CC Community Blogs

This page aggregates blogs by people or organizations who write about CC topics, including people affiliated with CC or jurisdiction projects. To be included, a blog must minimally be under a CC license and contain all highly relevant posts, or be able to provide a feed of all highly relevant posts (e.g. a category feed). Contact if you know of a blog that should be included here. Opinions are those of individual bloggers.

CAD – HDP Topics Of Press Releases

Rob Myers, September 08, 2014 03:44 AM   License: Attribution-ShareAlike 4.0 International

Topics chosen from press releases on the Contemporary Art Daily blog using gensim’s Hierarchical Dirichlet Process model:

exhibition, work, art, works, new, artist, one, gallery, museum, also, paintings, link, time, space, like, painting, york, artists, first, show

art, works, work, exhibition, artist, new, paintings, one, link, museum, painting, also, gallery, space, first, time, series, like, artists, solo

art, works, work, exhibition, new, artist, space, gallery, link, museum, one, form, time, paintings, also, first, painting, artists, sculpture, sculptures

art, exhibition, work, new, works, artist, gallery, painting, space, link, one, like, museum, paintings, first, berlin, solo, also, film, two

art, exhibition, work, new, works, artist, gallery, zobernig, also, one, link, space, two, secession, painting, words, form, like, time, paintings

great, art, offers, artist, exhibition, museum, new, works, work, solo, one, berlin, kudo, photography, world, first, exhibitions, objects, gallery, link

art, new, works, exhibition, work, museum, exhibitions, york, recent, artist, link, gallery, photographs, one, space, berlin, present, artists, oil, sculptures

exhibition, new, art, chapter, works, work, york, artist, paintings, gallery, production, museum, video, link, lieske, basel, made, 2008, sculpture, painting

paintings, white, works, one, zobernig, exhibition, painting, canvas, space, form, work, words, new, paint, gallery, two, like, even, v, also

exhibition, work, space, art, new, gerber, also, artist, paintings, works, tompkins, clear, light, model, ground, rees, link, waves, mason, like

one, new, work, exhibition, art, works, time, hope, artist, paintings, link, first, york, pistoletto, contemporary, gallery, amnesia, kawara, museum, ttinger

paintings, new, works, artist, work, exhibition, wood, sculptures, painting, nicola, series, woolford, first, art, meise, peter, buggenhout, link, sculpture, materials

new, painting, art, oehlen, exhibition, york, paintings, sculptures, work, solo, gallery, albert, one, works, artist, merkel, fecteau, exhibitions, mauss, 2011

works, exhibition, new, painting, images, art, paintings, artist, otto, knapp, lassry, also, link, visual, light, tovborg, hein, image, design, based

art, new, works, museum, exhibition, baldessari, pies, t, work, artist, bernstein, one, pittman, paintings, images, gallery, like, 2009, first, well

works, painting, paintings, exhibition, work, series, art, new, artist, also, one, bessone, green, hylden, gallery, color, link, time, gilliam, like

works, riedel, artist, work, art, exhibition, like, sander, new, objects, also, michael, seem, images, world, paintings, artists, link, form, object

works, exhibition, new, artist, paintings, series, present, one, time, gallery, link, wohnseifer, mosset, tone, museum, reid, solo, pittman, tones, box

exhibition, work, film, sculptures, neill, art, camp, new, genzken, paintings, gonzalez, torres, artist, also, works, artists, sculpture, yes, mmk, wall

new, art, work, exhibition, beery, artist, images, meo, gallery, paintings, link, early, show, york, objects, also, space, body, oehlen, like

Contemporary Art Daily Most Frequently Mentioned Named Entities

Rob Myers, September 07, 2014 07:13 AM   License: Attribution-ShareAlike 4.0 International

Named entities mentioned fifty or more times by press releases in the Contemporary Art Data blog dataset (NLTK):

“Fine Arts”,52
“Venice Biennale”,53
“Stedelijk Museum”,55
“Kunsthalle Basel”,62
“Tate Modern”,63
“New Museum”,65
“San Francisco”,66
“New York City”,83
“American Art”,104
“United States”,112
“Whitney Museum”,123
“Modern Art”,247
“Los Angeles”,374
“New York”,1214

Facecoin at The New Sublime

Rob Myers, September 07, 2014 01:39 AM   License: Attribution-ShareAlike 4.0 International

Facecoin installed at The New Sublime

(Image copyright @shardcore)

Facecoin is being shown in the show The New Sublime at The Phoenix Gallery in Brighton from September 6th-28th 2014.

