The statement calls on universities to adopt policies that will increase the impact of biomedical research, specifically to improve access to essential medicines in developing countries. These policies emphasize an approach to managing patents resulting from university research that serves the public interest and recognizes the benefit of the public domain.

The statement has been endorsed by intellectual property experts such as Lawrence Lessig, James Boyle, Pamela Samuelson, and Yochai Benkler, in addition to luminaries in science and medicine, public health, and civil society.

The Philadelphia Consensus Statement represents a sincere effort to advance intellectual property policy in the public interest, and FreeCulture.org is proud to support UAEM‘s efforts on this important subject.

Please show your support by adding your signature.

P.S. I don’t think I ever blogged my letter to the editor in response to the Washington Post‘s article about the National Day of Action for Open Access, but it was published and is available here.

• University of Florida (Gainesville, FL)
  Tabling: 11 am – 3 pm, Reitz Union Colonnade
  Panel: 7 pm, CSE room E221 (co-sponsored with UAEM)
  Speakers: Gavin Baker, Free Culture; Ashley Wills, UAEM; Stephanie Haas, Digital Library Center
  Contact: Gavin Baker
• University of Southern California (Los Angeles, CA)
  Panel: 3 pm, Annenberg Center for Communication, 734 West Adams Blvd.
  Speakers: Cory Doctorow, Sasha Chock
  Contact: Cameron Parkins
• Swarthmore College (Swarthmore, PA)
  Tabling: during lunch and dinner, top of dining hall (Sharples)
  Panel: 7:30 pm, Scheuer Room, Kohlberg Hall
  Contact: Nicholas LaRacuente
• Emory University (Atlanta, GA)
  Event: 4:30 pm, press conference at Woodruff Library North Entrance
  Contact: Brian Pitts
• Emerson College (Boston, MA)
  Tabling: 11:30 am – 12:30 pm, around 80 Boylston St.
  Contact: Erin O’Brien
• Harvard University (Cambridge, MA)
  Event: Handing out Open Access bookmarks to students throughout the day and distributing them to Harvard’s major libraries. Holding a forum the following week and submitting an Op-ed to the Harvard Crimson.
  Contact: Elizabeth Stark
• MIT (Cambridge, MA)
  Event: Placing pricetags on journals at the MIT libraries and distributing Open Access Bookmarks to students and libraries throughout the day.
  Contact: Mako Hill
• Northeastern University (Boston, MA)
  Event: Handing out Open Access Bookmarks to students and distributing to libraries throughout the day.
  Tabling: 2-4 pm, Main Library
  Contact: Christopher Budnick
• University of Pennsylvania (Philadelphia, PA)
  Tabling: 11 am – 1:30 pm, Locust Walk
  Contact: Steve McLaughlin
• Reed College (Portland, OR)
  Tabling: 11:30 am – 2:30 pm, in front of the cafeteria
  Contact: Max Berger
• Chadwick School (Palos Verdes Peninsula, CA)
  Tabling: 12:30 – 1:45 pm, Main deck (outside Christensen)
  Contact: D. Parker Phinney
• New York University (New York, NY)
  Will publish audio/video from the Taking Action on Open Access event.
  Contact: Fred Benenson

The following chapters have also said they’d be participating — contact them for details:

• University of Evansville (Evansville, IN)
  Contact: Andy Scudder
• Franklin & Marshall College (Lancaster, PA)
  Contact: Ben DeRogatis
• Hamilton College (Clinton, NY)
  Contact: David Riordan
• Claremont Colleges (Claremont, CA)
  Contact: Karen Rustad
• Columbia University (New York, NY)
  Contact: Brendan Ballou
• University of North Carolina, Chapel Hill (Chapel Hill, NC)
  Contact: Erin Watson

We are not radicals. Sorry Washington Post, you’ve just got us pegged wrong.

Our philosophy is founded in decades of legal scholarship. That’s why people like Larry Lessig support us. We may dramatize the issues to help them connect with students, but we are far from radical.

On the contrary, this demonstrates the breadth of the consensus in favor of public access. From the staid librarians to kooky little us. It is the publishing companies, who want something for nothing, that are the special interest, as Peter Suber points out:

Do supporters of national OA mandates like FRPAA want something for nothing? No. We want something for something. Crawford is forgetting that taxpayers have already paid for the underlying research and that publishers pay nothing to receive the written results. Yes, publishers add value to those results. But if publishers and taxpayers both make a contribution to the value of peer-reviewed articles arising from publicly-funded research, then what’s the best way to split this baby? The FRPAA solution is a reasonable compromise: a period of exclusivity for the publisher followed by free online access for the public. If the AAP wants to block OA mandates per se, rather than just negotiate the embargo period, then it’s saying that it wants no compromise, that the public should get nothing for its investment, and that publishers should control access to research conducted by others, written up by others, and funded by taxpayers. I’d call that getting something for nothing.

All Scooby Doo references aside: First they ignore you, then they laugh at you, then they fight you, then you win.

UPDATE: Note that this is exactly in line with the strategy the publishers bought from the “pit bull,” i.e. “if the other side is on the defensive, it doesn’t matter if they can discredit your statements.” It is my intent to remain on the offensive and to discredit their statements.

Together with the Alliance for Taxpayer Access, we are organizing the day to highlight students’ stake in the debate about access to research. We’re encouraging our chapters to take action on their campus to raise awareness at their school.

Read the press release here.

(FreeCulture.org is a member of the Alliance for Taxpayer Access.)

I’m organizing an informal “free culture” caucus at the National Conference on Media Reform this weekend in Memphis, Tenn. Since the conference is large and broad in scope, we want to create an opportunity for people with a particular interest in Internet policy and intellectual property to meet and socialize.

The tentative time of this meeting will be during dinner on Saturday night, 6-8 pm. I’ll ask the conference organizers for a room where everyone can meet at 6 pm, and we’ll move on to a restaurant from there. Details will be posted at the information desk throughout the conference, as well as updated on this post. If you would like me to email or call you when the details are finalized, email me at grbaker@ufl.edu (with your phone number, if applicable).

If you’ll be in Memphis, I hope you’ll join us!

FreeCulture.org has joined the Alliance for Taxpayer Access, which supports open public access to taxpayer-funded research. We join other student groups such as Universities Allied for Essential Medicines and the American Medical Student Association as members, along with a long list of universities, libraries, patients, and public interest groups.

Our reasons for joining are two-fold:

1. As the leading group of student advocates for the public interest in intellectual property and information & communications technology, we recognize access to research as a defining issue for our generation. Public access will lead to faster cures and treatments for disease, improve scholarship and research, and promote development. Whether it’s brilliant photos of space, GIS data, or scholarly journal articles, the people have a right to what they pay for. Access to publicly-funded research, and open access generally, is simply the right thing to do.
2. As students, we work with academic research all the time. After all, who isn’t required to write a research paper at some time or another? Whether it’s a term paper or a doctoral dissertation, scholarship always builds on the past. That requires access to the work of those who’ve come before us.

FreeCulture.org is proud to support the alliance’s work on behalf of the Federal Research Public Access Act and other efforts. Here at the University of Florida, we worked with the Student Senate to pass a resolution supporting FRPAA and open access — and succeeded. We hope to work with ATA to provide more information and resources to engage students on the issue in the future.

“Online journalism makes a unique contribution to America’s vibrant culture of free speech,” said EFF Staff Attorney Marcia Hofmann. “Using the Freedom of Information Act is a powerful way to shed light on government activities and foster critical public debate about the discoveries.”

FreeCulture.org supports citizen journalism as part of a free and vibrant media landscape. We believe that all people have the right to open government.

Last March, we organized Blogshine Sunday to highlight bloggers’ experiences gaining access to government information. Efforts like the EFF’s guide will place bloggers and independent journalists on even better footing to hold governments accountable.

Summer of Code 2006 is a program that offers student developers stipends to create new open source programs or to help currently established projects. Google will be working with a variety of open source, free software, and technology-related groups to identify and fund several hundred projects over a three-month period. The inaugural instance of the program, which took place last summer, brought together 400 students and 40 mentoring organizations from 49 countries. We’d like to include even more organizations and participants this year.

