Sony introduced Crackle yesterday; it’s their overhaul of Grouper, a user-generated video site a la YouTube that Sony bought for $65 million last year. Crackle is now designed to offer not “amateur” web video, but the work of aspiring filmmakers and animators.

Farhad Manjoo at Salon pointed out yesterday that part of what Sony is offering is the benefits of its own diverse corporate assets:

The company is now leaning on what MBA-types might call “synergy.” Sony owns many entertainment properties — movie studios, record labels, a huge video game business — and can thus offer attractive rewards to creators looking for more than YouTube fame.

The rewards Crackle offers to filmmakers for uploading their videos include a potential pitch to Columbia Pictures, a two-day apprenticeship at Sony Imageworks Animation Lab, and a night performing on the stage of The Improv. As far as I can tell, Sony does not own any of The Improv, but is certainly in a position to negotiate sweet deals with partner organizations to assemble its rewards for its content providers, not unlike what they do for Survivor or Project Runway. User votes will decide who receives these rewards in various categories.
I just wanted to point this out; I suspect you will see more about Sony on this blog in the months
to come. What we’re seeing is a series of corporate players working out the viable economic and cultural positions they’re willing to occupy and their customers are willing to embrace, all amidst the shifting dynamics of digital culture: changes in the economics of information and distribution, current re-thinking of the evaluation of amateur and professional expertise, the appropriate relationship between culture and commerce. One viable intersection point seems to be the YouTube model: company makes possible the uploading of content and the maintenance of the community that forms around it; advertising is delivered alongside for the purposes of revenue. Another seems to be this contest model, where company hosts content loaded there in pursuit of rewards, viewers are offered both the content and the role in adjudicating the contest. Farhad’s observation is one reason why I think this is an appealing model to the Sony and the like: the contest can also deliver, dirt cheap, the cream of the crop into their entertainment / star system, and presumably on their terms — just like American Idol contestants winning exclusive but restrictive recording contracts with a Sony/BMG sub-label and a management contract with Simon Fuller’s 19 Entertainment. User-generated content also becomes a form of A&R, with user votes replacing the assessments of music label reps.
I think Sony is in an intriguing, though perhaps not unique, position in regards to these maneuvers — being a company that offers content and tools, hardware and software, computational technology and consumer electronics.

Self-professed “communication junkie” Dima Epstein is proposing a CommFree Day on the first Saturday of every month, beginning August 4. The idea is that, for those of us who love media and information technology, but also understand on some level that it shapes and shifts how we are in the world and can swamp our other priorities, that one day a month without our computers, cellphones, and TVs would be an enlightening and refreshing experience, a way to gain perspective. Or as Dima puts it,

I am not suggesting doing that out of hatred towards technology… Quite the opposite. I suggest that because I think we need this break to reflect on where we are heading and reflect on the role media and information technologies play in our lives. I think it is a healthy practice, and the key for it success is it becoming a practice…

My additional suggestion was that, if you’ve take part in CommFree Day on Saturday, then Sunday should be a “Day of Attunement” — what I want is for people to spend a day using their communication technologies all they want, but doing so in a way that is attuned to the role they’re playing, to how they mediate their relationships, their citizenship, their social identity.

Here endeth the lesson. I’m going to stop reading Dima’s blog and get back to work — on my computer.

I find things like this amazing, though it is certainly a sign of the fact that I find weird little policy issues amazing. The Russian website has been shut down by the Russian government; the site sold a huge collection of popular music, including most releases from the U.S. major labels, for 10-20 cents a song, in unprotected mp3 format, and had surpassed Apple iTunes in sheer volume of distribution. [Thanks to stereogum for the info.]

The company was in a grey legal area: it paid licensing fees to the Russian Multimedia and Internet Society, their equivalent of our ASCAP, and thus argued that it was a legitimate business; the RIAA claimed it was illegal, arguing that the Russian licensing group did not represent their interests. In January they sued for — wait for it — 1.65 trillion dollars. [Thanks to boing boing for the info.]

Apparently, and here’s the amazing thing to me, the Russians shut the site down in response to U.S. pressure, which was actually made explicit. According to the London Times article:

Susan Schwab, the US Trade Representative, singled out during talks last year on Russian membership of the WTO and said that closure was a non-negotiable condition of entry. She and German Gref, Russia’s Minister of Trade and Economic Development, signed an agreement in October in which Moscow pledged to shut down the site, which contains one of the world’s largest online collections of pirated music.