You can read about Facecoin at The New Sublime here. It’s in some amazing company in the show, do get to see it if you can.

Facecoin is sublime not in the sense of being delightful but in the sense of being an attempt at cognizing the aesthetics of an encounter with a phenomenon overwhelmingly greater than oneself. Rather than God, the landscape, a storm or some other natural or supernatural event, for Facecoin that phenomenon is the activity of cryptocurrency software. The inhuman scale and super-Stakhanivite work of Bitcoin’s network of computers forms an economic Skynet of loving grace. Facecoin offers a way in to contemplating this, and thereby provides an encounter with the sublime.

Simple Word Frequency in Contemporary Art Daily Press Releases

Rob Myers, September 06, 2014 06:26 AM   License: Attribution-ShareAlike 4.0 International

A simple word frequency count of press releases on Contemporary Art Daily (note split city names):


Topics From Press Releases On Contemporary Art Daily

Rob Myers, September 06, 2014 05:03 AM   License: Attribution-ShareAlike 4.0 International

TF-IDF of 25 topics extracted using LDA on press release texts from Contemporary Art Daily:

york, works, work, two, surface, space, solo, show, ribbeck, present, paper, paintings, painting, ortman, one, oehlen, new, manders, made, link, life, gallery, forms, form, first, exhibition, canvas, butzer, based, artists, artist, art
yang, within, time, series, sculptures, quinlan, practice, photographs, objects, like, light, images, also, york, works, work, two, space, show, present, paintings, one, new, made, link, life, gallery, form, first, exhibition, artist, art
sone, place, otto, ontani, knapp, image, floyer, figures, every, even, buren, baer, time, series, light, images, also, works, work, space, present, paintings, one, new, made, link, life, gallery, first, exhibition, canvas, artist
wesley, television, southend, serios, prangenberg, polaroid, order, neill, mirren, mellor, love, los, kowanz, jacques, inherent, goiris, film, clay, camp, angeles, andr, acting, time, like, also, work, show, one, link, exhibition, artists, art
world, way, sculpture, installation, different, film, image, time, series, sculptures, objects, like, light, images, also, works, work, two, space, show, paintings, painting, one, new, made, link, gallery, form, first, exhibition, artist, art
shifu, real, rat, oogway, mullican, matt, m, heikes, book, bear, animals, animal, world, film, even, time, like, images, also, works, work, two, paintings, painting, one, new, link, life, form, exhibition, artist, art
smith, museum, john, contemporary, baldessari, sculpture, los, film, angeles, image, like, images, also, york, works, work, space, solo, show, present, paintings, painting, one, new, made, link, gallery, first, exhibition, artists, artist, art
yet, well, weiner, sound, rosenkranz, merz, melotti, hypnosis, human, gilbert, foulkes, early, darboven, color, boetti, blue, artistic, mullican, matt, world, within, works, work, space, one, new, link, gallery, exhibition, artists, artist, art
three, self, room, mayer, many, jarman, ground, gerber, frue, creed, created, world, different, time, series, like, also, works, work, space, paintings, painting, one, new, link, life, forms, form, exhibition, artists, artist, art
something, paris, materials, kwade, fontaine, everyday, claire, berlin, 2010, world, way, different, image, time, series, sculptures, objects, like, also, works, work, space, show, one, new, made, link, gallery, form, exhibition, artist, art
years, vienna, recent, process, meise, martin, lives, kelm, galerie, exhibitions, paris, berlin, museum, image, series, objects, images, york, works, work, solo, paintings, painting, one, new, link, gallery, form, exhibition, artists, artist, art
history, artistic, museum, world, sculpture, time, series, sculptures, practice, objects, like, also, works, work, two, space, solo, present, paintings, painting, one, new, made, link, gallery, forms, form, first, exhibition, artists, artist, art
v, rather, kind, idea, back, another, abstract, way, place, image, time, series, like, also, works, work, two, space, show, paintings, painting, one, new, made, link, forms, form, first, exhibition, artists, artist, art
wall, spaces, pistoletto, mirror, michelangelo, material, kunstverein, become, materials, contemporary, image, within, objects, like, also, works, work, two, surface, space, present, paintings, painting, one, new, link, gallery, form, first, exhibition, artist, art
wong, together, snake, palermo, may, left, gutai, florence, day, body, material, back, years, martin, human, time, objects, like, also, works, work, two, one, new, link, life, gallery, forms, first, exhibition, artist, art
modern, london, including, group, born, 2009, 2008, recent, lives, exhibitions, berlin, museum, contemporary, series, also, york, works, work, solo, show, present, paintings, painting, one, new, link, gallery, first, exhibition, artists, artist, art
urban, ten, strunz, strau, past, much, minamikawa, klaus, guyton, apple, years, color, image, time, like, also, works, work, space, solo, present, paintings, painting, one, new, link, life, gallery, form, first, exhibition, artist
williams, release, queenland, pirgelis, peter, larry, lara, geys, dibbets, city, camera, buggenhout, blind, bell, almarcegui, back, materials, museum, mullican, series, sculptures, objects, works, work, space, show, painting, new, link, exhibition, artist, art
visual, upon, tobias, subject, since, rehberger, project, production, price, political, others, nashashibi, labour, jochims, jackson, homo, economicus, economic, colour, carlo, burr, berlin, self, sculpture, image, works, work, link, exhibition, artists, artist, art
woolford, various, things, talent, stand, richard, pryor, overton, mccarthy, kunsthalle, house, holzer, hayes, drawings, donelle, counter, bern, years, materials, like, works, work, two, space, show, paintings, one, new, link, first, exhibition, artist
lee, american, modern, including, 2009, history, exhibitions, museum, contemporary, world, time, series, objects, like, also, york, works, work, space, solo, show, paintings, painting, one, new, made, link, gallery, first, exhibition, artist, art
white, social, offers, morris, great, cahn, black, group, body, well, world, time, like, also, york, works, work, space, show, paper, paintings, painting, one, new, link, gallery, form, first, exhibition, artists, artist, art
zobernig, historical, blues, process, exhibitions, museum, contemporary, sculpture, time, sculptures, objects, like, also, works, work, two, space, solo, paintings, painting, one, new, made, link, gallery, forms, form, first, exhibition, artists, artist, art
words, video, sometimes, shaw, red, nathalie, music, marshall, lines, films, dubuffet, double, djurberg, berg, barry, ball, zobernig, black, way, sculpture, figures, series, sculptures, works, two, space, paintings, painting, one, link, form, exhibition
would, want, thought, think, thing, still, see, say, right, really, people, never, know, get, could, always, things, much, kind, back, something, well, world, way, even, time, like, also, work, show, one, art


