So the opening evening of IDFA 2009 was a bit of a disappointment (if you do not count new insights regarding the size of mice living in Tuschinski and the esthetic co-dependancies between skimpy dresses and high heels). For some rather dubious reason (must be the general obsession with the fact that the berlin wall came down 20 years ago) ‘War Games And The Man Who Stopped Them‘ was chosen as an opening film.

This turned out an really self congratulatory cold-war warrior biopic about a polish colonel who (with a little help from his friends at the CIA) claimed to have more or less singlehandedly brought the entire Warsaw pact to it’s knees. If we are to believe the movie he did this by providing the CIA with over 40.000 documents detailing russian strategy for attacking Western Europe. Conveniently not a single of these 40.000 documents was shown during the course of this ‘documentary’.

Instead we got to see lots of former CIA agents saying nice things about the CIA and the Polish colonel, and lots of former Warsaw pact military and intelligence officials saying nice things about the Warsaw pact and not so nice things about the Polish colonel. As far as the sources are concerned i can hardly imagine less selection than relying exclusively on (ex)intelligence officers.

Throw in lots of shots of the widow of the Polish colonel browsing through photographs of the Polish colonel when he was looking good being young-and-in-uniform plus lots of unrelated shots of sail boats and you have a perfectly meaningless film.

If this is not bad enough, i would not be surprised if the entire film was commissioned by the CIA. If i was part of their public relations department this kind of cold-war-porn would be very welcome in order to distract from the fact that since they have brought down the wall (with the help of the Polish colonel) the CIA has mainly been busy using these newly freed countries to run torture prisons in upscale horseback riding schools.

In november 2007 i added the following entry to the ‘meanwhile at the borders…‘ page on noborder.org:

29.Oct.07: The bodies of 12 migrants were pulled from the water at a beach near the city of Syracuse on Sicilys eastern coast. Seven survivors were found on shore and two others were considered missing. (Update: by 6 november 4 additional bodies had been found bringing the total dead count to 16 (source: reuters AlertNet)

This month i spend a week of vacation on that same eastern east cost of Sicily and one day, while going for a swim (just north or Marzamemi, which is 45 minutes by car south of Syracuse), we ran into this sign:

the sign reads: ‘At this place in Contrada Cittadella on the tragic night between October 27th and 28th 2007, a rubber dinghy in which 37 Palestinian and Egyptian refugees who were being transferred from a larger ship by unscrupulous people traffickers had set off from a harbor in Egypt , capsized in a furious sea in its attempt to reach Europe claiming 16 victims. We remember the Egyptians: KHALED ABD ELHAMID MOHAMED ABD ELAZIZ (04.05.1985), TAREK ABD EL GHANY MOHAMED ATTIA ( 01.02.1983), IHAB MOHAMED TAHA ABD EL AZIZ ELESAWY (* 08.11.1978), MOHAMED TOLBA ABD ELMOTAI AB ABD ELRAHEM (* 19.09.1988), ESAM MOHAMED ABDEL SADEK (* 05.12.1977), MOHAMED EID RAMDAN (* 08.08.1989), AHMED RAMADAN NEMR RAGAB (* 08.04.1985), EID MOHAMAD SHABAN (* 01.06.1970), IBRAHIM AHMAD SHABAN (* 06.07.1972), ALI AHMED SHABAN (* 10.11.1987) ELSAYED SAAD ALI (* 03.01.1970), REDA ALI ELSAYED (* 05.12.1979) and four unknown Palestinians. We mourn them as well as the thousands of other human lives list since 1992 as a result of the closure of the European continent to those people forced to flee their country’.

Unfortunately the sign does not provide any clues with regard to who actually put it up (and thus who it is who is mourning these deaths) which would be interesting to know.

Shipping disasters involving undocumented migrants trying to reach Europe are relatively commons on this particular stretch of the Sicilian coast. The most deadly of these took place on christmas eve 1996 off the coast of Portopalo di Capo Passero which is situated 12 kilometers to the south of this particular spot. Interestingly there is no memorial for the almost 300 migrants who lost their life when the fishing boat that was supposed to bring them to shore collided with the cargo ship that had brought them from Greece (unless you are willing to count the Stella Maris statue off one of the small beaches as a tribute to those unfortunate souls).

