The ophan works comment period from the U.S. Copyright Office has closed. The comment submitted byFreeCulture.org is available in below, or here in PDF. It’s not as formal as, say, Public Knowledge’s comment, but we hope it will be of use to the Copyright Office and to legislators. The Copyright Office should make all submitted comments available on their Web site soon. There is a reply comment period as well, which ends at 5 p.m. EST on May 9, 2005.

Thanks so much to everyone who took the time to submit a comment.

FreeCulture.org’s comment follows:

Read the rest of this entry »

It’s not a term paper, but it could be more important: the orphan works comment period ends this Friday, March 25. Please take a moment to submit. See OrphanWorks.org for more information.

If you’re stumped for something to say, have a peek here to see what some others have said.

Please tell everyone you can: the more people the Copyright Office hears from, the more they’ll know that the public wants a solution. You can use this form to send an email to your friends. Just fill in a personalized intro — we’ll do the rest:

Just a friendly reminder.

Senator Orrin Hatch (R-Utah), author of the now-defunct Induce Act and powerful supporter of the entertainment industry, has been named the head of a new subcommittee on intellectual property.

While some of the goals of the committee seem beneficial (like addressing concerns about phishing, pharming, and other forms of electronic fraud), there are already indications that committee’s efforts to protect the content industry and big business may come at the expense of technological innovation:

In a statement, Hatch declared that the panel would have an “aggressive agenda” and highlighted the issue of patent reform, saying, “We need strong patent protection to give incentives for innovation and economic growth.”

Hatch has consistently espoused expansion of copyright protections, especially to curtail file sharing of copyrighted material. During a June 2003 Senate Judiciary Committee hearing on copyright abuse, he even suggested that copyright enforcement should include the destruction of private property:

If we can find some way to do this without destroying their machines, we’d be interested in hearing about that. If that’s the only way, then I’m all for destroying their machines. If you have a few hundred thousand of those, I think people would realize the seriousness of their actions.
[About.com]

Although he later tempered his comments by saying that extreme action would be necessary if no moderate action could be found, there is little doubt that his attitude toward copyright policy and corporate pandering will carry over into this new-formed committee.

However, as long as campaigns like Save the iPod deliver incisive blows to bad pieces of legislation, and as long as consumers and citizens voice their rights and interests, then terrible decisions by our lawmakers can always be reversed.

After all, part of the reason why legislation like the DMCA passes is that the average citizen and generally most Senators and Congressmen don’t understand how damaging anti-infringement/anti-piracy laws can be to other facets of technology. Or that more reasonable patent laws, instead of more stringent ones, can be enacted without hurting businesses and the economy. And the list goes on. So Free Culture advocates, keep a lookout and be sure your voices are heard!

On March 13, news organizations across the United States will participate in “Sunshine Sunday” by running stories and editorials in support of public access to government information. But professional journalists aren’t the only ones.

FreeCulture.org is organizing “Blogshine Sunday” on the same day to ensure that government remains accessible to tomorrow’s journalists. We’re encouraging bloggers throughout the U.S. and beyond to spotlight their own experiences with obtaining access to government documents.

Recent events, from the OPEN Government Act to Apple v. Does, make this more important than ever. Equal access to government access is a key step in putting new journalism on equal footing with the old guard. Specifically, Blogshine Sunday aims to make these two points:

• In an increasingly wired society, government documents need to be digital and online, not just buried in archives.
• “Professional” journalists are not the only people who deserve access to our government — everyone does.

Please join us by writing in your blog on Sunday. Visit blogshine.org for more information.

Feel free to use one of these buttons to link.

A press release is available on the Blogshine blog, or in PDF or ODT.

Imagine you’re driving on a toll road. Approaching a tollbooth, you stop — but there’s no one inside.

Who do you pay?

Toll roads make a bargain between the public and the people who built the road: “In order to build a new road,” the public says, “We agree to pay tolls on it, for a limited time, until the road is paid for.” The efficacy of the model relies on people paying the tolls. Now, you try to do the right thing. Besides, you could get in trouble if you go ahead without paying the toll. But what do you do when you can’t find the toll collector?