As important as I think copyright is, its amazing to me that the question of trade relations with Russia and the governance of an organization like the WTO doesn’t have bigger issues to focus on than whether exists or not. But that’s the way the U.S. has played this, at the behest of the music and movie industries and their coziest technology partners: stem the tide of online file-trading — and upstart distributors — through lawsuits, anti-piracy rhetoric, legislation, and DRM here in the U.S., and extend those same tactics abroad by tacking them on to trade agreements and treaties. It’s stunning to think about how many allies the MPAA and RIAA have enlisted in this effort, from Congress and the FCC to ISPs and universities to the Boy Scouts and Junior Achievement — and governments around the world. And last January, apparently, Visa and Mastercard told the Russian company they would refuse to process credit card purchases.

Man, Matt told me to use that site like three years ago, and I never got around to it.

The Times article also notes that another Russian site,, has already emerged, looking curiously similar to the old site. I just tried to buy the new White Stripes album, but their credit card service is down… hmm…

In the short time that Apple has become the third largest music retailer — not digital music, mind you, music altogether (recently passing Amazon, behind only Walmart and Best Buy) — its easy to forget that the major music labels have only ever had short contracts with Apple to sell their music. Despite the confidence with which Steve Jobs has commandeered the market for online music, he has always been a hair’s breath away from finding himself without major chunks of his library.

This week, Universal Music Group, which is responsible for roughly one in every three major pop music release, announced it would not renew its two year contract with Apple, opting only for a month-to-month arrangement. [Thanks to Adam Engst of TidBits for pointing out the New York Times article.] This seems to be part of the ongoing scuffle between Apple and the majors about pricing — Jobs has stood firm on a flat fee, whereas the labels want to be able to price songs and albums differently depending on popularity and release date — and the fact that iTunes downloads are formatted to play only on iPods — the labels want some compatibility with other players, whereas Jobs, umm… doesn’t.

I think it’s fascinating to look at this news in light of the recent decision by EMI to allow Apple to sell its music without DRM copy protection. It was easy for many to see the EMI announcement as the leak in the dam that would inevitably lead to the rjection of DRM. Universal’s decision may be related or not to EMI’s move — could they be jockeying for a good negotiating position for price and control as they let go of DRM? or could they be flexing their muscles as a gesture that they need not follow suit? But it’s certainly a stark reminder that Apple is negotiating a precarious balance here. Play the “no DRM!” card too hard, or hold too tight to the iPod exclusivity, and they may find that a very large chunk of their music is suddenly only available at Microsoft? And its a reminder — and this was my point in the book, though I’ve been wishing lately that I had made it even more pointedly — that these questions of ownership and technical protection measures are, at their base, very much economic strategies, though fitted with compelling rhetorical rationales, between companies jostling for control of a precariously fluid market.

Here’s the introduction I gave to “Download Debate III,” a panel discussion I moderated, hosted by the University Computer Policy and Law program at Cornell University, back in April 2006. It introduces copyright and its history, the political importance of the current debates about the law, and the various ways in which universities are, and should be, involved.

You can stream the entire event here.

As an aside, this is my first video uploaded to YouTube. I very much felt both the value and the constraint built into their service: it was incredibly easy to post the video, but I spent a lot of time cutting what was a twelve minute talk down to the requisite ten minutes — a limit that is primarily a way to discourage copyright infringement, posting TV shows and movies and such.

Tony Price has just posted a very interesting article at openDemocracy. Two years ago, openDemocracy was convinced to publish their material under a Creative Commons license, which means that anyone can republish their material, so long as it is not being commercially distributed, it is not modified, and its source is attributed. (Creative Commons offers a series of licenses that allow you to pick and choose which kinds of re-use you will allow or not; but the primary innovation is that use is being authorized up front — copyright law generally expects authors to reserve rights until they’re asked.) In 2005, Siva Vaidhyanathan made the case in openDemocracy’s pages that Creative Commons was not only a sensible and just way to handle copyright, but that it was particularly suited to the democratic mission of the publication:

The articles on openDemocracy deserve to be circulated and used in more than one context. They can be rich resources and raw materials for further scholarship, criticism, and journalism. Their authors often inspire new ways of doing politics. By joining openDemocracy in the Creative Commons, they inspire new ways of sharing and developing knowledge too. Democracy, like culture itself, must be a collaborative project.

Price, in his article, expresses some skepticism about the decision. After finding some of their articles reproduced on a site with higher Google pageranks, he wonders whether it is in fact a good thing that their articles show up elsewhere, and that their license explicitly authorizes this. His point, provocative though I think incomplete, is that the Creative Commons idea is very good at circulating content in a context of abundance rather than scarcity, but not as good at helping to establish and strengthen the kind of community that forms around content. If openDemocracy’s content immediately migrates to other sites, to any site, do they lose the sense of specialness as a resource, as a destination, and the sense of community that then comes with it?