Just came across this brilliant foto while reorganizing my photo folder (i am locked away in a museum basement without any form of internet access: no wireless & no mobile phone reception):

I took this at a stall selling bootleg CDs at the Kwakoe Festival in Amsterdam southeast in the summer of 2006. To me it perfectly captures the essence of the revolution caused by napster when it launched 10 years ago (give or take a couple of weeks): If your work is not available on napster is is probably not good either. accept to be copied or become irrelevant.

Given that this has been going on it is stonishing how few people seem to have understood that this basic shift in how we relate to cultural goods has already happend….

Over the last year or so Sara (together with Suzanne Valkenburg and Eefje Blankevoort) has explored the world of vacation parks in the Netherlands. Many of these parks that had originally been designed for dutch families to spend their summer vacations have – over the years – attracted new types of temporary and permanent residents: Kenyan athletes competing for price money in dutch running events, Afghani refugees, African agriculture students, Dutch drop outs and polish contract workers and their families. Slowly these vacation parks have morphed into an almost invisible buffer zone, assigned to those people that mainstream society attempts to keep out of sight.

The website www.beloofdeland.org (‘het beloofde land’ (‘the promised land’) is the name of one of these parks) documents 5 of these vacation parks through video, text and photo’s, contrasting their current status with archival material from times when these places where the unchallenged territory of families on vacation. Installations based on this online documentary can be seen in the context of the Made in Arnhem exhibition (from 12 september until 25 october), in the Open Air Museum Arnhem (inside a 1950s vacation house by dutch architect Gerrit Rietveld – from 13 september until October 27th) and in De Verdieping in Amsterdam (from 26 september – October 4th).

Yellow suzuki swifts issued to polish temporary workers by their temp-working agency ‘Exotic Green‘ in front of vacation homes in Patersven/Zundert (foto: Suzanne Valkenburg).

You might have heard that the Wikimedia Foundation and the National Portrait Gallery arehavinga bitof arow these days. At the core of the dispute lies the fact that in march an English wikipedia administrator by the name of Derrick Coetzee uploaded more than 3000 high resolution images of paintings held by the National Portrait Gallery to the Wikimedia Commons.

The images uploaded by were not simply taken from the NPG’s website and re-uploaded to the wikimedia commons, as the NPG does (and did) not provide high resolution images files on it’s website. While the NPG website only offers relatively low resolution images (see this page for a typical image provided by the NPG and this page for the high resolution version uploaded by Coetzee), Coetzee managed to use the website’s zomify feature (now disabled) in order to obtain the high resolution files and subsequently uploaded them to the Wikimedia Commons.

While the NPG does not dispute that the original paintings are in the public domain, it argues that Coetzee’s action violates a numer legal regimes that give the National Portrait Gallery the exclusive right to determine how these reproductions are distributed. According to an email send by the NPG’s law firm to Coetzee his actions constitute an Infringement of the NPG’s copyright in those images as well as an infringement of the NPG’s database right (in the database populated by these works). In addition the NPG argues that Coetzee’s actions constitute an unlawful circumvention of technical protection measures (even though zomify clearly states that zomify is not an image security system) and breach of contract. While all of these are serious allegations (the last one is a bit silly if you ask me) the current debate very much centers on the question if the National Portrait Gallery should have a copyright regarding these images. In a post on boingboing.net Cory Doctorow lays out why this is such a fundamental question:

In Britain, copyright law apparently gives a new copyright to someone who produces an image full of public domain material, effectively creating perpetual copyright for a museum that owns the original image, since they can decide who gets to copy it and then set terms on those copies that prevent them being treated as public domain.

Regardless of the fact that this is obviously problematic the general consensus seems to be that under British copyright law the NPG does indeed hold a copyright in the photographic reproductions (because the making of the reproductions of these paintings required a significant expenditure of labour) while under US law (the wikimedia foundation is based in the US) it does not.