This situation happens every day in the world of copyright. Without getting too thick into the boring stuff, U.S. copyright law is constructed in a way that sometimes make it difficult or impossible to find the copyright holder for a given work. Often, the copyright holder may be out of business or dead. Even if you know who holds the copyright, it may be very hard to find out how to contact them. In most cases, the law says you can’t use these works without permission from the rightsholder, but how do you get permission if you don’t know who to ask?

These are “orphan works.” They may be music, literature, film, photography, software — anything governed by copyright. Whether you want to re-print a book, use archival film footage in a documentary, or upload a video game to your Web site, they have no one standing at the check-out counter. New creations can’t go forward and copyright holders can’t get paid — everybody loses.

Copyright law is supposed to promote progress, but this legal roadblock creates a drag on new innovation and business, grinding progress to a halt. The tollbooth was an inconvenience, but orphan works are a nightmare for free speech and economic growth.

But today, you have an excellent opportunity to help solve it. FreeCulture.org is proud to announce — if a little behind schedule — OrphanWorks.org.

On January 26, the U.S. Copyright Office issued a notice of inquiry into the orphan works dilemma. In other words: the government has explicitly asked for our help. They want to hear from legal scholars as well as regular folks.

Ordinary people can and have used this process to affect government policies. Two recent examples include a 1998 comment period by the Department of Agriculture on its definition of “organic” foods and 2004 comment period by the National Weather Service on the use of an XML format for publishing weather data. The government is listening.

OrphanWorks.org — a joint project of the EFF, Public Knowledge, and FreeCulture.org — is a submission form so anyone can easily submit their comment online. Use the form on OrphanWorks.org to submit comments directly to the Copyright Office — just type, and we’ll take care of the formatting and submission.

The Copyright Office specifically asked for comments from people who have run into the orphan works problem — either in a new creative effort or in making the work available to the public once again — so if you’ve been there, we especially need to hear from you. If you’ve never been in that situation, but simply think it’s a problem, please submit and tell the Copyright Office so. You may have never seen it, but the orphan works loophole means consumers have fewer choices: you lose out on new creativity or scholarship that you never even knew existed.

The comment period is open until March 25, 2005. Please stop by OrphanWorks.org and submit a comment with your experience, with your support, or with a solution.

Before OrphanWorks.org, FreeCulture.org had our own submission form which was never quite done, but which people used anyway. J.C. Jones, its programmer, reports that forty-some people submitted using our form. Of those, 20 permitted us to make their comment public before the end of the comment period — you can read them here. The topics range from Depression-era radio shows to abandonware video games to family wedding photos.

I’m proud to be able to play a role in giving people an opportunity to improve their world. I hope you’ll join us. Please submit.

Update: The comments submitted via our form have been mentioned on Boing Boing and Copyfight. Pass it around: the folks who wrote these comments aren’t lawyers or professors, just people who’ve been harmed by their own laws — and they’re speaking up to try to improve things. Isn’t that what democracy’s about?

Creative Commons recently recognized the contribution FreeCulture.org has made to the free culture movement in general and Creative Commons in specific by creating a paid internship just for members of Free Culture groups! If you are a member of a FreeCulture.org-affiliated campus group, then you are eligible for the “Free Culture Marketing/Media Internship” at Creative Commons’s offices in San Francisco.

If you wish you had a shot at exclusive FreeCulture.org deals like this one, then start a club on your campus today!

Free Culture Marketing/Media Internship
This internship is open to students involved in their colleges’ Free Culture club. Creative Commons is currently accepting resumes from those students interested in interning in the San Francisco office. This paid internship will focus on a grass roots effort, and/or media development to encourage the reuse of content. Duties will also include working on a “street team” campaign to other Free Culture club members.
This position will be offered to a non-law student.