The Digital Commons points to the fundamental difference between information and atoms: information can be almost costlessly reproduced, and the more reproduced the better. Limits to the reproduction of information are a hangover from non-digital economics.

But this is an orthodoxy I refuse: one of our articles is part of a publication; that publication makes a community; and every moment of attention that the community loses is one that might have contributed something of value to the greater whole that we are trying to build at openDemocracy. In this respect, our creative-commons licenses, by dispersing the energy of the community we are building, are destroying value. Indeed, it is almost built into our current licensing technology that the pieces most likely to build our community will find themselves aggregated elsewhere, because they are the most likely to be reused by other communities.

Price is tapping an interesting tension here. The old version of this concern used to be: people trade music on peer-to-peer networks with no concern for paying the artist; that works now, since all this music has already been released — but what happens when artists stop producing music altogether because it is being redistributed, and fans are left with nothing to trade? Or, political blogging claims to be an improvement over mainstream media, avoiding lots of the problems that commercial and institutional imperatives force on the old form — but blogging rarely includes investigative inquiry or breaking news, its really about recirculation, commentary, critical analysis, so what happens if the mainstream news collapses, what will bloggers comment on? These concerns are, I believe, unwarranted because they are too stark: there are lots of reasons why musicians will continue to make music and journalists will continue to investigate, even in a context in which users now eagerly take, recirculate, and comment on their work. But Price’s concern is a sharper one: does the value of community, the way people gather around a site like openDemocracy, fuel the continued production of its content, and its sense of significance? (This has echoes of Benjamin’s worry about the loss of “aura” when cultural works can be easily reproduced.) If those materials can be found outside of its designed context, whether its on another site or through aggregators like Google News or RSS readers, will those communities wither? As Price puts it,

The commons have always been sustained by communities, and the digital commons, embodied in the iCommons movement, will be the same. Communities both pay for and give life to endeavours in the public space. They supply both sense and cents.

What Price underestimates is the “attribution” aspect of the Creative Commons license, and of this context of abundance more generally. Communities can’t just hunker down and survive, they need to grow and remain vital. They do this by expanding their reach, finding new members while also serving the old, connecting to other conversations and deepening them. The fact that openDemocracy’s articles get picked up and re-posted on other sites, or made available out of context through Google News, not only gets them to more people, it directs some of those readers back to the site, where some of them may become members themselves. The link back to openDemocracy, through attribution and through a literal hyperlink, is a kind of advertising, a kind of invitation, a kind of enticement. It’s actually better than an ad, because rather than being told “you really should check out our site, it’s good, I swear” a reader finds value in an article, and has reason to seek out more. Just as some musicians will continue to make music, even if there is no profit for them, and just as some journalists will seek out information even if there is no financial reward coming to them, communities will continue to form around shared value and meaning. The porous boundaries of these communities is always valuable and risky, and every community struggles with how porous to be. But allowing the content itself to circulate strikes me as the most powerful way to make a community open, strong, viable, and lively.

I was talking with my student Dima today, and we were going over the recent controversy about Google’s “Street View” map feature and its potential privacy implications. And it occurred to me that Google has adopted a very powerful strategy for how it introduces new features, one that changes the game for how public consideration of its implications goes. Rather than announcing that it is about to begin to take photographs of every point on every street of major U.S. cities and posting them online, so you can see faces and license plates and questionable behavior and right into front windows, and then face the potential debater or outrage, they simply do it. They do it without fanfare, without even any public knowledge (a pretty amazing accomplishment for a project of this scope — but they seem to do it all the time).

So they still face the public debate, whether it sways in their favor or not. But the debate happens in the context of an existing feature — and, as is typical of Google, a beautifully designed and intuitive one — which can argue for its own value. If we were having this privacy debate about a feature yet to be designed, I think it would be much easier to see it only in the light of privacy risks, and the debate might even be intense enough to discourage Google from doing it. But now, its harder to argue when the tangible value of the feature is so palpably obvious.