We may not always agree with the actions of Google (or anyone else, for that matter), but it’s hard to argue with paying students to work on free software. Each student accepted to the program will receive a $4,500 stipend for their work, with $500 going to their mentoring organization. Mentor projects include projects such as Apache, Creative Commons, LiveJournal, FreeBSD, the GNU Project, Ubuntu, OpenOffice.org, and the Wikimedia Foundation.

Needless to say, this is a great opportunity to help out free software projects and encourage young developers to code F/OSS. The applications are due by Monday at 5 pm Pacific time, so if you’re interested, hop on it!

I think [the term of copyright] is too long. I think that was probably a big mistake…

Nelson and I first met Kai at the “Free Culture Phase 2″ event organized at American University in May 2005, where he was one of the organizers working with AU’s Prof. Kathryn Montgomery in the School of Communications. Kai has also been a writer for Die Gegenwart, a German online magazine; more recently he’s started his own blog, Freihoch3. On Friday he published “The EFF is our mother”, an interview with me on free culture and the free culture movement, as well as FC.o and the international dimensions of free culture activism. Check it out—interview is in English, introduction in German.

Best fishes,
Gavin

Last month, American University released a document called Best Practices in Fair Use. Authored by filmmaker groups and endorsed by more, the guide lays out principles for “best practices” when dealing with the fair use doctrine of U.S. copyright law.

The plight of fair use, particularly in the realm of documentary filmmaking, is well documented — see for example Chapter 7 of Lessig’s Free Culture. When I first heard about this project in May, I immediately recognized it as work of great value. I’m glad to hear it’s come to fruition.

Since the statement is approved by filmmakers themselves, they can read the statement and adopt its principles without doubt: they know the authors are looking out for their best interest. This is a powerful tool: not just for filmmakers who want to use the work of another, but on the supply side as well. Not only does this document inform filmmakers of their rights, it informs them of their obligations as well. Not only will this embolden filmmakers when they receive a cease & desist letter or are told they have to get permission to quote in their film — hopefully this will reduce the number of cease & desist letters sent in the first place.

The excellent work of the Center for Social Media and the Program on Intellectual Property and the Public Interest will go a long way in encouraging education and discussion of copyright, particularly among the creators themselves.

The free culture student movement can help spread this document within their campus communities and ensure its wide reach. And we should.

The model of “best practices” for fair use did not originate in this report, and the model does not have to end here. Fair use is intentionally an open-ended doctrine, the grease that keeps the wheels of copyright turning: Congress hates to codify it and tends to do a poor job of it besides. Case law can be complex, unclear, contradictory — and the only way to be totally sure of something is a slow, expensive, and risky process. So the model of developing sector-wide statements of best practices makes particular sense for fair use. And the process of developing, adopting, and implementing these best practices is an enlightening one itself, and turns the question of “How should the law work?” into a very tangible one.

If I may, I’d like to suggest one field where this is desperately needed: academia.

As students, this hits particularly close to home for us. But in the academy, where information is the key commodity, there is far too little understanding and too little discussion of fair use. The prime example here would be the Association of American University Presses’ response to the Google Print program (now called “Google Book Search”). The AAUP is the group that represents the publishing houses of U.S. universities and university systems (including mine); as such, AAUP is ostensibly bound to universities’ commitment to work for the public good and increase access to information. But AAUP’s stand with the Authors Guild and their lawsuit to kill Google Print evinces AAUP’s true loyalties: to copyright maximalism, control, and profit over the public good.

I suspect this is a case of one hand not knowing what the other is doing, rather than all the universities represented by AAUP actually being in the maximalist camp. But universities must protect themselves: they should be sure that all their activities are furthering (or at least not attacking) their central goals. Therefore it seems appropriate to develop a model for university-wide best practices, inviting all the parties to take part in the process: researchers, administrators, publishers, and students.

• An editorial in the estimeed science magazine Nature, “Let data speak to data”, calls for open access to research databases. Notably, they specifically suggest Creative Commons licenses for research data.
• First Monday, one of the oldest open access peer-reviewed journals, is celebrating its 10th birthday next year with a special issue and conference. The subject: “the issues involved in building sustainable models for openness in science, software and content.” Sounds hefty to me; I can’t wait to see the conclusions, and I encourage anyone interested to submit. Deadline is 6 February 2006.

Of course, Peter Suber’s Open Access News is the (in-depth) blog of record for news about open access. To learn more about open access, see Peter’s excellent overview.

• the beer-brella, an umbrella for your beer
• the toilet that incinerates your, er, waste
• leaf-gathering trousers
• a kit for painting with a baby’s bottom

May these fine examples of entrepreneurship brighten your day.

In the coming days, we’ll be drafting letters to deliver the petition to its targets. We’ll ask Cereality to make nice and withdraw their ridiculous patent application; we’ll ask the Patent Office to reject the patent if Cereality doesn’t; and we’ll ask Congress to eliminate business method patents for good.

In other news, there’s an article about Cereality and Cereal Solidarity in today’s Daily Pennsylvanian, the student paper at the University of Pennsylvania. The article, “Cereality warns potential copycats,” highlights the growth of other cereal bars across the U.S. In other words: lots of people will be in danger if this patent goes through.

The article also talks about Cereality’s trademarks. For the record, let me say that (IMHO and AFAIK) Cereality hasn’t done anything wrong with their trademarks. For instance, the article mentions a café in Iowa called Cerealogy that changed its name to avoid trademark infringement. That seems like a pretty good case to me: the names are rather similar, and there’s probably a good likelihood of consumer confusion, especially considering Cereality calls its employees “cerealogoists”. (If you can show me that the word “cerealogy” has been in general use for a long time, I might change my mind.)

In other words, we’re not anti-Cereality, nor are we anti-”intellectual property” (though we don’t like the term very much). I think Cereality is a good concept, and from what I’ve seen, it looks like a well-run business. We just think Cereality made a mistake when they decided to apply for a patent — and we think business method patents are a mistake all around.

In fact, I’m prepared to throw my support behind Cereality if they withdraw their application and join the growing coalition of voices against business method patents. We don’t want to be confrontational, especially if we don’t have to. I hope Cereality does the right thing.

Thursday, October 27
7:45 – 9 am
Parliamentary Restaurant, 6th Floor, Centre Block
more details here

After only a few days, our online petition has over 200 signatures. Most of those come from the U.S., but a few originate abroad — from over a dozen other countries. This is a nice reminder that in most of the world, business method patents don’t exist — and rightly so!

Our message with Cereal Solidarity is that patents are not a God-given right, they are a government instrument obliged to serve the public interest. This theme is at the core of everything we do to combat the massive, unprecedented expansion of so-called “intellectual property protections”: that copyright, patents, et al. are not property at all, but rather limited state-granted monopolies to encourage creativity and innovation. That’s the view the U.S. Constituion takes, and it’s the only one that can protect individual freedoms and drive economic growth in the 21st century.

The IP maximalists don’t get it. They want a government hand-out; they’re aiming for a full-scale land grab, and so far, they’ve been pretty successful. But capitalism relies on the freedom to compete — and that’s exactly what the maximalists don’t want. If economies worldwide are to remain competitive in the next century, if new businesses are to have a fair chance against established corporations, and if individual user freedoms are to survive, we have to reject that worldview. We must keep the perspective that intellectual policy comes as part of the overall social contract between governors and the governed — that they must serve the public interest.

Right now, business method patents help neither consumers nor businesses. Just ask Bowls owner Rocco Monteleone. Or any of the other cereal bars popping up around the country. Or the Nonprofit Innovation Alliance, fighting to make sure that charities can do their work without having to navigate a patent minefield. For perspective, consider this piece from Business Week citing a recent survey that technology companies rank third in the average number of lawsuits faced — and that tech companies have the most in-house attorneys managing litigation.

Whether cereal bars or search engines, these are the vanguard of the future economy. These are the businesses lauded as the innovators, the movers and shakers, the wave of the future. But IP maximalism chills innovation, shuts it down, lock out newcomers and outsiders — it’s government protectionism of the lowest order. It discriminates precisely against the businesses who can move things forward — and it hurts our competitiveness as a society.

We know this. Now let’s make them listen. Sign the petition and tell Congress to make the law work for the public interest: end business method patents now.

I think it’s just a fact of life in the U.S. that you need a PAC to make a major impact on electoral politics. We’re lucky to have IPac; hopefully they’ll have an even bigger effect in 2006 than they did in 2004. (Don’t forget about those mid-term elections, folks!)

