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Violating Copyright for the “good of the project”

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In a follow up to a previous posting Give Us Money And We’ll Give You Free Culture, The Review’s resident culture-vulture, the fieryangel, submitted this post to the forum on 31st December 2007. After reading the article, please follow the thread for more discussion.


In the latest installment of the WMF fund raising blog, there is one more “Free culture” pitch, this time from the point of view of Wikipedia commons. I’ve already commented extensively about the last “free culture” pitch here, pointing out why I think that this line of reasoning is essentially the same as going into someone’s house and telling them to move out because it’s yours now.

The current poster, who is an active image contributor on Commons, suggests that we all read Larry Lessing’s book “Free Culture” which is available for “free” as in “beer” at this link. I won’t comment on the contents of this book yet, as I’m currently reading it, but I can say at this point that Mr. Lessing does not seem to understand that US copyright law, especially as it concerns individual creators, has changed profoundly since the 1978 implementation of the Bern convention and most of his examples are simply no longer true. I will comment on this book in detail on a further post, once I have time to digest this (it’s a pretty easy read, though…I would suggest that everyone read this, just to get a handle on these issues).

In order to express Mr. Lessing’s relationship with Wikipedia, there’s probably no better way of doing so than presenting this video:

A picture is worth a thousand words, huh? In bed with Jimbo comes to mind…

The writer here however is honest enough to give us her own point of view: she’s actively against copyrights, especially something which she refers to as “copyright expansion”. I suppose that she’s not aware of some of the situations which caused this law to change (making protection be “life of the creator plus seventy years” instead of a fixed number of years), which involved composers such as Eubie Blake who became destitute when the protection of their works ran out during their own lifetimes. I don’t think that these anti-copyright activist people ever consider for one minute that these laws can and do affects people’s lives in an extremely direct way, ie whether an older composer has money to live or not.

Her comments are quite direct :

I wrote this post to ask for your help. You may guess from my tone that I’m not happy about the length of copyright being (seemingly) continually extended. You’re right; I’m not. I personally plan to fight it and argue against it whenever and wherever I can. That is a fight that I now understand the significance of; I now “get it” because I edit in Wikimedia Commons and see the gems that can be gleaned from the public domain, items whose copyright has expired and are now available for public use, a common good. But that’s not why I ask for your help, because Wikimedia Commons does not do this fighting.

This notion of making works available for the common good, and actively working against the rights of individual creators and their families is rather….provocative in its Soviet-era implications. One wonders what Ayn Rand would have thought of this, as this doesn’t really fit into what I perceive to be an Objectivist line of reasoning.

It would seem however that although Commons does not actively promote the kind of “free culture” promoted by the writer here, it does passively promote copyright violations through not enforcing copyright laws when content is perceived as being necessary for the common good as defined by the editors in that project and through a rather vague implementation of “fair use”, which amounts to we need to use it, so the use is fair.

The evidence is to be found in the comments section of this post:

Here is a deletion request on Commons which has been in place since September 2007. Out of the eight files listed, four are clearly copyright violations. The evidence collected on the other four would seem to indicate that they are protected in the US (they are on the ASCAP database, so somebody’s getting money for their public performance) and a discussion of the new Russian Copyright law right on Commons has indicated that after midnight tonight, these files will no longer be public domain in Russia. Commons administrators in this discussion clearly have no idea what the difference is between the rights which the recording company had and the rights which the original creator/publisher contained. Easy solutions to this would be

    1. to make thirty second low quality clips of each of the movements and claim fair use,
    2. contacting the publishers and trying to get a “free license” (which they sometimes will do…it never hurts to ask–they don’t bite if you ask nicely), or
    3. deleting the files pending confirmation of the copyright status of the works.

The Commons solution is to do nothing because we need these for the good of the project, implying that the good of the project is above the rights of creators and international law in general. And this in spite of having contact information about who the copyright holders are and how to contact them. It seems to me that if EMI Music Publishing and Boosey and Hawks decided to start an infringement case, they’d have a pretty good chance of proving malicious intent. And I wonder how long it is going to be before they find out about this…

Secondly, in the article proper, the author gives an example of a photo which can’t be used because of copyright issues:

Does the name Phan Thị Kim Phúc mean anything to you? Probably not. What if I showed you a black and white photograph of a little girl running down the road naked, screaming and crying? Probably you would recognise that photo, and instantly understand all of the issues it is short-hand for.

She then whines about the fact that this isn’t a free work because the photographer’s copyright won’t run out until seventy years after his death (when people complain to me about how long seventy years is, I always ask them if they have a family house that been in their family for longer than seventy years and how they would feel if the government took it away because “they’d had it for too long”).

However, in the comments section, it was pointed out that the Wikipedia article for Phan Thị Kim Phúc does indeed use this image, which is claimed under “fair use”. Further more, Wikipedia uses this image because the Associated Press gave them permission to do so. What happens to the entire argument that the MEDIA PTB are against “free culture” given this? Could it be that the big guys aren’t so bad after all, if you ask them nicely? Of course, the letter very clearly states that they are only granting specific rights, and also that they do not agree that use of their photos constitutes “fair use”. But they did agree to grant specific rights. Why is this unreasonable?

The point is this: Wikipedia enthusiasts and “Free Culture” promoters need a reality check. Laws, in the form of international treaties, exist to protect the property of creators: not just for big business, but for individuals and their families. The perceived importance of the project cannot and will never supersede the rights granted to creators under these treaties and conventions. If Wikimedia foundation projects do not respect these laws which their own TOS agreements require them to follow, then sooner or later, there will be a problem.