This doesn’t always work — the uproar about the Facebook “News Feed” feature, which simply appeared rather than being announced, may have been actually more intense because it was already up and running, already revealing people’s every action on the network to all of their contacts. But it does let Google win a lot of support from those who might say, “sure, its got some privacy implications, but look how handy it is!” And, as Dima pointed out, it’s free. Which got us thinking about the cultural implications of free. Chris Anderson, author The Long Tail, is apparently working on a book called Free for 2008, discussing the cultural implications of goods that are priced at zero. Here’s one. There is an illusion of benevolence that seems to come with Google’s offerings: hey, here’s the greatest search engine you’ll ever find! Hey, do you want intuitively designed maps of the entire continent? Here you go. Need a better email client? Why not take ours.” Its not as if these are actually acts of benevolence. Google is a for-profit company, and quite a profitable one. But because there’s no visible price tag, no subscription fee, these services feel like gifts. When you pay for that music subscription service, or buy that expensive software, you are faced with the undeniable fact that the provider wants your money, and even in our consumer culture that comes with skepticism — am I being hoodwinked into a lousy product? Does this company have my best interests at heart, or just their own? I wonder if Google, and other providers of “free” stuff, subsequently get a bit of a pass from their consumers because of this seeming generosity.

This would be funny if it weren’t such a sadly chronic misunderstanding of copyright. Engadget reported yesterday that Richard Charkin, the CEO of Macmillan Publishers, stole a couple of laptops from the Google table at the BookExpo American convention, returning them later
noting that “there wasn’t a sign by the computers informing him not to steal them.” This was a painfully misinformed commentary on the Google Books project, where Google is working to scan all printed books in order to make a searchable index of all written literature. (I have commented on this case before, at InsideHigherEd, if you want background.) This is yet another example of the painfully endemic assumption, one especially shared by and perpetuated by the content and publishing industries, that copying=theft. (Here’s just one example I’ve been writing about: click on “what is piracy?” to see what I mean.) Its not true, at all, in a legal sense or in a cultural sense; Lawrence Lessig goes point by point on how wrongheaded the parallel Charkin is making is. Maybe these kind of puerile antics are common inside of the corporate spaces into which I rarely venture, or maybe we really still are in the very heart of the copyright wars, or maybe book publishers are just now experiencing the shock + outrage + haughtiness + opportunism that the software, music, and movie industries already got over. But as a language game, the claim that copying=theft is a powerful discursive tactic, one that is going to have more consequence than any particular case or piece of software will.

I’m still trying to tease out the exact contours of the issue, but there is an article and discussion at Playlist that suggests that the new 7.2 upgrade of iTunes, which ushers in the long-awaited DRM free tunes made available by EMI, also comes with a hitch. It always used to be the case that if you bought music from iTunes, which has FairPlay DRM on it, you could burn the music to a CD and rip it back into the unprotected MP3 format, thereby getting rid of the restrictions. With the latest version of iTunes, apparently, if you do this, you will find that you cannot then put those MP3 versions onto your iPod. There is some discussion following the article as to the specific details of this, and more importantly, whether this was Apple’s attempt to close the loophole or just a glitch that will quickly be repaired; a follow up to the article suggests that it is a bug, and can be worked around by recreating your iTunes library.

People are just waiting to see whether Apple and EMI are being as benevolent, or at least user-friendly, or at least attuned to the market value of consumer goodwill, as they say they are; you can feel the critics chomping at the bit, and this detail, though minor and maybe unintended, was just the kind of bait-and-switch they were anticipating. Another article at Playlist and a post at Ars Technica note what I think is a more important observation, which is that the new DRM-free tracks are not unmarked MP3s, they are restriction-free AAC files that include, in the metadata, the name and email of the person who purchased it — making it very easy to track who is making those files available on peer-to-peer networks, and very dumb to do so unless you know how to scrub that data (by, for example, burning them to a CD and ripping them back into MP3 format, per above.)

But not only is this a great example of my favorite topic, the way use can be carefully and subtly choreographed inside of the workings of a technology, it highlights a different issue about iTunes and networked culture more generally, one Fred von Lohmann is also pointing out over at EFF: the way software upgrades represent an ongoing relationship with a content provider or distributor, one that allows them to change the rules of the game part way through the transaction — and for content you already purchased. (In fact, it is not technically correct to call it a purchase: like most digital content, you are not buying music from Apple so much as licensing it, which gives them legal standing to make changes like these, so long as it says they can in the End User Licensing Agreement [EULA].) Computer software and networked devices tether us in new ways to the institutions that rpovide us the devices and the content, making room for these 11th hour switcheroos. Rather than being “yours” the cable box under your TV and the music software remain “theirs”. This of course has value — an upgrade rarely arrives without the promise of some improved feature — but also raises a new kind of risk, where the terms upon which we initially agree may not be the terms we end up living with. And while we could always refuse to upgrade our iTunes, if we’re aware of the tradeoff we’d be making in time, there is a cost: not only do we not benefit from the new features, and whatever features follow in subsequent upgrades, but eventually our software will be unsupported, even by as user-friendly a provider as Apple.