Our newest project, Cereal Solidarity, is ready for public launch!

Last month, I was reading the campus newspaper here at the University of Florida. I came across an article on a new restaurant — a restaurant whose focus is serving cereal. “That’s an interesting idea,” I said to myself. “I should check it out some time.”

Then I kept reading — and was shocked.

When (Bowls owner Rocco) Monteleone took the first steps toward making his novel little idea of a café a reality in October of last year, he never thought about competition.

Gainesville had never seen a cereal café.

Other states had though. (Cereality founder David) Roth and his business partner Rick Bacher were the first business owners to sell cereal in a restaurant setting in 2003 with Cereality locations in Arizona, Illinois and Pennsylvania.

While Cereality hasn’t patented selling cereal, it is pretty close.

Roth and Bacher have pending business-method patents for six specific elements of how they sell cereal, including “displaying and mixing competitively branded food products” and adding “a third portion of liquid.”

I was determined to find out more. When I did, I went into action mode. I knew we couldn’t stand by.

When a restaurant tries to patent concepts as simple as mixing two cereals and adding milk — when patent bullies real businesses and entrepreneurs — FreeCulture.org stands up to express our solidarity.

It’s not just “a bad patent”. It’s a structural failing of the whole system. Patents make sense for mechnical and technological inventions. They don’t make sense for business methods — and they don’t belong there.

Cereal Solidarity is our project to express support for those who suffer under the current system, and raise our voice to cry out for reform.

FreeCulture.org is collecting signatures through the end of the month. We’re asking Cereality to make nice and withdraw their application; if not, we’re asking the Patent Office to reject it. And we’re asking Congress to end business method patents for good.

Visit the Cereal Solidarity site for more information. We need your signature on the petition. We want to show the decision-makers in Washington that we mean business and that real people care about these issues.

You can also host a local event: throw a cereal party, invite your friends, mix as many cereals as you like. We have some materials on the site. (If you do a local event, let me know at gavin@freeculture.org.)

Please sign the petition — and pass it on.

• ohio.freeculture.org, Ohio University, Athens, Ohio
• emory.freeculture.org, Emory University, Atlanta, Ga.
• claremont.freeculture.org, Claremont Consortium, Claremont, Calif.

Also: Any students at North Carolina State University interested in starting a chapter should contact Karrie Peterson (karrie_peterson@ncsu.edu, 919-513-2614).

UPDATE: We are also pleased to welcome Harvard University in Cambridge, Mass. to the movement! Check them out at harvard.freeculture.org. –Nelson

This is an important effort. It looks like a thorough review of Canadian copyright law — which should go a long toward letting Canadians know what’s at stake, particularly with Bill C-60 still hanging around.

Kudos to Geist and the authors, as well as Irwin Law, for making this come together.

That said, I encourage anyone in the UK to take place in their first Congress in London on October 1. Best of luck to you!

If you’re going, send us an e-mail and say hello.

Under what circumstances? That we know the author? That we’ve read the book? That we get a copy of the book to review? That the book is released under an open license?

Before the book is released, or only after we’ve had a chance to read it?

What do you think?

We usually don’t mention book releases on this blog — we don’t have anything against J.D. Lasica’s Darknet, for instance, we just weren’t sure about using our blog to plug it — whereas this is a direct follow-up to a conversation I had (and, therefore, to a previous post). The fact that it’ll be free under a CC license is a factor, too.

But Geist’s book is not just interesting reading: it’s a tactical dart in a political fight. Right now, Canadians are fighting Bill C-60, a proposed new copyright law that’s pretty nasty for consumers. In the Public Interest is aimed squarely at C-60, with detailed analysis of the bill (damning, I’m sure) — timed to coincide with the Parliament’s return to session.

MPs will have no excuse to accept unquestioningly the CRIA party line: In the Public Interest, on the contrary, should raise plenty of questions about C-60. Its supporters, in fact, may need to prepare to question everything. (CRIA, by the way, is the Canadian RIAA — even though many of the member companies are American- or European-owned.)

Bravo, Michael. Canadians, add this to your “recommended reading” lists.

One well-known example is Mozilla‘s open source Firefox Web browser. The source code is open, but the trademarked logos, etc. are not. I don’t want to pick on Mozilla — they’re just one prominent example.

I don’t think it’s neccesarily a bad thing. A trademark is supposed to be just that: a distinct mark by which consumers can recognize a product or company. There’s nothing wrong with helping consumers identify products, nor with helping businesses and organizations stay recognizable. The problem is in knowing if you’ve gone too far.

There is, of course, basic information about trademarks available, both online and in print. Naturally, though, most of that information is aimed at how to “protect” one’s mark. As far as I’ve seen, there’s precious little about how to use your mark responsibly: what to register and what not, which uses of a mark to allow and which not, how to tell the difference between infringement and fair use, etc.

Such a document — a short “best practices for trademarks” — seems like it’d be useful, especially for authors of free software and people concerned with freedom. (I don’t think Mattel’s going to pay much attention.)

We at FreeCulture.org are not the right people to write that paper. We’re not lawyers; most of us aren’t even law students. But a small contingent of present and future lawyers follow what we do — and we know where to find others. So we can’t write it, but if anyone out there is interested working on such a paper, we can help you find collaborators and reviewers, help you work together, and help distribute the final draft.

If you’d like to work on the paper, add a comment on this post or send an e-mail to freedom@freeculture.org.

An article in this week’s Newsweek magazine quotes Nelson — and has a photo of him hiding under his desk. Yup, he’s wearing a Creative Commons shirt.

The article, “High-Tech Hot Spots”, is about how new technologies are changing colleges — and how colleges are changing technology. Nelson’s quoted in the last paragraph, as a “student active in the copyright wars over file sharing.” No reference to FreeCulture.org, though — but we all know what they’re talking about.

I grabbed a copy in my university library, and scanned it to my Flickr (sounds like fair use to me!) — so you can see the print version here.

Street propaganda by RIAA ilk, meet the real world:

That’s an EFF “Fair use has a posse” bumper sticker. Because there are a few people who aren’t buying that “feed a musician” bit — not from the RIAA. Appropriately dubbed sticker wars by some.

If you’d like to start a Free Culture group at your university or in your area, please get in touch with our Canadian contact, Andy Kaplan-Myrth, at andy@itls.ca.

Tell us about yourself, your school (if you’re a student), your plans for starting the group, and your ideas for what the group will do. Ask us any questions you have, and we’ll try to help answer them. We can share the experience of older groups. We’ll also set you up with some promotional literature or merchandise to help you get started, and some Web tools if you don’t have access to your own (a mailing list, blog, and wiki).

Whether you’ve never contacted us in the past, or whether we’re old friends, we still want to hear from you. E-mail us at newgroup@freeculture.org. Please include your name, school, concentration or degree program, Jabber or AIM screen name, and a telephone number.

We’re hosting a conference call on Sunday to discuss going back to campus and starting new groups. If you’d like to join us tomorrow evening, let us know.

UPDATE: If you want us to ship you goodies, or provide you with web tools, you need to e-mail us and ask, so that we know how many chapters need our assistance. Fred wants to know how many packages he’s sending out. So, no matter if you are an old group or a new group, either way, you need to e-mail us. Also, we have a conference call every Sunday, so if you missed this one, you’re welcome to join us next Sunday.

As we mentioned on Lessig’s blog, we now have some sharp FreeCulture.org T-shirts for sale. They’re $20 shipped within the U.S., $27 internationally. You can order with a credit card or PayPal from our handy site, or mail a check or money order to:

FreeCulture.org, Inc.
P.O. Box 140657
Gainesville, FL 32614-0657
U.S.A.

Questions or comments? donate@freeculture.org

Two weeks ago, while I was in Ottawa, I had the fortunate chance to have lunch with three well-known names in the Canadian copyfight:

• Michael Geist, columnist and professor
• Marcus Bornfreund, project lead for Creative Commons Canada
• Russel McOrmond, self-made activist and sponsor of Digital Copyright Canada

I got to learn a bit about the state of free culture in Canada and hear their thoughts on Bill C-60, the proposal currently on the table to revise Canadaian copyright law. Michael was written fairly extensively about it – I won`t go overboard with links – but here`s a place to start: killbillc60.ca.