Internship terms:

• Spring: Mid-January through late April
  Applications should be sent between October 1st and December 1st
• Summer: Late May through August
  Applications should be sent between January 1st and April 1st
• Fall: Mid-August/early September through December
  Applications should be sent between July 1st and August 31

Compensation

Creative Commons does offer compensation for internships. If your school offers a stipend for internships, this factor is figured into the compensation.

How to apply

If you are a student interested in our internship program, send us your:

• Cover Letter
• Resume
• Two References
• School Transcript (optional with your application, required at the interview)
• Writing sample (optional with your application, required at the interview)

Applications and questions can be sent to:
Francesca Rodriquez
Office/Project Manager
francesca@creativecommons.org
fax: (415) 946-3001

The EU council has adopted the Directive on the patentability of computer-implemented inventions, breaking the democratic ideals and possibly a few of its own rules in the process. The story at Groklaw begins by saying, “Don’t ask me to explain it, because I can’t.”

The EU software patent directive passed through the council as an A item which does not allow for debate on the subject and is usually used when there is a general consensus.

This also means that the parliament has to vote with a 2/3 majority against the directive in order for it to not become law. Any abstension or absence is a vote for the directive.

A sad day indeed for democratic proccess, freedom and sensible patent laws.

This is also a general call for all Europeans to contact your MEPs and tell them that you do not want this piece of legislation to become the law.

The last two and half weeks have been a whirlwind of excitement and hard work as I updated and performed my Free Culture show with collaborative participation and feedback in the spirit of the movement. After the initial rehearsal three weeks ago, the feedback I got was that there was a lot of interesting material, but it was unclear what exactly my message was. I decided to try it out without the intense 5 minute Idioteque video, and added a major contribution from DJ and friend Boon, who pulled together 11 popular music samples that get the audience involved early and brings a fun element to the show.

After two more dress rehearsals that helped tighten up the show, I drove out to Bryn Mawr on Saturday, February 19th for my first college show. I was happily surprised by energy of the local Free Culture group. Special thanks to Rebekah Baglini and Nicholas Bergson-Shilcock (from Franklin & Marshal) for helping to set up the space, including a wireless network that shared Creative Commons licensed music, photos, and videos. It was also great to meet Luke Smith, one of the original pair that sued Diebold, who said that he liked that my show demonstrated a positive vision for free culture. Overall, it was a good first college show.

After taking out a lot of the fat from the performance, the show felt a little short, especially on performance. Along with feedback from the Bryn Mawr folks, I had another session with friend and seasoned performer Kymbali Craig, who made a huge difference in taking the performance to the next level. We added a cover song in the beginning, moved Language of My Reality to the middle of the show, and most importantly, tightened up the transitions to maintain a solid flow throughout. Kymbali also joined me for the improv session (pictured below).

All this to say that the big NY show at the Bowery Poetry Club this past Saturday was one of the highlights of my life so far. It was packed, and the show went so well that the place was buzzing for 45 minutes after the show, with everyone I talked to inspired to participate in helping to build Free Culture in their own ways. You can watch the 45 minute unedited video of the show on the Internet Archive. I’d like to have an edited version to send to press, etc., but not sure if I’ll have time before I leave next Thursday.

Thanks to all of you, including the folks here at freeculture.org, who helped set me up for the tour in a powerful way. I’m looking forward to heading out to Austin, TX for next Sunday’s show at SXSW Interactive. I’ll be posting frequently at the Free Culture Tour Blog through the next 5 weeks, so stay in touch and spread the word!

Anyone who has read Lessig’s Free Culture should be familiar with his argument that the current term of copyright far surpasses the commercial and popular life of most works that it protects.

The “long tail,” on the other hand, is a model that demonstrates how the long-forgotten works are not forgotten in an unlimited marketplace. Chris Anderson recently posted some interesting comments on The Long Tail blog about the perspective of Lessig and Free Culture versus their own:

So Lessig says the commercial life of creative work is short. The Long Tail says it is, well, long. Lessig concludes that copyright is overprotecting stuff that doesn’t need it, since it doesn’t sell anymore. What does the Long Tail say about that?