I’d been hearing rumblings about a new book, The Cult of the Amateur by Andrew Keen, for a while now — its apparently a screed against the Internet for allowing amateur purveyors of information, opinion, and art to swamp the traditional, expert, professional providers of such things. I have not read the book, and am certainly curious to see what he manages to marshal by way of evidence or persuasive argument, as I am most certainly already skeptical of his central premise. But Lawrence Lessig, who apparently was privy to an early copy, has already sharply and beautifully taken Keen and his book to task. No surprise, Lessig disagrees with Keen’s argument, and no surprise, Lessig shows up in Keen’s book as a champion of the amateurish Internet. But Lessig performs a surgical smackdown, noting not only Keen’s mischaracterization of Lessig’s position, but a series of fundamental and painfully obvious errors and overstatements that, he notes, are endemic to the book.

Lessig goes so far as to winkingly suggest that, in fact, Keen is defending the amateur, by demonstrating that the old model — major publisher anoints expert author to say authoritative things to mass audience — can produce just as much crap as the Internet does.

Well, Keen, you wanted a return to the authority of experts. You got one.

Lessig is bringing up sideways a point I like to tackle head-on in my classes. I find the most interesting aspect of these phenomena (be it Wikipedia or blogging or YouTube or Amazon recommendations) is the way that they force is to recognize that the established mechanisms and institutions of information and culture (be it Encyclopedia Brittannica or The Wall Street Journal or NBC or Consumer Reports) are themselves socially produced, historically contingent, institutionally bound, and systematically imperfect systems. They too have an implicit, built-in philosophy of where knowledge and culture come from and how one knows to trust or appreciate it, they too are structurally better at getting at some things and worse at others, they too can be mishandled or exploited. This is not to say that we should adopt a relativist position, that any way of producing information is okey-dokey. We can have a discussion about specific kinds of resources are best served by particular arrangements, some of which may benefit from wider, amateur participation, others benefiting from more bound, trained communities. But it obligates us to give up this kind of comfortable certainty we enjoy about those traditional forms, the social authority they have built up over time that cloaks their imperfections. And just as much as the Internet and its applications may be highlighting this, the traditional institutions of knowledge are doing a fine job revealing their own weaknesses all by themselves — from the failure of the political press to challenge the run up to war in Iraq, to the diminishing cultural relevance of major label music, to the crushing consolidation of corporate radio , etc etc.

There is a great deal of literature out there on digital copyright, and while much of it requires you to already be deep in the discussion, familiar with case law, and technically savvy, there are a select few pieces that attempt to situate the case and its significance in broader terms. I hope that my book, or at least the first few chapters, do this, but it is a very difficult thing to do: talk to the uninitiated without losing them, or talking down to them, or being useless to those more familiar with the issue. I would say that Jessica Litman’s book Digital Copyright is one of the best in this regard, just in terms of being introductory and comprehensive while also taking her reader right to the edges of the question. Lawrence Lessig’s book Code, and Other Laws of Cyberspace is a close second, valuable because it not only addresses copyright but the broader issue of what shapes Internet activity more generally, but less perfect because it moves quickly from providing introductory ground to the argument itself. For the specific issue of “digital rights management” as an outgrowth of the copyright controversies, Mike Godwin’s essay “What Every Citizen Should Know About DRM, A.K.A. ‘Digital Rights Management’”, written for Public Knowledge, is an excellent primer. But my new favorite essay for this task, especially when educating non-lawyers on the subject, is

Healy, Kieran. 2002. “Digital Technology and Cultural Goods.The Journal of Political Philosophy 10(4): 478-500.

Healy’s discussion of the copyright controversy is comfortably situated in the sociological literature on technology, without it becoming a lesson in theory. Like Paul Starr’s The Creation of the Media, he gently puts the focus on how choices made around a technology like the Internet are consequential for the practices that follow, and tend to settle in as norms and arrangements that can be hard to undo, or even recognize, later on:

In this article, I have emphasized the importance of basic choices about the architecture of the Internet, the system of property rights governing it, and the kinds of laws regulating it. These choices will greatly affect how art and culture are consumed, the kind of work that artists can do, and the rewards, financial and otherwise, that consumers, artists and others will be able to reap from the Internet. Yet the success of new technologies tends to obscure the choices made about them. Once the opportunity passes, it can take a great deal of scholarly and imaginative effort to reconstruct just what the alternative possibilities were during a technological revolution. Constitutive choices about digital technologies are being made now. We should make sure we know which — and whose — principles these choices further, before we forget that alternative paths ever existed.