Needless to say, it was interesting to hear their opinions on the bill, and get a little insight into the “scene” here. I think it`s fair to say that it`s not exactly the best bill that Canada could hope for; on the other hand, if it were to pass in it`s current form, it`d be a far cry from the horror it could have been.

Later that week, I met Andy Kaplan-Myrth, a recent graduate of the University of Ottawa `s law school. I got to hear more about the differences between the situation in Canada and in the U.S., which issues are interesting and relevant to Canadians, and how to find interested students.

When I return to the States, I`ll spend a bit of time recruiting in Canada. Due to the geographical proximity and commonalities in language and legal system, those of us in the U.S. can do more to work with interested students in Canada than just about anywhere else. If you`re a Canadian who would be interested in working with a Canadian wing of FreeCulture.org, or have ideas about how to connect with folks in Canada, feel free to comment on this post.

Last week I met some of the agents in Montréal’s thriving libre scene: LUGs, commercial free software developers and consultants, non-profits (they call them NGOs) and ad hoc collectives. For example, the city owes much of its wireless Internet to ÃŽle Sans Fil (literally, “Island Without Wiresâ€?) which work s with small businesses, etc. to dispatch Linux-equipped Linksys routers.

A few people mentioned to me that in the past few years, these various groups have come together in a higher cohesion, working more closely together on their common interests. That makes me happy – and it’s needed, if we’re to withstand external threats and advance our common cause. (Of course, that’s part of what Free Culture groups aim to do, on a campus level.)

On Sunday, I attended a presentation by Richard Stallman, president of the Free Software Foundation and founder of the GNU Project. From what I understood of the event (my one-semester background in French means I’m at a bit of a disadvantage) it was very interesting. RMS proposed a 10-year copyright term – certainly a radical change from our current state (and not the only one he proposed, I might add). A part of me wants to cheer at the idea: boy, that’d sure solve a lot of problems! But I also wonder whether it might cause as many, or more, problems than it’d solve.

Copyright, of course, is a slippery beast. In the U.S. tradition, we have the Constitution to guide us: “to promote the progress of science and useful arts”. The trick comes in defining what, exactly, progress looks like. Certainly, open access seems like progress – but what if open access reduces economic incentives to create, or to make art and information widely available? I’m not saying that it does, but it might – some people certainly worry so. How do we know if it does? And if so, to what extent? Should we care?

So we’re faced with a challenge – one that might be as great as the fight to be heard over the clamor of the megacorporations, or to organize and mobilize our allies. That challenge is two-fold: to prioritize the rights that we want have (for consumers, for technology companies, for students and educators and libraries, for subsequent creators), and to examine the effects of granting those rights – in not just anecdotal or speculative terms, but through empirical historical, economic, and sociological study.

In short: We know that there’s something wrong with copyright. We need to know how to fix it. Proposals like Stallman’s are great for revealing the realm of possibilities, for making us think outside the box, for prompting us to wonder, “What if?” But we should not simply throw our support behind an idea simply because RMS posits it, any more than we should accept flatly anything Lessig says, or anything Hilary Rosen says.

We can some threats, and some failings of the current system: thus the concern with Grokster and with orphan works. But we’re making a mistake, and miscomitting our priorities, if we let those issues consume all our time without fully moving into a deeper consideration of copyright. There are certainly no-brainers in the quest to fix copyright, but many of us – probably most of us at FreeCulture.org – feel they’re something more fundamental that’s broken with the current system. This has something to do with the fact that in the history of copyright, rights have grown damn near exclusively in one direction – and their overall growth, over the course of their existance in America, is rather stunning. At its heart, copyright is a contract between the creator and the user; writ large, between the creative production machine and everybody else, including those who want to build upon past works. The bargaining position of the “everybody else” in that equation has grown in leaps and bounds, in the forms of electricity, mimeographing, home computing – you get the idea – but the social contract of copyright has asked them to give up more and more of the abilities they would otherwise have. We smell a rat, and rightly so.

But smelling a rat and knowing how to get rid of it are two different things entirely – especially when the people doing the rat-smelling care about ideals like democracy, openness, the public interest, participation, and minimizing harm. The process is made even more deliberate when the rat-smellers are often professors, laywers, students, tinkerers, thinkers: folks who value academic inquiry and the scientific process over knee-jerk reactions and power politics.

If the first stage of the free culture movement (lowercase) was its birth and rapid growth, and the second stage is its networking among various interests and outside the traditional technology sphere, maybe the third will be – or should be – taking a cold, hard look at the subjects we care about, and put forward real alternatives, based in real study. Take Internet governance: as the ‘Net becomes less dominated by the U.S., and as every doohickey and thingamajig go online, and as companies want to give their own data priority on their network, and as hacks and vulnerabilities become multi-million dollar events, we’re looking at some serious questions about the basis of the Internet. Trusted computing and DRM are marching boldly (some might say cowardly) forward. The decision-makers need to have evidence that goes beyond anecdotes and gut reactions. That’s not to say our gut reactions are neccesarily wrong; they may be completely right. But if we’re telling the truth when we talk about participation, deliberation, and overcoming the politics of fearmongering and FUD, then it’s time to start number crunching. It’s time to start digging up the research that’s been done and analyzing, breaking it down, seeing what it really means, how it applies, what it implies, what it assumes, what it leaves unanswered, what needs research, what needs corroboration, what needs clarification. And then it’s time to do it.

Only then can we count the cost. But even knowing the cost, we still have to know our priorities. Okay, so a 10-year copyright term would (probably) have these effects: is it worth it? It may be that we value wildly different things; or consensus may come easily, who knows. But without a bed of empirical research, we cannot expect the American people, let alone the world, to even lay down and chat about what they dream, prize, and fear.

And when we’ve counted the cost, and explored what we value, then we can make some informed decision about whether we want the big car that drives slow or the small car that drives fast. Real change does not happen without something changing: if we patch all the minor bugs in copyright, it will still be an ugly mess, with plenty of questionable “features”. If we’re serious about moving forward to the next version – and I think those who care about the future of expression, technology, information, and media should be – then we need to consider well what the next version should look like.

That means we’ve got to grapple with many different definitions of things like “progress” and “freedom”, and do and read all sorts of research we’d probably prefer not to. But we’ve got to – or else things stay the way they are. If the problems run as deep as many of us suspect, that shouldn’t be an option.

UPDATE: The article, called The Same Old Song, is available on Wired Magazine’s website, with a bit of digging.

We’d like to write up a brief FAQ about the decision, targeted at students — especially since we’ve overheard a lot of misconceptions. If you can give us a hand, please head on over to the draft on our wiki. (If you’ve never used a wiki, see the brief introduction.) We’d also like to gather some links to the reactions, interpretations, and commentary on the decision — please post those on the wiki, as well.

Please keep in mind that the FAQ is aimed at students, not lawyers. Brevity and clarity are virtues here; try to keep speculation to a minimum.

Washington, D.C.
July 26 and 27

Berkeley, Calif.
Boalt Hall School of Law, University of California – Berkeley
August 2

More information should be available soon. To stay updated, you can subscribe to the Copyright Office’s e-mail newsletter or its RSS feed. They also have an RSS feed specifically for orphan works updates. Here’s their handy guide to RSS, for those not familiar, which also lists all their available RSS feeds.

Needless to say, we want to make sure that everyone has their voice heard in this discussion. If you can, please be sure to attend. Hopefully free culture advocates on both coasts (like the EFF and Public Knowledge) can help to bring the public to these roundtable talks. It’s up to us to keep this issue alive and in the public view.

If that’s not a good Sunday night out, I don’t know what is.

If you’re going, or you’d like to help me with set-up for the event, drop me an email at grbaker@ufl.edu.

If you have any comments about what sort of designs you’d like, the color or style of the shirt, or anything similar, feel free to comment on this post.

What sort of licensing should we use for the designs? Should we ask the artist to transfer the copyright to us, or should the artist retain the copyright but grant us license to use their design? Should we use a Creative Commons license? Which? Should we use a non-commercial license, since we intend to sell the shirts as a fundraiser?

Besides T-shirts, what other sort of merchandise would you be interested in, or you think others would be interested in?

(Just to give the discussion some framework: Our initial run of shirts will probably be around 200 of the same design, on American Apparel shirts.)