On the face of it, it really does seem to disagree. [...]

But there’s another way to look at this that offers a neat bridge between the two views. Many of those extracting new value from old content are not the original creators or rights-holders. Some of them are repurposing older material, and others are aggregators who have found ways to find new markets for material that’s fallen beneath the commercial radar. Either way, they typically aren’t the original record label, film studio, publishing house, TV production company or any of the other names that might be on the copyright declaration. They are someone else, probably someone entirely unexpected. This is, after all, the dawn of Remix Culture.

What we have here is something truly remarkable. The economics of producing and distributing mass media have undergone a fundamental shift due to the Internet. It’s no longer the top-of-the-charts, box-office-smashing hits that make money, but the obscure, long-forgotten gems that people love and buy… when they’re available. Homogenization for mass appeal is no longer more important than the niche markets that are always looking for something that fits.

The mass media, in a phrase, is no longer for the mass — it’s for you. It’s a victory for consumer choice. It’s a reinforcement of that American value, individualism. It’s competition. It’s a free market at work. When the products consumed are not shingles or burritos, but the art that shapes our culture and our personalities, that’s almost a revolution.

In a way, it’s embarrassing to watch the old media guard flounder and attempt to regulate these distribution methods out of existence simply because they don’t jive with their current modus operandi. At the same time, it’s frightening because they sometimes succeed at convincing people that their distribution methods should be protected at all costs. It’s at this point that we’re reminded again how an open marketplace allows more people to prosper than a closed system. Using copyright to confine the distribution of works not only limits the success of its creators, but also the success of the distributor, and the public when it keeps that media out of the very culture in which it is designed to exist.

(Special thanks to Gavin for his contributions and editing.)

Yesterday, a number of organizations and academic scholars filed briefs with the Supreme Court in the MGM v. Grokster case, including one from seventeen computer science professors. They defended peer-to-peer technology on the grounds that P2P networks have always been fundamentally tied to the design of the Internet, not new developments in network technology as indicated in the United States’ description of the Internet. Their other arguments are quoted below from the brief:

Second, a P2P network design, where the work is done by the end user’s machine, is preferable to a design which forces work (such as filtering) to be done within the network, because a P2P design can be robust and efficient. Third, because of the difficulty in designing distributed networks, advances in P2P network design — including BitTorrent and Respondents’ [i.e., Grokster's and Streamcast's] software — are crucial to developing the next generation of P2P networks, such as the NSF-funded IRIS Project. Fourth, Petitioners’ assertion that filtering software will work fails to consider that users cannot be forced to install the filter, filtering software is unproven or that users will find other ways to defeat the filter. Finally, while Petitioners state that infringers’ anonymity makes legal action difficult, the truth is that Petitioners can obtain IP addresses easily and have filed lawsuits against more than 8,400 alleged infringers. Because Petitioners seek a remedy that will hobble advances in technology, while they have other means to obtain relief for infringement, amici ask the Court to affirm the judgment below.

Another notable brief is the one filed by Harvard Law School professors W. Fisher III, J. Zittrain and J. Palfrey, Jr., who cite the precedent set by Sony Corp. of America v. Universal City Studios, Inc. (aka the Betamax case) that a technology used to engage in copyright infringement can still be distributed so long as it is has substantial noninfringing uses. From the summary in their amicus brief:

Specifically, amici contend that the Sony standard has proven to be an effective means of balancing the interests of copyright owners with the equally important need to preserve incentives for technological innovation -— and thus that the Court should not now modify the standard.

The EFF has a complete list of the other amicus briefs and other relevant Supreme Court documents pertaining to the case. The diversity of support for StreamCast and Grokster (ranging from the Creative Commons to Intel) is hardly surprising, considering the huge significance of either possible decision by the Supreme Court (to either reaffirm Betamax, or strike a blow to innovation).