So on one side we have the NPG claiming that it’s copyrights have been violated and that Coetzee/Wikimedia should therefore remove the high res-images from the Wikimedia Commons and on the other side we have Coetzee (backed by the Wikimedia Foundation, many wikipedians and Creative Commons) claiming that these images belong to the public domain and do not need to be removed. The wikimedia foundation’s Erik Möller has outlined this position in on the Wikimedia Foundation’s blog:

The Wikimedia Foundation has no reason to believe that the user in question has violated any applicable law, and we are exploring ways to support the user in the event that NPG follows up on its original threat. We are open to a compromise around the specific images, but our position on the legal status of these images is unlikely to change. Our position is shared by legal scholars and by many in the community of galleries, libraries, archives, and museums. In 2003, Peter Hirtle, 58th president of the Society of American Archivists, wrote:

“The conclusion we must draw is inescapable. Efforts to try to monopolize our holdings and generate revenue by exploiting our physical ownership of public domain works should not succeed. Such efforts make a mockery of the copyright balance between the interests of the copyright creator and the public.” [source]

Some in the international GLAM [pk: Galleries, Libraries, Archives and Museums] community have taken the opposite approach, and even gone so far to suggest that GLAM institutions should employ digitial watermarking and other Digital Restrictions Management (DRM) technologies to protect their alleged rights over public domain objects, and to enforce those rights aggressively.

The Wikimedia Foundation sympathizes with cultural institutions’ desire for revenue streams to help them maintain services for their audiences. And yet, if that revenue stream requires an institution to lock up and severely limit access to its educational materials, rather than allowing the materials to be freely available to everyone, that strikes us as counter to those institutions’ educational mission. It is hard to see a plausible argument that excluding public domain content from a free, non-profit encyclopedia serves any public interest whatsoever.

I completely agree with the position taken by the Wikimedia Foundation here. It should not be possible to monopolize public domain works by obtaining copyrights in simple (or even complicated) reproductions of these works. Once the copyrights in the original works have expired those who formerly held the copyright or those who happen to own the physical works should not have any exclusive right to determine what third parties can do with reproductions of these works. As far as i am concerned this is one of the fundamental principles of the public domain which cannot be pushed aside by museums in search of online business models¹.

However i have the feeling that this principle is not the only thing that should be considered in the current dispute. It is likely that in this particular case the National Portrait did not knowingly publish the high resolution photos of these portraits:

Assuming a certain level of technological ignorance on behalf of the NPG it is fairly safe to assume that they thought they where only making available 500 * 400 pixel images and allowed users of the website to see 500 * 400 px sections of the paintings in high resolution. Before Coetzee proved them otherwise the NPG probably never realized that this meant that the entire high-res files needed to be on a web-server somewhere².

Does the public domain status of the original paintings requires the NPG to make available the high-res photos? As far as i can see not. The public domain status of these paintings means that nobody has the right to control their reproduction and publication of reproductions anymore, but it does not mean that all reproductions of these pictures must be freely distributed. Just as i can take a photo of a public domain work and keep it for myself the NPG can decide to take these pictures and then keep them for whatever they please to do with them³: There simply is no right of access to public domains works or their reproductions.

If you consider this it is a little bit easier to understand the position of the NPG. They never knowingly published the high-res versions of these images and all of a sudden they appear on Wikipedia and there does not seem to be a way to control their distribution anymore. At this point it is very much a theoretical question if the NPG has a right in these images or not because the images are out on the net and there is absolutely no way for anyone to regain control over them ever again (regardless of how the legal dispute will end).

However it is important to note that before these images got out onto the net the NPG did not try to control their distribution by asserting copyright but simply by not making them available, knowing (one assumes) that once they were available their copyright claims would be without much effect no matter how much these are backed by British law.

Given all of this i do think that it will be counterproductive to use this particular case in order to defend the principle that there should be no right of exclusive control over the distribution of reproductions of public domain works (as the blog post by Erik Möller implies). Instead this dispute is really about access control to these files.

If one is really interested in working on getting as many good quality reproductions of public domain works online then it is necessary to work with cultural heritage institutions by convincing them that making available these files without restrictions is in the best of their interest (as a number of Wikipedia volunteers argue in this excellent open letter).