Open Coursebook in Intellectual Property

James Boyle, August 26, 2014 12:54 PM   License: Attribution 3.0 Unported

Cover of Intellectual Property: Law & the Information Society and link to purchase at Amazon.comDuke’s Center for the Study of the Public Domain is announcing the publication of Intellectual Property: Law & the Information Society—Cases and Materials by James Boyle and Jennifer Jenkins. This book, the first in a series of Duke Open Coursebooks, is available for free download under a Creative Commons license. It can also be purchased in a glossy paperback print edition for $29.99, $130 cheaper than other intellectual property casebooks.

About the book

This book is an introduction to intellectual property law, the set of private legal rights that allows individuals and corporations to control intangible creations and marks—from logos to novels to drug formulae—and the exceptions and limitations that define those rights. It focuses on the three graphmain forms of US federal intellectual property—trademark, copyright and patent—but many of the ideas discussed here apply far beyond those legal areas and far beyond the law of the United States.

The book is intended to be a textbook for the basic Intellectual Property class, but because it is an open coursebook, which can be freely edited and customized, it is also suitable for an undergraduate class, or for a business, library studies, communications or other graduate school class. Each chapter contains cases and secondary readings and a set of problems or role-playing exercises involving the material. The problems range from a video of the Napster oral argument to counseling clients about search engines and trademarks, applying the First Amendment to digital rights management and copyright or commenting on the Supreme Court’s new rulings on gene patents.comic page

Cover of Intellectual Property: Law & the Information Society -- Selected Statutes and Treaties and link to purchase at Amazon.comIntellectual Property: Law & the Information Society is current as of August 2014. It includes discussions of such issues as the Redskins trademark cancelations, the Google Books case and the America Invents Act. Its illustrations range from graphs showing the growth in patent litigation to comic book images about copyright. The best way to get some sense of its coverage is to download it. In coming weeks, we will provide a separate fuller webpage with a table of contents and individual downloadable chapters.  The Center has also published an accompanying supplement of statutory and treaty materials that is available for free download and low cost print purchase.

Why An Open Coursebook Project?