This is not revolutionary insight if you’re in the midst of this literature, but Healy presents it as beautifully as anyone I’ve seen. His discussion of these constitutive choices focuses on three levels: decisions about the architecture of the Internet, the social organization of ther medium, and the symbolic choices of individual users — often scholarship in this area have trouble taking all three of these seriously in the same breath. He also frames the discussion of copyright with a quick attention to other kinds of dilemmas involving the “politics of information”: the problem of how content is located, the “daily me” problems raised by Cass Sunstein, the politics of moderating online discussion, censorship and Internet filtering, and open access publishing. Its a two-page primer on the sociology of technology, a survey course on the sociological issues of digital culture in ten pages, and then a smart discussion of copyright, DRM, the DMCA, and the premise of copy protection.

I will somehow have to catch up with the rest of the bloggers out there, who seem able to hear about, comment on, and get tired of a particular bit of news nearly the instant it happens. But I finally heard about this, and thought it was worth commenting on (thanks to Peter for bringing it to my attention).
In response to the popularity and fawning press coverage of Second Life, a blogger in Vancouver named Darren Barefoot posted a clever parody, called Get a First Life. Borrowing the look and logo of Second Life, he invites users to become part of a “3D, analog world” in which you can “Work. Reproduce. Perish” and even “fornicate using your own genitals.” Knowing the knee-jerk litigious tendencies of most content companies, he solicited both comments and cease and desist letters — usually the legal step when a copyright owner thinks you have infringed on their property. has well documented how eagerly most copyright owners throw cease and desist letters around, using the very threat of an expensive lawsuit to get their way.

Barefoot got something different. In the comment space of his blogpost describing the parody, he got what he calls a “proceed and permitted” letter from Ginsu Yoon, VP and general counsel for Linden Lab, creator of Second Life. In the letter, Yoon acknowledges that Second Life is the owner of the copyrighted material and trademarks that are parodied on Barefoot’s site, that parody is permitted by copyright and trademark law, and that Linden Labs will not sue:

We do not believe that reasonable people would argue as to whether the website located at constitutes parody – it clearly is. Linden Lab is well known among its customers and in the general business community as a company with enlightened and well-informed views regarding intellectual property rights, including the fair use doctrine, open source licensing, and other principles that support creativity and self-expression. We know parody when we see it.

Moreover, Linden Lab objects to any implication that it would employ lawyers incapable of distinguishing such obvious parody. Indeed, any competent attorney is well aware that the outcome of sending a cease-and-desist letter regarding a parody is only to draw more attention to such parody, and to invite public scorn and ridicule of the humor-impaired legal counsel. Linden Lab is well-known for having strict hiring standards, including a requirement for having a sense of humor, from which our lawyers receive no exception.

In conclusion, your invitation to submit a cease-and-desist letter is hereby rejected.

He goes on to offer a nonexclusive license permitting him to use the modified Second Life logo in the t-shirts he sells through the site.

The letter is legit; a reporter from the Seattle Post-Intelligencer asked Linden Labs to comment, got confirmation from their representative. And, it’s an amusing, generous, and refreshing change of pace, where the opposite response has been so predictably and dangerously common.

I want to make one point, somewhat different from the conversations that followed this little event — conversations that mostly focused on saying how great Linden Labs was for doing this, and how rare it is. I’ve been studying the copyright debates for about seven years now, from the beginning (if you count the beginning as the lawsuit against Napster and not, say, the Statute of Anne). But I am still new as a scholar, and this is really the first public controversy I have watched really play out over several years. This little gesture strikes me as a particularly interesting insight into how such controversies can change. One could tell the story of the copyright wars as just that: a protracted battle between intractable enemies. The record labels and the movie studios seem largely unwilling to let go of their hardline position against piracy, and the users of file-trading software continue to take what they want regardless of legal consequences of public condemnation. You could also tell the story in terms of economic compromises emerging: the emergence of iTunes, YouTube, Joost, and others, and particularly the more realistic and financially strategic approach the content companies are taking towards them, suggests there will be some middle ground carved out. I have recently criticized the way that these seeming “compromises” actually accept some of the fundamental positions fought for by the content companies — like the continued use of DRM — but are overlooked as users embrace the services for their convenience and style.