This provides us with an actual legal identity: now “FreeCulture.org” can accept your donations rather than one of us; “FreeCulture.org” can have a bank account; “FreeCulture.org” can have a P.O. Box, and so forth. It also provides a certain degree of personal indemnity for the people involved (though we admit, we don’t quite understand the totality of this yet). Probably most importantly, it’s the first step toward being a certified tax-exempt charity in the U.S. More on this later.

The initial members on our board of directors are Nelson Pavlosky of the Swarthmore group, Nicholas Bergson-Shilcock from Fraklin & Marshall, and myself (from the University of Florida).

Read on for more info on why things happened the way they did, what our next steps are, and how you can help…

A few words of explanation: This process of incorporation has been very much new territory for all of us. We chose Florida as the state in which to incorporate because the requirements of the process favor us (or seem to). The fact that the Wikimedia Foundation was incorporated in Florida seemed a good sign that state law would be on our side. The funding for the filing fees was graciously donated by several members of our Discuss mailing list. The actual “location” from which we’re incorporated is my home — you could say we’re starting this out of the garage. Our initial board members were chosen out of convienance; one of the board’s first tasks will be appointing a full board and establishing bylaws.

That said, we’ve got a lot to do.

We don’t have plans to establish an actual physical office in the immediate future. However, we will getting a P.O. Box near the University of Florida.

We’ll also be establishing a bank account, and likely a Paypal account, to receive donations and pay expenses. Since we aim to keep expenses minimal until we have some reason not to, we won’t be doing much fundraising. After we’ve covered our basic expenses, we’d prefer your donations to head to groups like the EFF, Public Knowledge, Creative Commons, Free Software Foundation, etc. — there are plenty of worthy causes out there that can probably put your dollars to better use than we can. (This may be the first time that college students have asked to not be given money.)

That said, once we’ve established means by which to accept donations, we’ll put out to call to help cover such expenses as our domain registration, P.O. Box, annual filing with the Division of Corporations, etc. (We’ll have a better idea of expenses once we’ve put together our business plan.) Our first “non-essential” expenditure will be to create some FreeCulture.org merchandise, as a thank-you to our supporters and as a fundraising mechanism. (Our hosting is currently donated by A Small Orange via Downhill Battle, and so not counted as an expense — although expanding our server capabilities might be on the table for the future. DHB has a flying disc for sale in their store which you can buy to thank them for hooking us up.)

Beyond that, our financial endeavors are undecided. More on this later.

Our next task will be applying for a Federal Employer Identification Number (EIN), which is relatively painless, but a neccesary step if we’re to apply for tax-exempt status.

After all that easy stuff is taken care of, we have the real tasks at hand: to flesh out a board of directors, and possibly an advisory board; to establish bylaws; to produce the other needed documents for our Web site, chapters, supporters, potential funders, and ourselves; to handle the on-going accounting tasks that come with incorporation; and, should we choose to accept it, apply for tax-exempt charitable status in the U.S.

So far, we’ve relied mostly on our own research and instinct, and the valuable advice of a few friends. That’s not going to cut it as we move forward into more formidable matters. We’ll need considerable outside assistance — and, importantly, we need your opinions and advice.

Here are just some of the questions we have to consider:

• How big should the board of directors be?
• What should the makeup of the board be? For instance, should be it all students? Students and alumni? Others? What ratios/percentages? Should we have a student majority? A student-or-alumni majority?
• Who should we ask to serve on the board?
• Should we have an advisory board? Who should we ask to sit on that?
• Should board members be volunteers, or should we try to remunerate them?
• Officers: what are the roles/titles? (e.g. “treasurer”) What do we need? Who are they?
• Funding: what do we need it for? Where do we get it?
• Should we have an office? Should we have a paid staff member (or intern, or volunteer)? What sort of person should the staff member be (e.g. student, recent graduate, more experienced employee)? How would we pay for an office / staff? Where would our office be?
• Should we apply for tax-exempt charitable status? Who would do all the legal legwork? Who would do the annual filings? Should we “borrow” another group’s tax-exempt status (e.g. Public Knowledge)? What should we know about being tax-exempt: what restrictions come along with it?
• What should we know about being incorporated? What should we know about soliciting donations and fundraisers? Now that we’re a corporation, what can we do to ensure transparency and openness?
• What, if any, insurance do we need? Where should we get it?
• What do we need in our bylaws? What other documents do we need?
• Should we be a membership organization? How would membership work: through local groups? Would there be membership fees?

We want your opinion in regards to all of the above questions, and others that relate to this process of incorporation, as well as more general questions like: What should our organization look like? What is our role in the movement? How can we stay connected with others? What is the relationship between FreeCulture.org and Free Culture campus groups? And on, and on…

We need your input. If you’re a lawyer, accountant, or have experience working with non-profits, we particularly need your help. Please post your comments here, or on our Discuss mailing list. We really appreciate it.

Oh, and a final note on purpose: Here’s what we said in our articles of incorporation:

to promote and facilitate student and youth engagement in the free culture movement

There’s a reason we framed it that way. For one, FreeCulture.org is best suited toward encouraging this civic participation — that is, we’re the only group doing this on college campuses; futhermore, we’re not suited to do hardcore lawyering or lobbying, or launching involved projects of our own.

One of our key functions — maybe our primary function — is to be a connectional table, so that students with a variety of interests can learn more about the way those interests are interrelated, and what else they’re connected with; to learn more about the law, the organizations, the companies, the individuals, the technologies, the theories and principles, and the history behind this movement, and prepare to work with them; and to share all this with other students who aren’t currently interested or involved. I think to place this at the center of our mission, and let any activism or lobbying emerge from there, is the right path for us.

Only a handful of students want to be activists, but millions of young people want to know more about why Napster got shut down, why their friends are getting sued, why they can share and remix some things and not others, why the TV news talks about celebrity trials rather than the issues in their own communities, how new technologies offer people new ways to participate in their culture and society (and why some people want to stop it), how this process has played out historically, why people can’t afford medicines even though they’re cheaply produced, and so on.

These issues are in the news, and in our conversations, every day. We, as a generation, want to know about them. And inevitably, once we learn a bit, we want to stand up for what we see as right, and stand up against what we see as wrong. To bring young people into these discussions, I’m convinced, is at the heart of our mission.

We’ve written about orphan works previously ([1] [2] [3]); here’s a direct link to FreeCulture.org’s comment. Also, here are the requisite links to Copyfight and Boing Boing writing about the same thing.

After the reply comment period ends, the Copyright Office plans to hold hearings on the subject, and issue a report before the end of the year, according to Public Knowledge‘s Alex Curtis. Let’s keep this in the public eye, and let our elected officials and bureaucrats know we want a solution.

• Elizabeth Stark of Harvard Law School will be interning with the Electronic Frontier Foundation
• Fred Benenson of New York University will be interning with Creative Commons
• Nelson Pavlosky of Swarthmore College will be interning with Public Knowledge
• Eldo Varghese of the University of Florida will be interning with the Wikimedia Foundation
• I’ll be in Canada, where I plan to meet with Michael Geist and cc | ca project lead Marcus Bornfreund

Of course, many of our members will be working summer jobs, taking classes, traveling or studying abroad, lounging on the beach, barbecueing, etc. — which are all perfectly valid activites as well

Best of luck to those of you still in finals. Hope everyone has a good summer!

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

FreeCulture.org’s comment follows:

Orphan Works Comments of FreeCulture.org

Introduction

FreeCulture.org is not-for-profit, non-partisan group of students and supporters. FreeCulture.org represents student groups at nine American colleges and universities, and students from over a dozen other schools across the United States and internationally. Our students are largely undergraduates, but also include graduate and professional students as well as high school students.

FreeCulture.org is concerned with the problem posed by orphan works in terms of barriers to new cultural creativity and advancement, to new economic endeavors and entrepreneurship, and to freedom of speech. FreeCulture.org’s members, as students, deal daily with copyrighted material and the need to make subsequent or derivative use thereof. In educational situations, students may often rely on fair use doctrine in making subsequent uses. However, many of our members are creators outside the classroom, as musicians, authors of Web sites or Web logs (blogs), film or multimedia artists, etc. Such extracurricular activity often represents important educational or professional experience.