From the Introduction:

“Why do we do this? Partly, we do it because we think the price of legal casebooks and materials is obscene. Law students, who are already facing large debt burdens, are required to buy casebooks that cost $150–$200, and “statutory supplements” that consist mainly of unedited, public domain, Federal statutes for $40 or $50. The total textbook bill for a year can be over $1500. This is not a criticism of casebook authors, but rather of the casebook publishing system. We know well that putting together a casebook is a lot of work and can represent considerable scholarship and pedagogic innovation. We just put together this one and we are proud of it. But we think that the cost is disproportionate and that the benefit flows disproportionately to conventional legal publishers. Some of those costs might have been more justifiable when we did not have mechanisms for free worldwide and almost costless distribution. Some might have been justifiable when we did not have fast, cheap and accurate print on demand services. Now we have both. Legal education is already expensive; we want to play a small part in diminishing the costs of the materials involved.”

Frequently Asked Questions:


So this is just about saving students money?

Not a bad idea! But no, this is not just about price. Our point is not only that the current casebook is vastly too expensive, it is also awkward, inflexible, lacking visual stimulus, incapable of customization and hard to preview and search on the open web. Casebooks do not respond well to the different needs of different professors. Students cannot easily be given free, searchable digital access to all the materials, on all their devices, anywhere, access that does not go away when the course—or the publisher—ends. We can do that.

There are also lots of people outside of law school, or outside this country, who would like to know more about American law—just as there are people outside of computer science who want to know about artificial intelligence. Free is a good price-point for them. Customizable is a good form. This book is merely a beta-test version, but it is an example of what can be done.

The casebook is published under a Creative Commons Attribution, Non Commercial, Share-Alike license. It is available in two ways. First, it can be downloaded for free. No digital rights management. No codes. No expiring permissions. In the weeks to come we will put up a webpage offering downloads of individual and editable chapters. Second, a low cost but high quality paperback version is available at a reasonable price. Our goal has been to keep the price of the casebook below $30—which given the possibility of resale, might make it an environmentally attractive alternative to printing out chapters and then throwing them away. (The companion statutory supplement is available under a similar arrangement—$10 in print and freely downloadable.) We also hope both of these options are useful for those who might want to use the books outside the law school setting or outside the United States. The casebook and the statutory supplement will be available for a combined price of $40, which is $200 below the price of the leading alternatives in those categories. Those who do not want, or cannot afford, to pay that price can use the free digital versions.

Back to FAQs

Is this part of some kind of trend?

We hope so. This is the first in a series of free/low cost legal educational materials to be published by Duke’s Center for the Study of the Public Domain—starting with statutory supplements aimed at the basic classes. The goal of this project, and that of other ones such as the Berkman Center’s fascinating H20 project, or eLangdell, is creatively to improve the pricing and access norms of the world of legal textbook publishing, while offering the flexibility and possibility for customization that unfettered digital access provides. We hope it will provide a pleasant, restorative, competitive pressure on the commercial publishers to lower their prices and improve their digital access norms.

Back to FAQs

Why have a paper version at all?

We have heard from several colleagues, both those who ban laptops in class and those who do not, that an environmentally friendly alternative to printing out statutes and throwing them away would be desirable, particularly one that came with first sale rights and cost less than the comparable course-packet from the law school’s photocopying center.

Back to FAQs

What’s the catch? What kinds of DRM or licensing restrictions are there?

No DRM! The casebook is under a CC BY:NC:SA license. It requires attribution, permits any non commercial use and tells those who modify that they must share the freedoms they were given. After that? It is free to download. Free to copy. Free to modify.

The statutory supplement is under a CC: BY license, allowing unlimited reproduction and modification, including for commercial purposes. If you can undercut our commercial price on the statutes, go right ahead! We’d be delighted! Of course, the underlying statutes and treaties are in the public domain. You can use those without any restrictions. But if you want our preface, chart and editorial comments, you have at least to give attribution.

Back to FAQs

What formats is the casebook available in?

PDF and print for now—other formats (and modular versions) coming soon.

Back to FAQs

So you are against professors who want to be paid for their work and time?

On the contrary. In fact, one of the things we have learned in this process is how poorly both authors and students are being treated by the current system. The authors of casebooks and statutory supplements are generally

a.) unable to give their students digital access to the very books they have just written—unless it is fettered by digital rights management,

b.) unable to customize the material—omitting unwanted chapters or statutes, or adding in new material on the fly,

c.) and—despite the obscene prices on the books—given a relatively low share of the proceeds. All the disadvantages of profiteering with none of the advantages! Personally, we chose to keep the cost as low as possible, but we are fully aware of the labor and creativity required to put together a casebook—we just created one. It does not seem unreasonable to expect a reward to encourage that kind of activity in the future.