But this letter from Linden Labs suggests to me a third dimension of this changing controversy, one that frankly makes me more optimistic. I don’t know how old Yoon is, I don’t know how old the people at Linden Labs are. But, formed in 1999 to create 3D virtual environments, at least the company itself, and perhaps its key players, grew up amidst this controversy, rather than being thrust into it. Rather than having had some long-held assumptions about copyright and information and culture be challenged by some new technologies and some new views, these technologies and these views have simply always been around. And I believe what we may begin to see is the effect of the mindset of file-sharing, copyleft, Creative Commons, information-wants-to-be-free, web 2.0, open access — not as a new principle, but as the accepted principle. If the people at Linden Labs are not just being strategic (why sue this guy, its a harmless parody, a lawsuit would be bad p.r.) but also generally believe that the circulation of information is good, parody is good, fair use is important, ownership can be loosely held without giving away the pot of gold, then we will soon be in a very different environment in regards to the copyright wars.

As educators, we face this all the time. What still seems a new cultural and political phenomenon to me (be it the Internet, terrorism on American soil, SUVs, organic foods, touch screen voting, bird flu, or cell phones), something that diverged from the norm (whatever I and my generation took that to be) is simply given to our undergraduates, or our kids. And of course my point of reference, in which there was always an environmental movement, space travel, the United Nations, television, the Israel-Palestine conflict, and birth control, were the novel phenomena requiring explanation to the generation or two before me. The email goes around every year: what this year’s entering freshman have always known. Its cute, but it does represent something: what is always there, taken for granted, normal — even if it was and still is controversial — cannot be un-known by the generation that has always known it. And I would argue the same holds true not just for being born into a world marked by certain phenomena, with a particular history already in place, with particular franeworks for understanding available, but coming of age into a particular world, becoming a political citizen in a particular world, beginning a professional life in a particular world. Perhaps our notions of ownership and authorship, of copyright and fair use, of information and its circulation, will change not because we had a fight about it and decisions were made in response, but because those who emerged amidst it see things through a new lens forged in that fight.

(This post was substantially updated on February 28th.)

Democratic Representative Rick Boucher (from Virginia’s 4th district — the fightin’ 4th!) has joined with California Republican John Doolittle to send to the House HR 1201, the “Freedom and Innovation Revitalizing U.S. Entrepreneurship Act of 2007.” Get the acronym? The bill, available at EFF (a thanks to Miguel for pointing this out), is described as an amendment to the Digital Millennium Copyright Act. The DMCA, for those who don’t know, makes it illegal to circumvent technical protection measures that lock up digital content. The DMCA claims that its provisions should not constrain our ability to make fair use of protected content, but evidence plainly suggests that it does. As Boucher’s press release puts it,

“The fair use doctrine is threatened today as never before. Historically, the nation’s copyright laws have reflected a carefully calibrated balanced between the rights of copyright owners and the rights of the users of copyrighted material. The Digital Millennium Copyright Act dramatically tilted the copyright balance toward complete copyright protection at the expense of the public’s right to fair use,” Boucher said. “The FAIR USE Act will assure that consumers who purchase digital media can enjoy a broad range of uses of the media for their own convenience in a way which does not infringe the copyright in the work,” Boucher explained.

This is certainly not new terrain for Boucher, who sponsored similar bills in 2003 and 2005, then titled the “Digital Media Consumer’s Rights Act”. Boucher has been a persistent critic of the “copyright maximalist” approach espoused by the major U.S. content industries and by most of his Congressional colleagues.

Boucher has once again pursued his legislative strategy of cloaking big changes inside of what looks like smaller potatoes. The older versions of the bill cleverly focused on a small issue (requiring CDs with copy protection to be labeled as such) but slipped in two bold statements at the end — that would allow circumvention for fair uses and allow circumvention tools capable of substantial noninfringing uses (a rendition of the Sony standard that many have argued is dead and gone in the Internet age). This time around, the bill claims that it is largely ratifying exceptions to the DMCA already put forth in the rulemaking of the Librarian of Congress and the Copyright Office: allowing users to skip commercials or objectionable content, to transmit content across a home network, to gain access to work that has fallen into the public domain and most recently, allowing librarians and educators to circumvent to make compilations for educational purposes. (Why, thank you. If only I had the legal tools to do it.) The new bill would put these exceptions into law, and add one to allow libraries to circumvent technical protections when an original is lost or damaged.

But in and amidst these exceptions is one that did not appear in the Copyright Office’s rulemaking, in fact one they specifically rejected:

The prohibition contained in subparagraph (A) [of the DMCA] shall not apply to… an act of circumvention that is carried out to gain access to a work of substantial public interest solely for purposes of criticism, comment, news reporting, scholarship, or research

This represents a reasonably serious attempt to put the language of fair use explicitly into the law anti-circumvention. Of course, the DMCA already says it should not inhibit fair use, and this exception still doesn’t deal with the problem of how one might make a fair use if the tools to do so are illegal. But the gesture of saying it out loud as an affirmative protection is arguably a big deal. Interestingly, Boucher’s press release suggests that the bill will does not create a fair use exception — more cover?

