commercial photographers, and therefore omits the interests of a large group of people who may be looking for an education in digital photography copyright concerns. The authors also do not take into account that artists may want to use their photos in different ways and still have them available for wide use. The chapter discourages the use of watermarking, image recognition software and web spiders, by claiming they do not work. While being a very copyright-optimistic book, it has a very bleak and pessimistic look at online photography issues. They mention how vital it is to track and enforce your photos’ licenses, but there is no discussion of modern licensing models.
There is a quote in the chapter regarding copyright infringement and how it is a “double edged sword”: “Make sure the edge closest to the offender is the sharpest one”. This is a troubling attitude, as there is no further discussion on sending letters to copyright infringers, cease and desists, or alternatives in internet technology – even in 2006. For being a very recent book on photography licensing issues, it is disconcerting that there is but one chapter on the topic of the web, and basically no discussion on modern issues. This plainly indicates the need for a greater education in the photography world of recent innovations and licensing matters. Many photographers are looking for a solution like Creative Commons, as it has the potential to balance commercial and creative interests. It can make it easier to track your licenses, and yet also increase your business and exposure. If more artists were aware of Creative Commons as an option, it might open their minds to the issues it addresses- like a wider public domain, and more moderation in our copyright culture.
This article is another in the copyright-optimism camp, but less in an economic way than in an intellectual property protection way. It is targeted to online copyright content owners, and offers insights on one’s rights and recourse involving copyright infringement. The author understands and accepts the culture of the internet, and that copyright owners may have differing attitudes about the use of their work. The stance is moderate and professional, illustrating a slow series of steps one can take without rushing to judgment or litigation. She offers examples of preliminary letters to send to infringers, how to contact them and gather information, create a paper trail, establish ownership of your work, register with the copyright office, send a cease and desist order, and request a search engine ban. The use of threats and lawsuits is downplayed, and the emphasis is on protection of your work, if that protection is so desired. There is no single online agency to help with content piracy- the fight is up to the individual, and this article stresses the importance of education and awareness of copyright issues with individual creators.
Even in this copyright-optimistic world, there is still room for Creative Commons. The author mentions Creative Commons licenses as a good way to display and track the protections of your work. Since the focus of the article is on individuals and not large corporations or big business, it touches on more personal content matters and ways individuals can take back and control their rights. The importance of creative control for lesser-known and less powerful copyright owners cannot be accentuated enough. The resulting discussion from this article shows how interested people are in learning more about online content issues – what their rights are, and how to get exposure, but still protect their work. Almost everyone is an online content owner in 2006 – with writings, research, photography or art somewhere on the web. If more people knew about their options and their rights, the tide could start to turn away from our current over-extensive copyright culture. This article demonstrates the vital nature of individual creators, and how key it is that they continue to create. Some people get frustrated with the internet, and feel it is too expensive or time-consuming to post online content – they fear piracy, the takeover of large corporations, or their perceived lack of protection. There are a variety of myths perpetrated about copyrighted content – that once you put something on the internet it is free to be taken, that online copyright protection is only for media conglomerates, or that content is not copyrighted until you register it. This article dispels those myths (along with many more), and shows how new licensing models like Creative Commons can help in more ways than one. It can give control over one’s rights back to the individual and educate them, which can then increase access to creative works on the web, and give society more ammunition to fight increasing copyright control.
One important issue from the case is how to determine if the “display” right of a photography copyright owner is being infringed online, and how linking is involved. If it is determined that linking to a photo is the same as “causing the appearance” of the photo, then a core function of the internet will become an infringing activity – linking to someone else’s photo, even if the link is to their site. More people are on the web every day, and more content is being uploaded. With the advent of blogs, an entire subculture has materialized based on the linking of content. Linking, framing, and hotlinking are all major aspects of the general everyday use of the web.
This case has reversed certain aspects of the Kelly decision, and illustrated how technology innovation and new markets are constantly in flux. Copyright protections and possible infringements are going to be equally in flux, as online rights are tested in court. It is impossible to predict the ways in which new markets will be created, and many copyright owners will continue to push the boundaries of copyright law. The online world seems brand new and many believe there is no room for our copyright tradition of moderation and balance. But it becomes more important every day to find that balance between private and public interests.
In July of 2006, both Google and Perfect 10 submitted briefs for the appeal of this case, meaning it is far from over. Fair use and emerging commercial markets will continue to be argued, and hopefully a balance can be found.
Stallman advocates more direct, individual ownership versus corporate or “unseen ownership”. Society needs more information made directly available to citizens, and our insistence that the author is more important than the user is misguided and harmful. Voluntary cooperation is needed to create an online commons, a world of resources and tools both academic and creative, that we can take and grow from. These essays illustrate how the public domain is good for society, and the most important thing to citizens is freedom.
Another brainchild of Stallman’s, the GNU Public License or GPL, is directly responsible for the emergence of Creative Commons licensing online. It was a way to take back the copyright protections and control that had been increasingly handed over to large corporations. It stresses the importance of the public domain and its necessity for all creative individuals.
There has been a recent moral schism between Open Source/GNU and the Creative Commons world. Stallman believes that Creative Commons is starting to veer away from the original ideals of Open Source, and does not have enough legal ground or strict-enough rules to govern it. He believes Creative Commons allows for too much misuse and misinterpretation, and no longer wants his name referenced with it. Stallman disagrees with the options Creative Commons allows for strictly commercial uses, and the restriction on derivative works. These are valid concerns for someone whose name is still attached to Creative Commons history. But giving more control to copyright content owners, and allowing people to license their work as they wish means just that – there needs to be room for everyone’s interests and goals. It is better to have these varied options and create the desired public domain, than to not have it at all.