Suppose a professor chose to self-publish with a print-on-demand service. (We used CreateSpace, but there are many others.) Suppose she wanted to create an 825 page paperback, 7 in. x 10 in. casebook of her own. (Those are the same dimensions as the typical statute book and about twice as many pages.) Suppose she decided to price it at $60—which would be $100–$120 cheaper than the current casebook she assigns. (Though those, to be fair, are both in hardcover and even larger.) We calculate her per book royalty would be about $25 if bought on Amazon, $13 if bought in a bricks and mortar store; comparable to or larger than her royalty in a conventional publishing contract. Values vary, but to us, saving your debt-strapped students $100 each, while getting that degree of editorial control and that breadth of dissemination, seems like a pretty good deal.

We will be honest. We want very much to tip the norm towards free, unregulated digital access—so the whole world and not just her class can learn from her materials. And we think $60 is high—though not as bad as $160 or $200! But she could require the purchase of a paper copy, which her students could resell when the class is over, while also giving her students free digital access, and get much wider dissemination of and impact from her ideas.

Back to FAQs

What effect will efforts like this have on the textbook industry?

We think it alone will have zero effect. Our initiative is utterly insignificant, less than a fleabite—just a proof of concept. But we actually hope that the inexorable multiplication of projects such as these will be an aid to those still publishing with conventional textbook publishers and—long term—a benign influence on the textbook industry as a whole. To the casebook author trapped in contracts with an existing publishing house: remember when you said you needed an argument to convince them to price your casebook and your supplement more reasonably? Or an argument to convince them to give you more options in making digital versions available to your students in addition to their print copies, but without taking away their first sale rights? Here is one such argument. There are many more either already out there or in the pipeline, all offering slightly different versions of lower cost educational material that can be freely customized. Traditional textbook publishers can compete with free. But they have to try harder. We will all benefit when they do.

Back to FAQs

No one will buy if there is a free digital version. Right?

We disagree. And so do some of the empirics.

Read this and then this.

Back to FAQs

But what about a salesforce? How would that professor be able to get others to adopt her book without mailing it to everyone or having insistent salespeople pounding the halls?

They can read it, instantly, freely anywhere, just by downloading it! They can browse it on the exercise bike or on the train, scan through it on their tablet. Read it in their office. That’s much more efficient. In the world we imagine, professors will be able instantly to browse, search within and assess the pedagogical suitability of a free digital version of a casebook online. Perhaps this will put a merciful end to the never-ending cascade of free but unread casebooks in cardboard mailing boxes and charming but unwelcome casebook representatives in natty business suits; the 1950’s distribution mechanism for the casebook in the halls of the 21st century law school. That mechanism needs to go the way of the whale oil merchant, the typing pool and the travel agent. To the extent that the “justification” offered for today’s prices is that they are needed to pay for the last century’s distribution methods, we would have to disagree politely but emphatically.

Back to FAQs

How long to get an actual copy of the book?

We’ve found it takes about 5 days. Your mileage may vary.

Back to FAQs

Back to this book. What’s in it? Can I have a review copy?

Download it and see. That’s your review copy.

Back to FAQs

Even if you were to help save students some money on textbooks, legal education will still be very expensive, so therefore you should do nothing.

Sure. Have a nice day.

Back to FAQs 

About the authors

James BoyleJames Boyle is William Neal Reynolds Professor of Law at Duke Law School and the former Chairman of the Board of Creative Commons. His other books include The Public Domain: Enclosing the Commons of the Mind; Shamans, Software and Spleens: Law and the Construction of the Information Society; Cultural Environmentalism (with Lawrence Lessig); and Bound By Law (with Jennifer Jenkins).


JennifProf. Jennifer Jenkinser Jenkins is Senior Lecturing Fellow at Duke Law School and the Director of the Center for the Study of the Public Domain. Her recent articles include In Ambiguous Battle: The Promise (and Pathos) of Public Domain Day and Last Sale? Libraries’ Rights in the Digital Age. She is the co-author, with James Boyle, of Bound By Law and the forthcoming Theft! A History of Music.