For WMF to allow an individual to spout this kind of rhetoric on their official blog is the equivalent of waving a red flag under the nose of a bull. I don’t think that they can even imagine what it is they’ve done here.


Written by The Review

January 14th, 2008 at 3:07 am

7 Responses to 'Violating Copyright for the “good of the project”'

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  1. Aren’t there enough legitimate complaints about wikipedia, that you have to dig up such anti-sharing vitriol?

    For all his confidence and condescension, “FieryAngel” has obviously not thought as much and critically about copyright law as Prof. Lessig.

    A file that was in public domain in Russia is suddenly retroactively removed from it is part of the story. But he’s too busy hating to see how problematic this is.

    If the descendants of the Grimm brothers moved to the Cayman Islands, lobbied through a “life of author + 500 years” copyright law, would it then be OK to force Project Gutenberg to take it down? Yes, and it would be fair and just, if you believe FieryAngel.

    There are legitimate reasons to dislike wikipedia, namely that it’s a quiltwork of petty kings, being (ab)used rather cynically to further the economic interests of an unscrupulous objectivist, that it values user’s anonymity over accountability, that the “process” is devoid of meaningful checks and balances, and more.

    The culture of sharing which it is supposed to be based on, however, is not a problem, even though it’s somewhat opposed to the “ideas as property” notion. It’s not self-evident that the principles of property should be applied to any and all information a person should produce, in fact there are very good arguments against it. If FieryAngel reads through Lessig’s book, he might find a few of them, although if he insists on reading it as a certain person reads the Bible, it’s a waste of time.

    Harald K

    14 Jan 08 at 9:16 am

  2. Hey Harald K, way to miss the point of the entire article. It is not anti-sharing, rather it is about the cavalier attitude some of these people have in regard to Copyright Law. To most people the word law implies that certain behaviors are illegal and certain behaviors are not. Evidently you lack the mental facilities required to draw such inferences.
    Touchy-feely notions about how we all live in one big global community do not provide adequate justification (or any justification for that matter) for the theft of someone else’s intellectual property. When a group of people is stealing from someone else, in violation of the law, then it seems that the whole “culture of sharing which it is supposed to be
    based on” is indeed a problem, contrary to what you try ( I am being generous) to assert.

    As for your life +500 years “argument”, why not just make it a gazillion years. It makes about as much sense as what you wrote.


    17 Jan 08 at 5:30 pm

  3. Harald K.

    If you knew anything about copyright law, you would realize that Lessig is completely wrong in his analysis of it, and that’s why he lost the Eldrig case 7-0.

    The main issue that many participants on the Wikipedia Review forum had in this discussion here: was that the people who write these licenses are giving themselves rights which should only be exercised by the creators, to which they are absolutely not justified.

    So, think again, my friend.

    The Fieryangel

    20 Jan 08 at 10:02 pm

  4. Mark apparently feels the need to go insult instead of argue, and has not understood. Respecting law is well and good, but guess what, there isn’t one copyright law. All independent countries have their own, and there’s nothing stopping them from going far beyond any international conventions in asserting ownership. That wikipedia runs afoul of national laws doing ugly things like retroactively removing a work from public domain, is quite forgivable and understandable.

    I also cannot understand the Fieryangel’s analysis of the comments to his article. They brought up many of the important points, and I thought you made your case exceptionally poorly (”You’re drinking the Kool-Aid, obviously”).

    Let’s look at another valid criticism of wikipedia: Because of anonymity, arrogance, condescension and good writing skills are all you need to set up yourself as an authority.

    You could for instance say that a highly respected law professor has completely misunderstood copyright law, without backing it up in the slightest, and if people otherwise like you (because they agree with you on other issues, for instance), he’ll get away with it.

    This problem is not exclusive to Wikipedia, to put it like that.

    Harald K

    1 Feb 08 at 11:18 am

  5. Harald K could do with a couple of remedial courses in grammar and critical thinking, respectively. “You … a … people … you … you … he?”

    Who he?

    I think I understand what this is trying to get at, although to be honest it does make my head hurt. If I’m correct, the penultimate paragraph represents both an ad-hominem and a straw-man attack. Plus mis-representation by exaggeration.

    FieryAngel merely suggests mistrust of Lessing (Lessig? Must check in Wikipedia), and indeed claims to be reserving further judgement until finishing the book. To equate “does not seem to understand that [Copyright Law] has changed” with “has completely misunderstood” is to mis-represent.

    FieryAngel is making the case that “This problem is” endemic and fundamental “to Wikipedia.” “This problem” may also apply to the current post (though I beg to differ), but I’m afraid this is not reasoning; this is an ad hominem attack.

    Finally, the straw-man: “this can’t be a valid criticism of Wikipedia, because other people do it.” (I paraphrase.)

    Well, yes it can. And, in general, no they don’t. And, where they do, they generally don’t get so much uncritical admiration as does Wikipedia, which makes them less dangerous.

    Your point about Copyright Law is well-taken, though. Internationally, and even over time, it’s a mess. This is sort of because of the “Law” thing; although I’d personally take the “mess” over piracy. (Particularly given FieryAngel’s suggested options of requesting fair use or specific rights.)


    1 Feb 08 at 9:20 pm

  6. See this article in the Register which also deals with Lessig, and the copyright issue


    4 Feb 08 at 6:54 am

  7. The only one here with a cavalier attitude towards copyrights is the author. If you choose to make a career out of being a musician, and find yourself penniless the minute your copyrights expire, that is because you cannot manage the money you have already received. I oppose “death + 70 years” copyright terms not because of what I feel creative people deserve, but because I feel any competent person doesn’t *need* copyright terms anywhere near that long.


    24 May 08 at 4:26 pm

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