Outside the classroom, though, fair use is less likely to apply to subsequent uses, and more risky to rely upon. Students often have little experience in tracking down right holders to secure permissions, and little time or resources to do so. Therefore, copyrighted works whose owners are difficult to locate place an extraordinary burden on new creation for students; works whose owners are impossible to locate represent a bottomless pit from which our members cannot escape without putting themselves at an unacceptable level of legal risk.

Problem

In response to the Copyright Office’s question “whether there are compelling concerns raised by orphan works that merit a legislative, regulatory or other solution,” we must answer resoundingly
in the affirmative. FreeCulture.org appreciates this opportunity to communicate with the Copyright Office on behalf of our members in this regard.

Question 1: Nature of the Problems Faced by Subsequent Creators and Users

FreeCulture.org has worked with the Electronic Frontier Foundation and Public Knowledge to encourage students, members of the academic community, and the public to submit their experiences with the nature of the problems posed by orphan works to the Copyright Office. These stories have come from university librarians, digital archivists, fans of early computer and video games, literature aficionados, and individuals interested in professional reproduction of family photos. Their tales represent a failing of the current copyright system, and indicate the need for reform.

Attempting to extract general trends from these stories, the difficulties most often encountered in subsequent uses are in determining whether a work is covered by copyright, and if so, in locating the right holder to seek permission for use. The users most often encountering these difficulties appear to be individuals, largely for personal use, and non-profit organizations or educational institutions, largely for non-profit educational or archival use.

Questions 2-4: Nature of “Orphan Works”

In general, “orphan works” should be defined as broadly and as flexibly as possible, while respecting right holders and allowing for the establishment of clear, effective, and simple rules for the subsequent use of abandoned works.

In response to the Copyright Office’s inquiry, the final twenty years of a copyright term, as established by the Copyright Term Extension Act of 1998, are not acceptable as the only measure for eligibility as an orphan work, nor as a requirement for eligibility. Many of the stories encountered in our exploration of Question 1 involved works which were far from the final twenty years of their copyright term. Additionally, the burden of establishing the date of creation for undated works would be unacceptably high, particularly for students. Therefore, limiting the definition of “orphan works” to those works in the final twenty years of their term is inappropriate. However, it may be appropriate to allow the fact that a work is in the final twenty years of its term to be admitted as one piece of evidence that a work is orphaned, or to be considered as a factor for reduced liability in the good faith use of an orphan work.

Question 5: Effect of a Work Being Designated “Orphaned”

In general, any system for the designation of orphan works should attend carefully to the balancing of protections for original creators with the possibility for wider distribution and use. For example, “orphaned” status should be revocable when right holders present themselves. Conversely, once a work has been established as orphaned, subsequent users should not be forced to re-prove that designation in the absence of new evidence to the contrary.

Specifically, a proposal to limit the liability for users of orphan works, such as that being developed at the Copyright Clearance Initiative of the Glushko-Samuelson Intellectual Property Law Clinic of American University’s Washington College of Law, could be acceptable as one tool to achieve that balance, but it should not be the only one. To use the courts as the sole solution to the problem of orphan works, even with statutory exemptions for “good faith” infringement, still requires subsequent users to put themselves at risk of having to bear the cost of defending themselves in litigation. For students — as well as, we suspect, many individuals and non-profit or educational institutions — that risk has a chilling effect on new creation. Therefore, an exemption for reduced liability is not acceptable as a stand-alone solution.

Question 6: International Implications

The urgent need for a solution to the problem of orphan works behooves the Copyright Office and Congress to implement a solution as soon as possible. That may mean that an initial solution should skirt possible incompatibilities with international obligations. However, if the most effective solutions are found to be incompatible with international obligations, the importance of a national solution should be balanced with the possible need to reform international treaties.

Other General Criteria for Solutions

In response to the Copyright Office’s inquiry as to “what type of solution could effectively address these concerns without conflicting with the legitimate interests of authors and right holders,” FreeCulture.org further submits the following general criteria:

1. Any solution should balance the responsibilities of original creators with those of subsequent creators and users.
   • No solution should be implemented that imposes such a burden on original creators, or subsequent creators or users, that it inhibits progress.
   • No solution should be implemented that imposes an unfair burden on students, individuals, non-profit organizations, educational institutions, libraries, archives, or small business, either as original creators or as subsequent creators or users.
2. Any solution should provide clear rules for subsequent creators and users.
   • Any solution implemented should provide assistance for subsequent creators and users in locating right holders, and in determining the status of a work’s copyright.
3. Any solution should provide clear rules for original creators.
   • Any solution implemented should provide clear rules for right holders on how to avoid having their work become orphaned, and incentives to do so.
4. Any solution must preserve fair use.
   • No solution should be implemented that reduces fair use rights or other statutory user’s or consumer’s rights.

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.

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.

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?

When professional journalists and writers are jailed for their work, it’s a tragedy. With the blogging revolution, that tragedy is mushrooming. A new technology which allows individuals to more widely participate in their culture can still fall victim to those who oppose participation — if we allow it to happen.

The Committee to Protect Bloggers has declared Feb. 22 “Free Mojtaba and Arash Day” in honor of two Iranian bloggers currently jailed in Iran. Bloggers around the world today are posting a message like this, and nothing else. We can write tomorrow; they can’t.

You can read the full story over at the original entry on the Florida Free Culture blog.

But there are folks who understand it, and according to them, the EU will likely take yet another stab at adopting — as Cory Doctorow put it — “disastrous, ridiculous American-style software patents” this week. This article in the UK’s Register seems to do a good job of summarizing events. This piece in the Polish Warsaw Business Journal (in English) adds a bit of context.

But though we at FreeCulture.org may not know much about the EU bureaucracy, we know we don’t like software patents. The European Parliament has said it doesn’t, either. Neither do the Dutch Parliament, Spanish Senate, and Danish government. Poland, who put the kibosh on the measure twice so far, said they won’t kill it this time, but rather seek changes.

The public, too, is organizing. The European Foundation for a Free Information Infrastrcture has issued this call to action to collect signatures opposed to software patents. Several members of the European Parliament (MEPs) are signed on, along with other political types, free software folks, companies like MySQL and Opera, student groups — over 26,000 in whole. Signatures from U.S. citizens surely don’t hold as much weight as those from EU member states, but Americans can still sign on to show their solidarity. In addition, the FFII is organizing demonstrations this week — Tuesday in Berlin, Thursday in Brussels — in protest.

Beyond solidarity, there’s more at stake than just Europe. In today’s eWeek, Jim Rapoza calls Poland heroic for fighting software patents, saying:

I do hope that U.S. politicians will take a look at what’s happening in Europe and see enough incentive to take concrete steps toward fixing some of the worst patent abuses and problems—steps such as getting rid of business process patents (goodbye, one-click) or requiring actual working programs rather than broad ideas to patent.

By helping Europe fight its war, we may be helping ourselves fight our own. Register your support while there’s still time. Maybe seeing so many American signatures on a European document will make U.S. legislators wonder what they’re doing wrong.

For more background information on software patents and why we oppose, see my previous blog post.

P.S. The “Thank you, Poland” letter, and its 30,000 signatures, will be presented to a commission of the Polish parliament on Wednesday.

Napster was buying selling them a world where they don’t own the things they buy.

In Napster‘s advertisement which aired during Super Bowl XXXIX — coincidentally, viewer’s least favorite commercial of the night — Napster’s cat mascot holds up a sign informing music downloaders that filling their iPod to capacity with music would cost them $10,000, while Napster’s To Go service offers unlimited downloads to a compatible MP3 player for $15 per month.

What a bargain!

But let’s examine the history first.

Napster, of course, was the program that first brought music downloading and filesharing to the masses. Lauded by some, decried by others, the old Napster suffered legal attacks and succumbed.

But the cat had more lives to live. Napster went legit, paying copyright owners the dues they demanded.

In the intervening time, though, Apple’s iTunes service stole the limelight. The iPod became the dominant portable digital music player — for many, an MP3 player is an iPod, as a photocopier is a Xerox and a digital video recorder is a TiVo .

Some hailed the “$0.99 per song” pricing system, popularized (if not invented) by Apple, as revolutionary. It did seem the logical next step in music downloading. “If consumers want greater selection, if they want the freedom to only buy the tracks they want, here it is,” the industry seemed to say. But Napster says no.

Napster says, “Consumers don’t want to buy music at all: they want to rent it.” Napster To Go charges customers $15 per month for access; if you stop paying, guess what happens to all those songs you downloaded? Well, they’re unplayable.