Agoric Aesthetics & Philosophy

Rob Myers, August 20, 2014 06:51 AM   License: Attribution-ShareAlike 4.0 International

Agorizing aesthetics and philosophy means producing them using market pricing mechanisms. The model for this is the market-based software of agoric computing. The advantage of such a system is that it incentivises both production and efficiency. By internalizing market forces, the perverse incentives of gamified systems such as academic research points can be avoided.

An agoric system needs a currency, for efficiency’s sake we will use a cryptocurrency. There are several ways of implementing a currency for an agoric system using cryptocurrency systems. We can use coloured coins, nxt or Counterparty assets, or Ethereum contracts similar to the Token System example in the Ethereum White Paper to create coins, tokens, or other quantifiable valences. For simplicity’s sake I will call all of these “tokens”. Different implementations allow different capabilities: fungibility, revocation, transferrability.

An artist group or artistic movement can use a store of tokens allocated by vote or other mechanism to artists or artworks that they deem part of the movement and its output. The Cypherfunks project is an existing example of such a system. Such a system combines the nominative practices of Dadaist, Conceptual and some Pop/Post-Pop art with the social and aesthetic function of materially identifying in and out groups. A single-artist token could be used to create an oeuvre in the style of Duchamp or Kostabi.

Art critics can use tokens to embody critique. A single-value token can be used to embody critical approval, a pair of oppositely valanced tokens to represent approval/opprobrium (and to revise critical opinion should it later change), a family of tokens with different star rankings can be used to implement a star system at the cost of fungibility. The critic sends tokens either to the artist’s address in the cryptocurrency system or to an address representing the hash or proxy hash of the artwork. The artist or artwork’s standing can be found by counting the number and kind of critical tokens associated with it.

Philosophical treatises can be constructed agorically. Axioms and citations, logical and rhetorical moves can be assigned point costs either as classes (premise, objection, rebuttal) or individually (Derrida, Arendt, Meillassoux). Each usage increases the price of the essay. Point costs and budgets can be assigned per hundred words or for a given form (short essay, review, thesis, journal article etc.) or context (particular journals, web sites, or educational institutions). Essays are then written to the budget. Or price essays according to the system and then let publishers (and readers) choose which to consume on that basis. For a more dynamic system prices can be set using a PageRank-style system as a product of the cost of cited works.

Pricing this essay is left as an exercise for the reader…

So you’ve invented fantasy football, now what?

James Boyle, August 16, 2014 10:13 AM   License: Attribution 3.0 Unported

We are posting excerpts from our new coursebook Intellectual Property: Law and the Information Society which will be published in two weeks is out now! It will be is of course  freely downloadable, and sold in paper for about $135 less than other casebooks.  (And yes, it will include  discussions  of whether one should ever use the term “intellectual property.” )  The book is full of practice examples..  This is one from Chapter One, on the theories behind intellectual property: “What if you came up with the idea of Fantasy Football?”  No legal knowledge necessary.  Why don’t you test your argumentative abilities…?  CoverConcept03b

(Book Coming Soon!  Book Out now!  Needless to say, in this and all exercises in the book, the facts are either entirely made up or significantly altered to generate a better discussion]

Problem 1-2

Justifying and Limiting.

It is early in the days of the web and you and your friends have just had a great idea. You are avid football fans, fond of late night conversations about which team is really the best, which player the most productive at a particular position. Statistics are thrown about. Bragging is compulsory. Unlike other casual fans, you do not spend all your time rooting for a particular team. Your enjoyment comes from displaying your knowledge of all the players and all the teams, using statistics to back up your claims of superiority and inferiority. You find these conversations pleasant, but frustrating. How can one determine definitively who wins or loses these debates? Then you have a collective epiphany. With a computer, the raft of statistics available on football players could be harvested to create imaginary teams of players, “drafted” from every team in the league, that would be matched against each other each week according to a formula that combined all the statistics into a single measure of whether your team “won” or “lost” as against all your friends’ choices. By adding in prices that reflected how “expensive” it was to choose a particular player, one could impose limits on the tendency to pick a team composed only of superstars. Instead, the game would reward those who can find the diamond in the rough, available on the cheap, who know to avoid the fabled player who is actually past his best and prone to injury.