Working with cultural heritage institutions means that contributing to repositories of freely licensed and public domain works such as the Wikimedia Commens should always be based on conscious and voluntary decisions by those in a position to make material available⁴. There is a growingnumberof examples of such behavior and it is probably only a question of time (and hard work on behalf of wikipedians) before more cultural heritage institutions recognize that making available their collections rather than keeping them locked away in search of marginal income from licensing[5] is more likely to strengthen their position in the digital environment.

It might very well be contra-productive to insist that the images obtained by Coetzee are not ‘protected’ by copyright as this is likely to make cultural heritage institutions feel even more threatened by public domain advocates. Instead this energy should be focussed on convincing cultural heritage institutions that it is in their best interest to to make their collections available as open as possible.

This is by far the most repulsive patent application i have ever seen. Apparentlyamazon.com has filed for a patent for showing contextual ads in the margins (also called white space for a good reason!) of e-books…

I have always had an unspecified strange feeling about Tribe of Noise. Tribe of Noise is an Amsterdam-based online music platform that allows musicians to upload and share their work as long as they agree to make it available under a Creative Commons Attribution ShareAlike license (CC-BY-SA). Simply put this license allows everybody to redistribute the songs on the platform, make remixes of them and redistribute these remixes under the same licensing terms. In all cases credit needs to be given to the original artist(s). It explicitly allows for commercial (re)use of the licensed works and it is one of the least restrictive Creative Commons licenses (and the license that has recently been chosen by a huge majority of wikipedia editors to apply to all text on wikipedia). I like this license.

I am writing this (rather long) text because I have come to the conclusion that the way Tribe of Noise uses this license is confusing to people contributing to the platform and can in the end be harmfull for the reputation of the Creative Commons Attribution ShareAlike license and the Creative Commons licensing model as a whole.

Even though i have endorsed Tribe of Noise back when it was launched (something i should have never done and which i am obviously retracting by writing this) the exclusive choice for the CC-BY-SA license made by Tribe of Noise never felt in line with the way the Tribe of Noise (TON) chooses to present itself: It is an aggressive start-up and the founder (and selfdeclared ‘Chief of Noise’) Hessel van Oorschot aggressively markets it as such. They have been quite successful in getting media attention and have known to attract a substantial number of artists to their platform (at the time of writing there are 5878 members). The platform is promoted to artists as a way to get in contact with commercial users of music.

I have met with Hessel on a number of times in the past and among others i have invited him to the ‘Filesharing: Up or Down?‘ discussion that i organized at de Balie in Amsterdam in the wake of the Pirate Bay trail and the publication of the Ups and Downs study on the economic impacts of file sharing. That evening Hessel explained that one of the components of the Tribe of Noise business model is to license (for a fee one assumes) the music repertoire posted to Tribe of Noise to video hosting services so that they can use it in services like youtube’s audio-swap or offer the music to video makers that are looking for copyright un-encumbered music tracks to use in their videos.

However, such a business model is rather difficult to carry out based on the rights granted by the CC-BY-SA license. One of the key features of this license is that it requires derivative works of the original works to be licensed under the CC-BY-SA license as well (the share alike mechanism). This means, that every time a work licensed under a BY-SA license is integrated into another work (or the other way around) the resulting work needs to be distributed under a the CC-BY-SA license as well. If a video maker uses a short snippet of CC-BY-SA licensed music in a (long) video that is otherwise completely made by herself she needs to release the entire video under the CC-BY-SA license or she is in breach of the license (and thus infringing on the copyright of the musician in question)¹. This means that CC-BY-SA licensed music is pretty much useless for purposes like sound-swap unless the provider of the service intends to force the video makers to use a CC-BY-SA license themselves.

Given this Tribe of Noise probably has a hard time selling the repertoire uploaded to the platform to video hosting services (at least as as long as you assume that they would base these transactions on the CC-BY-SA licenses granted by their uploaders².

Back in April i did not really notice this contradiction. Tribe of Noise came back to my attention two weeks ago when i read about a Creative Amsterdam Award they had won at the ‘Creative Company Conference‘ in Amsterdam:

[…] The runner up, Tribe of Noise, was also given an honorary mention for their brilliant concept of music library in which creative commons licence (sic!) could be used for commercial purposes.