Imagine: rather than buying a stereo, music lovers pay a monthly fee so their CD player continues to be able to play CDs. Stop paying the RIAA tax, and Hotel California becomes nothing more than a shiny drink coaster.

This is not to say there were no problems with iTunes: there were. But Napster To Go represents a much more extreme departure from past distribution models. Change isn’t always bad, but such a major change warrants more discussion than Napster’s promotional materials grant it.

Additionally, both Napster and iTunes, along with many other for-sale download services, package their product with Digital Rights Management, technological restrictions on the customer’s capabilities. Some of these restrictions can infringe on a customer’s fair use rights; all of them take power away from the paying customer.

Before we accept such a major shift in distribution — perhaps even more major than that which the original Napster wrought, which still relied upon “possession” of songs in some manner — we should confront the issue of if, as a culture, this is the future we want. Otherwise, it may be too late.

It’s not a radical question at all. In President Bush’s inaugural address, he promoted his desire to advance America as an “ownership society.” Do you want to be a permanent tenant in your own computer, in your media, in your culture? Or do you want to own it?

As for me, I want to right to do as I see fit with the things I purchase. I want fair use. I want an ownership society.

Why? Without getting too bogged down in the details, basically, Poland has twice steered the European Union away from accepting the patentability of software. Turning back the tide in the EU is good for all of us.

There are several reasons to oppose software patents. Here are a few:

• Software patents threaten open source software: “The extension of patent law to the field of software represents a fundamental threat to the open-source development model.” – Kiel Institute for World Economics [source]
• Software patents threaten software development and innovation in general: “If people had understood how patents would be granted when most of today’s ideas were invented and had taken out patents, the industry would be at a complete standstill today (1991).” – Bill Gates [source]
• Software patents are disproportionately harmful to smaller companies and independent programmers: “A software patent regime would establish the law of the strong, and ultimately create more injustice than justice.” – Linus Torvalds, Michael Widenius and Rasmus Lerdorf [source]
• Patent offices have a poor track record in judging non-obviousness and prior art: “The problem is particularly acute in the software and Internet fields where the history of prior inventions (often called ‘prior art’) is widely distributed and poorly documented.” – Electronic Frontier Foundation [source]

So, over 28,000 individuals have signed a letter thanking Poland for trying to keep software patents out of the EU. Late this week, the FFII intends to formally hand over the letter and its signatures. So sign on now, and next time you’re in Poland, find the Ministry of Science and Information Technology and say “Thanks.”

Free Culture groups, why not partner with a Polish or European student group to publicly discuss software patents and the status of new member states in the EU?

In the end, we all lose from software patents. To quote the Free Software Foundation: “Most software developers, as well as users, lose from software patents, which do more to obstruct software progress than to encourage it.”

For more information about software patents, see:

• NoSoftwarePatents.com
• FFII‘s Software Patents site
• EFF‘s Patent Busting Project
• League for Programming Freedom’s Software Patents site

Addendum: A few days later, Linus Torvalds is in the news again opposing software patents.

As a consequence, the amount of people with access to Eyes returns to the lucky whose local library has a VHS copy, or those with enough foresight to download a copy while the torrents were still available. We expect the number of possible screenings across the country to decline dramatically from what it could have been.

Of course, Blackside legally can ask Downhill Battle to take down their torrents. Of course, it’s still not legal to publicly show Eyes, since it includes archival footage it no longer has the rights to. But in the end, all that really matters is that a piece of our history is locked away from us.

Free Culture groups may still choose to hold a “community showing” of the film. But you may want to re-write your introduction.

Some in the media took notice of Eyes on the Prize, an award-winning series of documentaries on the civil rights movement. Today, the 1987 series could be a powerful tool to examine the past and forge ahead into the future — if anyone could see them. The only surviving copies, the VHS tapes owned by schools and libraries, are wearing out. These tapes are irreplaceable, literally: licensing disputes over archival footage used in the film prevent it from being re-released.

Leave it to the fine folks at Downhill Battle to scheme up a solution.

Of course, one solution would be to raise the funds to re-buy rights to the archival footage (if the owners were willing to sell). Some are exploring that possibility.

The permanent solution would be a better licensing system that makes it easier and more affordable for filmmakers (and others) to acquire the rights to archival footage and photographs.

Downhill Battle has something more immediate, more powerful, more simple than that, however: Downhill Battle has p2p.

Earlier this week, Downhill Battle launched Eyes on the Screen, calling on anyone with access to the tapes to show them on Feb. 8 at 8 p.m., in recognition of Black History Month. Don’t have a copy? Download it.

Free Culture groups across the country plan to participate. You’re welcome to, too. See if there’s a screening in your area. If not, organize one. Check your local or school library, or download a copy. (If downloading, at your discretion, you may wish to talk to your school’s general counsel. Downhill Battle thinks it’s fair use, but your school may not agree. We won’t dictate a path for you to take.) When you post your screening on the Web site so visitors can find out about it, let people know that the screening is organized by your Free Culture group.

For an even bigger audience, partner with your local NAACP or Black Student Union. We’re sure they’d like to know.

When you screen the film, give a brief introduction to the legal issues surrounding the film and why the current system doesn’t work well. It’s a great chance to tell people about the problems and inefficiencies in our current copyright regime.

The Eyes on the Screen Web site has loads more information. Best of luck to you!

In today’s Gainesville (Fla.) Sun, the article UF file-sharing ban meets opposition explores the controversy over the University of Florida’s ICARUS anti-filesharing software, including our perspective. It’s an interesting article, and rather accurate on the whole; it almost gets our side right.

ICARUS, the Integrated Computer Application for Recognizing User Services, was developed at Florida and installed on the residential (dorm) network in summer 2003. Through a combination of port-blocking and traffic analysis, ICARUS blocks access to peer-to-peer software for the roughly 9,000 students living on campus. Installed after p2p caused “traffic jams” both in the network’s bandwidth and in the student judicial system, ICARUS’ creators have largely considered it successful at limiting these concerns.

We can understand why the university would want to relieve that burden from themselves. But ICARUS places a heavy load on the students, as well. By indiscriminately blocking access to p2p software, ICARUS throws out the baby with the bath water: legal as well as illegal uses are struck down. A student who needs access to a p2p network for material for a class is out of luck. It’d be like banning VCRs because they could be used for copyright infringement. In its blanket ban on filesharing, ICARUS also prohibits academic study of the way p2p networks work.

The article — written by a student himself, I might add, who told us he uses IRC to download movies — summarizes our case in contrast to those who run the network. It glosses over a few key points, though:

“We’ve been very tight-lipped about how it’s designed,” said ICARUS’ creator. But various reports state that ICARUS incorporates the code from open-source programs. If any of that code originates from software licensed under the GPL or another “share-alike” license, ICARUS’ programmers are required to allow access to that code if they modify and distribute it.

Further, the network services coordinator says that any student who needs access to p2p for a legitimate reason can obtain an exemption. However, these exemptions are, of course, not advertised. Unsurprisingly, no one has ever gotten one. But students shouldn’t need an exemption to get use legitimate software in the first place.

The article also oversimplifies this: “Because music is one of many files that can be shared using P2P software, Free Culture … is against online music subscriptions.” We’re not against music subscriptions: if a student chooses to spend their money that way, it’s no concern of us. But we don’t want all housing residents to be required to pay for such a service, particularly when it only allows access to music and no other type of file. The university would be taking away one tool and forcing us to pay for an inferior replacement.

The photo caption is not entirely right either: while Eldo lives in Weaver Hall, I don’t. (I live in East.) We also didn’t form FFC to fight ICARUS, although that is part of what we plan to do. If it was just ICARUS, there would be no FFC.

I also don’t remember being anywhere near as eloquent as my quotes. In particular, I very rarely use the phrase “in harmony.” That’s a blog post for another day.

You gotta admit the photo is pretty cool, though. But damn if it doesn’t make me look pasty.

P.S. As a bit of trivia, the reporter found out about us by posting on LiveJournal.

Addendum: The error in the caption was corrected the following day. (The caption was written by the photographer, not the reporter.) Apparently, the original draft of the article was longer, less dumbed-down, and focused more on FC.

That is not a small number.