At first, you gather at the home of the computer-nerd in your group, who has managed to write the software to make all this happen. Then you have a second epiphany. Put this online and everyone could have their own team—you decide to call them FANtasy Football Teams, to stress both their imaginary nature and the intensity of the football-love that motivates those who play. Multiple news and sports sites already provide all the basic facts required: the statistics of yardage gained, sacks, completed passes and so on. The NFL offers an “official” statistics site, but many news outlets collect their own statistics. It is trivial to write a computer program to look up those statistics automatically and drop them into the FANtasy game. Even better, the nature of a global network makes the markets for players more efficient while allowing national and even global competition among those playing the game. The global network means that the players never need to meet in reality. FANtasy Football Leagues can be organized for each workplace or group of former college friends. Because the football players you draft come from so many teams, there is always a game to keep track of and bragging to be done on email or around the water cooler.

FANtasy Football is an enormous success. You and your friends are in the middle of negotiations with Yahoo! to make it the exclusive FANtasy Football League network, when you receive a threatening letter from the NFL. They claim that you are “stealing” results and statistics from NFL games, unfairly enriching yourself from an activity that the league stages at the cost of millions of dollars. They say they are investigating their legal options and, if current law provides them no recourse, that they will ask Congress to pass a law prohibiting unlicensed fantasy sports leagues. (Later we will discuss the specific legal claims that might actually be made against you under current law.) As this drama is playing out, you discover that other groups of fans have adapted the FANtasy Football idea to baseball and basketball and that those leagues are also hugely popular.

i.) Your mission now is to lay out the ethical, utilitarian or economic arguments that you might make in support of your position that what you are doing should not be something the NFL can control or limit—whether they seek to prohibit you, or merely demand that you pay for a license. What might the NFL say in support of its position or its proposed law?

ii.) Should you be able to stop the “copycat” fantasy leagues in baseball and basketball? To demand royalties from them? Why? Are these arguments consistent with those you made in answer to question i.)?  Read the Locke excerpt (below) before you answer the questions.

John Locke, Of Property

Two Treatises on Government

§ 26. Though the earth and all inferior creatures be common to all men, yet every man has a “property” in his own “person.” This nobody has any right to but himself. The “labour” of his body and the “work” of his hands, we may say, are properly his. Whatsoever, then, he removes out of the state that Nature hath provided and left it in, he hath mixed his labour with it, and joined to it something that is his own, and thereby makes it his property. It being by him removed from the common state Nature placed it in, it hath by this labour something annexed to it that excludes the common right of other men. For this “labour” being the unquestionable property of the labourer, no man but he can have a right to what that is once joined to, at least where there is enough, and as good left in common for others.

§ 27. He that is nourished by the acorns he picked up under an oak, or the apples he gathered from the trees in the wood, has certainly appropriated them to himself. Nobody can deny but the nourishment is his. I ask, then, when did they begin to be his? when he digested? or when he ate? or when he boiled? or when he brought them home? or when he picked them up? And it is plain, if the first gathering made them not his, nothing else could. That labour put a distinction between them and common. That added something to them more than Nature, the common mother of all, had done, and so they became his private right. And will any one say he had no right to those acorns or apples he thus appropriated because he had not the consent of all mankind to make them his? Was it a robbery thus to assume to himself what belonged to all in common? If such a consent as that was necessary, man had starved, notwithstanding the plenty God had given him. We see in commons, which remain so by compact, that it is the taking any part of what is common, and removing it out of the state Nature leaves it in, which begins the property, without which the common is of no use. And the taking of this or that part does not depend on the express consent of all the commoners. Thus, the grass my horse has bit, the turfs my servant has cut, and the ore I have digged in any place, where I have a right to them in common with others, become my property without the assignation or consent of anybody. The labour that was mine, removing them out of that common state they were in, hath fixed my property in them. . . .

§ 29. Thus this law of reason makes the deer that Indian’s who hath killed it; it is allowed to be his goods who hath bestowed his labour upon it, though, before, it was the common right of every one. And amongst those who are counted the civilised part of mankind, who have made and multiplied positive laws to determine property, this original law of Nature for the beginning of property, in what was before common, still takes place, and by virtue thereof, what fish any one catches in the ocean, that great and still remaining common of mankind; or what amber-gris any one takes up here is by the labour that removes it out of that common state Nature left it in, made his property who takes that pains about it. And even amongst us, the hare that any one is hunting is thought his who pursues her during the chase. For being a beast that is still looked upon as common, and no man’s private possession, whoever has employed so much labour about any of that kind as to find and pursue her has thereby removed her from the state of Nature wherein she was common, and hath begun a property.