The fluffy language in the conference summary triggered my interest. What exactly is so brilliant about Tribe of Noise’s concept? Given the characteristics of the CC-BY-SA license explained above i failed to see how there could be a ‘brilliant concept of music library in which Creative Commons license could be used for commercial licenses’. Sure there are three CC licenses that allow for commercial use of the licensed works but it is hardly brilliant to allow people to upload content to your platform under one of them.

Given the limitations of the Attribution Share Alike license outlined above, one is inclined to assume that there are other parts to the business model that allow it to function and looking at the terms of use of Tribe of Noise it quickly becomes apparent that the business model of Tribe of Noise is not based on the rights granted by the uploaders via the Creative Commons licenses. Instead it relies on a much broader (and much less advertised) non-exclusive license granted to Tribe of Noise. Section 9 of the ToN terms of use, that you have to accept when you open a tribe of noise account contains these two sub-clauses:

1. Licenses Granted by the User

9.1 If you upload any content to Tribe of Noise or post any content on the Website, you grant:

1. a worldwide, nonexclusive, royalty-free, transferable license (with the right to sublicense) to Tribe of Noise for the use, reproduction, distribution, demonstration, making available to the public and performance of, and creation of derivative works from, that content in relation to the provision of the Services, and otherwise in relation to providing the Website and in relation to Tribe of Noise’s business operations, including the promotion and further distribution of all or part of the Website (and works derived from the Website or part thereof), in whatever media-format and through whichever media channel, now known or hereinafter invented;
2. andto every user of your work on the Website the following Creative Commons license: CC 3.0 By – Share Alike.

What is of interest here is the first of these two clauses. It essentially grants Tribe of Noise the (non-exclusive) right to do whatever they want with the uploaded music. For example they can sell (non-exclusive) licenses to third parties without having to pass on parts of the revenues generated to the musicians that have uploaded the music. Also Tribe of Noise can allow third parties to do whatever they please with the music that has been uploaded to the platform (without having to require them to give attribution or redistribute derivative works under a CC license). In short, by uploading a work to Tribe of Noise the artist grants Tribe of Noise a very broad license that allows them to commercially exploit the work while not getting any right of compensation in return³. In the same section of the terms of use the uploaders also grant all users of the Tribe of Noise platform the right to use the uploaded works under the Creative Commons Attribution ShareAlike license.

This dual license grant is nothing that is specific to Tribe of Noise. Almost all web platforms ask more rights in the content uploaded by their users than what uploaders are willing to grant to the general public (see for example the terms of use of youtube which are very similar to those of ToN). Some services (jamendo, blip.tv) specifically ask for the right to grant commercial licenses to third parties or run ads in connection with the content but in return they promise to share the revenues generated through such transactions with the uploaders, which Tribe of Noise does not do.

Having users agree with terms of service that include such an unbalanced license grant can hardly be called a ‘brilliant business concept’ and definitely has noting to do with ‘using a Creative Commons use for commercial use’: Looking at the Terms of Use of Tribe of Noise one has to conclude that using a Creative Commons license has nothing to do with subsequent commercial exploitation of the uploaded works by Tribe of Noise as the commercial exploitation is enabled by the parallel license grant to Tribe of Noise.

Even worse, i get the impression that Tribe of Noise uses the Creative Commons licenses in order to hide the fact that they are indeed trying to obtain a much wider license grant from the members of the platform. Apart from the above quoted section of the Terms of Use there is no mention of the additional license grant to Tribe of Noise on their website. Certainly not in the FAQ or the more info movie aimed at musicians (the two places where one would expect to find information about what rights are granted by simply uploading a work). Instead, in the video with more information for artists, Hessel van Oorschot states that they have solved a ‘legal challenge of sharing music with companies’ by using the CC-BY-SA license⁴:

[…] sharing music with other musicians and companies around the globe and getting more attention that is a legal challenge. But we came up with a solution so let me know how it is done on tribe of noise: Sharing music online even for commercial purposes is legal!! with help from legal advisors laywers (sic!) and creative commons!! Creative Commons Attribution Share Alike 3.0 Unported⁵.