Almost weekly, a new report hits the presses: Firefox gaining market share. Firefox creeping up on Microsoft’s Internet Explorer. Firefox earning wide acceptance. Firefox pulling ahead.

The momentum of an immaculately-designed open source program cannot be stopped. Speed, security, ease of use, interoperability, flexibility, standards compliance, internationalization: these are the hallmarks of the best free software. Unsurprisingly, users respond well to those features. Add the responsiveness of programmers, the warm feeling of not signing your life away in a EULA, a sense of community, and a price you can’t beat… Well, you can see why us kids at Free Culture like free software and think it’s the wave of the future.

It’s worth mentioning that Firefox is supported by a user community of more than 63,000 people worldwide . These folks are the backbone of Firefox’s marketing campaigns. These folks, and others, pitched in their pennies to buy a full-page ad in the 16 Dec 2004 New York Times, as well as in the Turkish magazine Focus, and are raising funds now to buy an ad in the Dutch newspaper De Telegraf. No doubt, several FC members are counted among their ranks.

This is the sort of grassroots culture we see possible in the world. This is Free Culture.

Bob Dylan aficionados can all breathe a sigh of relief: Not only does the ever-desired “Minnesota Party Tape” exist, it also has finally become public domain. … It has been copied onto CDs and cassettes so Dylan lovers can listen free at the Minnesota Historical Center library in St. Paul. And that’ll be the only place you can hear the tracks — copies will not be allowed. Imagine all the Dylan’ers who’ll be trekking to St. Paul! (emphasis added)

The column presents an absolute mis-use of the term “public domain”. Wikipedia sums it up like this:

The public domain comprises the body of all creative works and other knowledge in which no person or organization has any proprietary interest, as typically represented by a copyright or patent. Such works and inventions are considered part of the public’s cultural heritage, and anyone can use and build upon them without restriction.

“Without restriction” — obviously not the case with some CDs and cassettes which physically exist only in one location, with copies not allowed. Whether or not the recording is actually in the public domain — that is, the copyright has expired, or the copyright holder has dedicated it to the public domain — is not even addressed in the article. For the Post, apparently, that access to something is free (provided you meet certain conditions — in this case, going to St. Paul) is enough. The right to copy it, take it home, sell it, modify it, or listen to it in another environment — who needs those? As David Rothman writes at TeleRead, “Next thing you know, Dan Glickman (president and CEO of the MPAA) will be saying $15-a-pop movies are in the public domain since anyone can buy a ticket.”

Rothman continues, pointing out that the column not only passed through a reporter’s hands, but a copy desk. “The staffers there didn’t understand ‘public domain,’ and that speaks volumes about the quality and quantity of media coverage of such issues as the Sonny Bono Copyright Term Extenson Act.”

I won’t pretend to know why such a failure occured at the Washington Post. It represents, however, a total misunderstanding of free culture issues in the media. (Keep in mind that the Post is a heavily-read newspaper among legislators, aides, etc. in D.C.) This is a Very Bad Thing.

However, Rothman’s blog represents something good. In the open source movement, the concept is referred to as “many eyes.” If anyone has access to the source code, you’ll certainly have more people reviewing contributed code than if only a few employees review the code. These extra eyes make it more likely that someone will spot weaknesses and holes — and, by extension, make others aware of the problem, and help fix it.

Though writing in a blog can’t directly fix a problem, it can raise awareness of the problem and help explain it. Trent Lott might still be majority leader of the Senate were it not for bloggers irked by his comments at the birthday party of former Senator Strom Thurmond. In 1948, Thurmond ran for president under the pro-segregation Dixiecrat party. Lott remarked of his state, Mississippi, “When Strom Thurmond ran for president, we voted for him. We’re proud of it. And if the rest of the country had followed our lead, we wouldn’t have had all these problems over all these years, either.” Broadcast and print journalists ran the story as a 100-year-old senator’s birthday; blogs kept buzzing over the meaning of Lott’s comment, until the story was picked up by the established press. Later that month, Lott resigned as Senate Majority Leader.

The examples grow daily of news that slips through the established media until it’s caught by bloggers. The Post column is along those lines. Many people have increasing doubt at the efficacy of coprorate journalism in the light of conflicts of interest, media consolidation, and accusations of bias or activism. Blogging represents a new “estate” in journalism in that it offers a simple, democratic way to criticize both the newsmakers of the world and those who write the news.

Free Culture, as an organization, aims to encourage individuals to critique and to contribute, not just to consume the media diet prepared for them by any given source. We can also help educate established journalists on free culture issues so they’re better able to report about important events that affect all of us.
For now, feel free to email the Post and tell them what they did wrong. You might also email the Post’s ombudsman, Michael Getler.

Details seem to be elusive as yet, but the Newsday article would imply that the originating institution will host the material on their Web servers, whereas Harvard’s press release seems to say Google will do the hosting. The question remains: what will the licensing look like on these new, digital editions? While the books themselves are public domain, will their new digital hosts try to impose their own restrictions? Will I be able to read and download the books for free, without registration, and post them on my own server, even modified or in a different format? Will I be able to re-print and sell new printed editions of these tomes? Will they be HTML format, or plain text, or perhaps a proprietary Google format? These are questions that we need to ask, and we should be prepared to lobby the entities involved to let them know that the public wants this to be as free as the air you breathe. update, 16 Dec. 2004: The Detroit Free Press quotes a UMich librarian saying the books will be in a “photographic, high-resolution image” format.

It’s interesting to note that Google is, essentially, launching a multi-million effort to do what volunteers at Project Gutenberg have been doing for decades. PG has published more than 13,000 books online — most from the public domain, a few with permission or under copyleft or Creative Commons licenses — in dozens of languages, spanning nearly every conceivable subject, under a Free license and with an emphasis on usability over the ages (most of the books are published in a plain-text format). I personally have both used and volunteered for PG. (What do you when you have to write that analysis on Alice’s Adventures in Wonderland and you left your copy in your locker? Just download it from PG, of course.) While Google’s project, if done correctly, is hugely laudable and a great step forward for the free dissemination of information, we can’t wait for Google to do everything, and of course, it’s not wise to rely on any one company to that extent anyway. That means there’s still lots we can do in helping get public domain content freely available online. One of the easiest, most immediate ways anyone around the world can help is by volunteering with Distributed Proofreaders. Create an account, read some brief instructions, then start proofreading anyway, knowing your work will help bring a book to public availability, freely, for posterity. (In your account, join the Free Culture team and watch us blaze up the statistics as we apply our mental “CPU cycles” for the public good.) Additionally, Free Culture, as an organization, is uniquely posititioned — as a student movement, we’re (primarily) living, studying, and working right next door to vast stores of information in our colleges’ and universities’ libraries. Organizing chapters to help digitize our libraries’ treasure troves is one of my most prized goals for FC (in the interest of full disclosure, I am a library nerd.) As evidenced by Google’s investment, there’s a huge utility to digitizing printed material — and it’s a hugely exciting development for education and the availability of information worldwide.

As seen on Copyfight: Legal Affairs has an article about Lessig and the FC movement, exploring his cult of personality and accusations of Marxism (which the author refutes). The reporter begins and ends the article by describing an event at which Lessig is speaking… what is exciting is that this event happens to be the launch of FreeCulture.org!

You can actually see many of the events described in the article for yourself if you watch the video of Lessig at Swarthmore, which we have uploaded to the Internet Archive. The “home taping is killing the music industry” t-shirt is the grey t-shirt that Holmes Wilson of DownhillBattle.org is wearing as he and Nicholas Reville introduce Luke and Nelson. You can see the “Swarthmore Coalition for the Digital Commons” sign on the podium, and you can hear the thunder from that rainy night (exactly 52 minutes into the movie).

Think about the implications of that. This video was recorded by a citizen wielding a videocamera, then uploaded to a public server at Archive.org, where it is now available for anyone in the world to watch. Doesn’t this herald the growing power of citizen journalism? By watching this video which records the original event, you can check the facts of this Legal Affairs reporter, and see if they’ve taken the facts out of context. In the analog era you would have had to go to Swarthmore and track down the physical tape on the shelves of the library, or on some individual’s bookshelf. In the era of the internet, we all have equal access to this footage.

What can you do with this power to remember, this access to information and to history? That’s an open-ended question, but the ability to gain access to the past is a vital part of keeping our future free, as 1984 suggests.