The FAIR USE Act differs fundamentally from H.R. 107 and H.R. 1201, as proposed in the 108th and 109th Congresses, respectively, by Representatives Boucher and Doolittle. In an effort to address the concerns expressed by content owners, the FAIR USE Act does not contain provisions which would have established a fair use defense to the act of circumvention.

There is also a provision limiting liability for technologies:

No person shall be liable for copyright infringement based on the design, manufacture, or distribution of a hardware device that is capable of substantial, commercially significant noninfringing use.

Some will argue is a revival of the Sony standard, but notice it only applies to hardware, not software. Problematic.

To focus on ratifing the exceptions already put into place by the Copyright Office seems to me a sign that Boucher and Doolittle want this bill to pass, to seem like mere legislative housecleaning. The bill has the support not only of the American Library Association and the Home Recording Rights Coalition, but also the Consumer Electronics Association and the Computer & Communications Industry Association — perhaps because of the emphasis on technical innovation. The bill may have its best chance yet to pass, though my guess is it’s still unlikely. But would it be a substantive victory if it passed, (at least symbolically) reasserting fair use for the digital age, or a merely pyrrhic one, an empty gesture that again says fair use should be honored, but still not daring to make the tools it would require legal?

In a discussion with students yesterday, with a powerful snowstorm raging outside, the (now quite old) question of real vs virtual came up. This is what happens when you read Julian Dibbell, even if you’re reading him to think about how democratic structures do or do not emerge inside of nascent communities. Do people in online spaces get so immersed that they disconnect from the real world. The question posed was a more interesting one that the typical, because it was focused on political blogging, which is not your classic “virtual” worry, like MUDs or Second Life or, way back when, Dungeons and Dragons in shuttered university corridors. The question was, do people get involved in political blogging, not for the connection to the real political landscape (support this issue, criticize this candidate, sway this election) but for the gamesmanship, the sheer process, the insular back-and-forth: here’s today’s Post editorial, let’s dissect it.

It’s an interesting question, but it also got me thinking back to that old concern about people getting lost in the virtual. And it struck me that a better way to think about it, a way to get past what really was a fear of an unfamiliar technology, is to think about the range of coordinated, social activities we engage in as on a spectrum: from interventionist to escapist. This is not about what the activity is so much as it is about how the pleasure of participating is presented. So participating in that political blog discussion is pitched as vitally connected to the real political landscape; Second Life is offered up as something separate from… an alternative to… a second life. So this is not just the offer of “virtual reality”, it is also the offer made by “murder mystery weekends” and costume parties and even the theater.

This is not to say that people must therefore experience it that way; there may be some who just enjoy the gamesmanship of political blogging, and clearly there are plenty who have turned to Second Life and found not an escape form their mundane experience, but a way to link the two. (I was at the Consumer Electronics Show in Las Vegas this past January with some fellow scholars, and one reported talking to an IBM rep, who described how they often host their bi-coastal meetings in Second Life. And, that there is a naked gnome who takes great pleasure in regularly streaking through their meetings.) Nor are we somehow duped by the illusion, as some fret. But the promise of these activities, along the spectrum of being interventionist or escapist, is a powerful one, especially to those who are trying to comment on it.

Maybe we could add another dimension, similar and often parallel but not the same: instrumental vs immersive. So it is no surprise that the 3D, highly visual environment of Second Life, or of video games, supports this promise of escapism. It is more difficult, though I suspect not impossible, to enjoy such escapist activity when the medium is sparse, when the aesthetics are mundane, when the activity is too reminiscent of the ones we engage in every day.

Which leaves me with a final thought, just to finally put the nail in the coffin to that old, but weirdly persistent worry that those who get too involved in these “virtual” spaces risk losing track of the ‘real” world: the best example I can think of for a escapist, immersive activity, is professional football. Not atching the gamr, but actually playing in it. It offers an alternative reality, where a bizarre set of rules of engament apply and every consents to obey them, it happens inside of a space entirely designed to make visible and confirm that world, to take you out of your real life, it offers no promise that engaging in the activity has any impact on the real world, only on the constructed world of professional football itself (the season, the rankings, the playoffs, etc.) They even wear costumes. Yet we do not worry that football players will “lose” themself in the game. In fact its seen as a legitimate thing to do, something we urge our high school kids to join in. I suspect that play in virtual environments will eventually shed these connontations and concerns — they’re already diminshing, especially around online environments and video gaming — and settle in as fanciful, escapist, but not psychologically seductive, activities.

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