Of course Tribe of Noise is free to ask their users for whatever license grants they want (and one could imagine that some artists do not object to give away the right to commercial use in exchange for exposure of their work on Tribe of Noise). However one would assume that a site that states ‘Tribe of Noise means music and respect!‘ openly informs its uploaders what rights they are granting to the platform in exchange for being allowed to upload a work to the platform. Hiding such information in the legalese of the Terms of Service does not really show respect for the musicians using the platform.

First of all this is objectionable because it relies on the lame old trick of hiding stuff in the Terms of Use that one has to click though during a registration process and then using a CC licenses in order to imply that the site does respect everybody’s rights. However, the conduct of Tribe of Noise is also objectionable on a more profound level as it shows that the team behind Tribe of Noise apparently thinks that it is ok for them to make commercial deals with works authored and performed by other people without reimbursing them for such uses. While writing this i have asked Hessel van Oorschot if Tribe of Noise has a revenue sharing model in place and he has responded that they will certainly start working on a honest sharing mechanism. If such a revenue sharing mechanism gets introduced to the platform in the future that is certainly a step in the right direction but it does not aliveate my other point that Tribe of Noise is far from transparent when it comes to dealing with the copyrights of the members of the platform.

Have been spending the last 2 days in Torino for a succession of workshops and conferences, and have used my spare time to revisit some of the places that here we had planned to install the expertbase during the big torino biennial back in 2002 (before we were kicked out of the exhibition). Seems that those parts of the city that we were working in have remained relatively unchanged by the construction madness caused by the 2008 winter games.

However it appears that there has been a change among the migrant street hawkers selling all kinds of goods on the streets of the city. It appears that this trade has been taken over by Indian migrants that have replaced the Senegalese migrants that were all over the place back in 2002. However they still seem to operate in the same networked fashion that i observed back in 2002. On friday evening there was a brief (and relatively unannounced) thunderstorm, and all the street sellers were conveniently offering umbrellas:

I talked to one of them under the arcades of via Po and he confirmed that they do receive advance warnings that bad weather is coming from migrant street sellers in other cities. This enables them to anticipate on the type of merchandise they are offering (and provides a very convenient weather forecast).

Last Wednesday I attended the launch of ‘Adieu auteursrecht, vaarwel culturele conglomeraten‘ the new book by Joost Smiers. In this book he argues that (a) copyright is harmful, because it has led to large conglomerates dominating the production of culture and that (b) the world would be better off without copyright because it would be better of without these conglomerates and therefore (c) copyright needs to be abolished and the conglomerates must be broken apart. According to Smiers and his co-author Marike Schijndel this will lead to a level playing field for artists and other cultural producers and result in both a more diverse culture and better abilities for artists and cultural producers to live off their work.

Now I have not read his book yet, but I have listened to Smiers for a number of times, and he always looses me at the point where he assumes that the absence of copyright and conglomerates will quasi automatically lead to a more just distribution of attention and wealth among artists and cultural producers.

Regardless of his rather haphazard line of argumentation the public at the Balie seemed to like his ideas a lot (not really surprising since just about everybody can agree on the fact that the current copyright system is not working very well in ensuring that artists can live of their work, and the public that frequents these kind of events sure loves to see the blame laid on American cultural conglomerates) and there was no real discussion about the validity of his analysis or the nature of the ‘new business models’ that Smiers and Schijndel predict to emerge once we have gotten rid of copyright and the conglomerates (the last one being a bit of a shame).

During the non-debate (you were assumed to argue form a the perspective of a society without copyright and conglomerates) a number of people came up with arguments against copyright that were based on a variation of the argument that copyright restricts dialogue and is therefore a constraint on artists practices.

This argument is very much in line with a recent paper¹ by the Canadian copyright scholar Abraham Drassinower. In ‘Authorship as Public Address: On the Specificity of Copyright vis-a-vis Patent and Trade-Mark‘ Drassinower makes the argument that “copyright is not about copying, pure and simple” [p.205] but rather about the right of an author to be associated with his work. Or to put it in Drassinowers own, more legalistic language:

Thus, copyright is less an exclusive right of reproduction than an exclusive right of public presentation. [p.221]

Drassinower arrives at this conclusion by examining the differences between copyright law, patent protection and trademarks. From these differences he tries to distill which particular kind of wrongdoing copyright law sanctions and tries to prevent. According to Drassinower this is not the simple unauthorized use of the a copyrighted work by persons other than the author or his agents, but a very specific form of use:

Put in terms of copyright doctrine, we need to understand (1) that originality is not about the absence of use, (2) that fair dealing is not about the absence of originality, and (3) that therefore originality and fair dealing are not opposing impulses or exceptions to each other, but rather radically continuous and integral aspects of copyright law as a whole. The fundamental problem is that of grasping the nature of the continuity. […] Thus, copyright is less about a prohibition on copying per se than about a distinction between permissible and impermissible copying—that is, between saying things in one’s own words and merely repeating the words of another. Authorship is less about the absence of copying than about the cultivation and exercise of modes of imitation that amount to more than mere repetition. Copyright law can no more prohibit copying per se, than it can prohibit authorship. [p.208-9]

According to Drassinower the fact that copyright law regulates cultural production which he (and many of the participants in the discussion following the book launch in the Balie) sees as a form of speech (or dialogue) means that copyright law can’t exclude others from using protected works as part of their own engagement in this dialogue: “… Persons are entitled to use the works of others provided such use is consistent with the equal authorship of those others” [p.213]. According to this conceptualization of copyright law no harm to the original author is done as long as I do not present someone else’s work as my own work, but rather use it in a way where it is instrumental to my own undertakings.

This gets more interesting once Drassinower expands this argument and applies it to other types of activities regulated by copyright law. In the 2nd part of his paper he applies his concept to copying in the digital context and comes to the conclusion that the mere making of digital should not trigger copyright law, since it rarely happens in order to communicate the copied works as a work:

The distinction between the reproduction of a work in the physical sense and its reproduction as a work in the normatively relevant sense is also at play in the ongoing encounter between copyright law and digital technology. It is generally accepted, for example, that Internet browsing— which requires the making of temporary copies—is legal on the grounds that by posting the work online, the poster is granting an implied license to others to reproduce that work in order to view it. […] Whereas the implied license and public interest approaches more or less successfully cloak the rupture between copyright law and digital technology, the authorship as public address approach interprets the legal significance of technology from the viewpoint of a renewed understanding of the law – that is, of the nature of the right and wrong at issue. Because it dislocates the centrality of reproduction as the organizing principle of copyright law, the authorship as public address approach can find that the reproductions involved in browsing and caching do not amount to uses of the work as such. Instead, since browsing and caching² are neither implied licensing nor public interest exceptions, they constitute user rights precisely because they amount to non-authorial use. [p.227]

While Drassinower’s paper is somewhat complicated and lengthy³ I do think that his approach is well suited to bring copyright law back into line with reality: In a time where copying is one of the most basic cultural technologies it is more and more absurd (and inefficient) that copyright law even attempts to regulate the mere making of copies. The beauty of Drassinowers argument is that he does not depart from this observation but rather arrives at the conclusion that copyright law cannot be about the regulation of copies by looking at the balance between user and author rights. By framing the subject matter of copyright as ‘dialogue’ between author/users and user/authors he saves copyright law from falling prey to the explosion of everyday copying.

Last friday’s edition (‘three baby camels‘) of the NPR planet money podcast contains a wonderful nugget about the economical aspects of how to determine the amount of ransom money that is to be paid to somalian pirates in order to get a hijacked ship back.

The story is based on the negotiations a Danish shipping executive (Per Gullestrup) conducted with someone representing a gang of Somalian pirates (Mr. Ali). The problem both parties are facing is that there are no other buyers or sellers for the merchandise (the hijacked ship) who would provide them with clues about the market price in markets with more sellers or buyers (in economics this situation is called a monopolist monopsonist bargaining problem).

In this situation exchanging information (with fellow pirates or fellow ship-owners) about prices paid for the release of other ships is one of the very few ways of speeding up the often time-consuming process of finding a price that is acceptable to both the seller and the buyer. According to Per Gullestrup the pirates are fairly good at that while the ship-owners are not (emphasis mine):

The owners are escalating the ransom payments because they are not really coordinating how they deal with pirates. The pirates on the other hand are extremely good at sharing information. And we know for a fact […] that they so have piracy workshops, that the pirates are actually meetings ashore and exchanging information.