§ 30. It will, perhaps, be objected to this, that if gathering the acorns or other fruits of the earth, etc., makes a right to them, then any one may engross as much as he will. To which I answer, Not so. The same law of Nature that does by this means give us property, does also bound that property too. “God has given us all things richly.” Is the voice of reason confirmed by inspiration? But how far has He given it us “to enjoy”? As much as any one can make use of to any advantage of life before it spoils, so much he may by his labour fix a property in. Whatever is beyond this is more than his share, and belongs to others. Nothing was made by God for man to spoil or destroy. And thus considering the plenty of natural provisions there was a long time in the world, and the few spenders, and to how small a part of that provision the industry of one man could extend itself and engross it to the prejudice of others, especially keeping within the bounds set by reason of what might serve for his use, there could be then little room for quarrels or contentions about property so established.

§ 31. But the chief matter of property being now not the fruits of the earth and the beasts that subsist on it, but the earth itself, as that which takes in and carries with it all the rest, I think it is plain that property in that too is acquired as the former. As much land as a man tills, plants, improves, cultivates, and can use the product of, so much is his property. He by his labour does, as it were, enclose it from the common. Nor will it invalidate his right to say everybody else has an equal title to it, and therefore he cannot appropriate, he cannot enclose, without the consent of all his fellow-commoners, all mankind. God, when He gave the world in common to all mankind, commanded man also to labour, and the penury of his condition required it of him. God and his reason commanded him to subdue the earth—i.e., improve it for the benefit of life and therein lay out something upon it that was his own, his labour. He that, in obedience to this command of God, subdued, tilled, and sowed any part of it, thereby annexed to it something that was his property, which another had no title to, nor could without injury take from him.

§ 32. Nor was this appropriation of any parcel of land, by improving it, any prejudice to any other man, since there was still enough and as good left, and more than the yet unprovided could use. So that, in effect, there was never the less left for others because of his enclosure for himself. For he that leaves as much as another can make use of does as good as take nothing at all. Nobody could think himself injured by the drinking of another man, though he took a good draught, who had a whole river of the same water left him to quench his thirst. And the case of land and water, where there is enough of both, is perfectly the same.

§ 33. God gave the world to men in common, but since He gave it them for their benefit and the greatest conveniencies of life they were capable to draw from it, it cannot be supposed He meant it should always remain common and uncultivated. He gave it to the use of the industrious and rational (and labour was to be his title to it); not to the fancy or covetousness of the quarrelsome and contentious. He that had as good left for his improvement as was already taken up needed not complain, ought not to meddle with what was already improved by another’s labour; if he did it is plain he desired the benefit of another’s pains, which he had no right to, and not the ground which God had given him, in common with others, to labour on, and whereof there was as good left as that already possessed, and more than he knew what to do with, or his industry could reach to.

§ 34. It is true, in land that is common in England or any other country, where there are plenty of people under government who have money and commerce, no one can enclose or appropriate any part without the consent of all his fellow commoners; because this is left common by compact—i.e., by the law of the land, which is not to be violated. And, though it be common in respect of some men, it is not so to all mankind, but is the joint propriety of this country, or this parish. Besides, the remainder, after such enclosure, would not be as good to the rest of the commoners as the whole was, when they could all make use of the whole; whereas in the beginning and first peopling of the great common of the world it was quite otherwise. The law man was under was rather for appropriating. God commanded, and his wants forced him to labour. That was his property, which could not be taken from him wherever he had fixed it. And hence subduing or cultivating the earth and having dominion, we see, are joined together. The one gave title to the other. So that God, by commanding to subdue, gave authority so far to appropriate. And the condition of human life, which requires labour and materials to work on, necessarily introduce private possessions.


1.) Which side in Problem 1-2 can appeal to Locke’s arguments? The NFL? The FANtasy Football Players? Both? Find the passage that supports your answers.

2.) Should Locke’s argument apply to information goods? Why? Why not?

3.) Locke talks about a realm that is “left common by compact.” What does this consist of in the realm of information? Would Locke imagine that private property needs to be introduced to the “great common” of the information world, just as it was to the wilderness?

Dozens of organizations tell STM publishers: No new licenses

Communia Association, August 07, 2014 04:46 PM   License: CC0 1.0 Universal

The keys to an elegant set of open licenses are simplicity and interoperability. CC licenses are widely recognized as the standard in the open access publishing community, but a major trade association recently published a new set of licenses and is urging its members to adopt it. We believe that the new licenses could introduce unnecessary complexity and friction, ultimately hurting the open access community far more than they’d help.

Today, COMMUNIA and 57 organizations from around the world released a joint letter asking the International Association of Scientific, Technical & Medical Publishers to withdraw its model “open access” licenses. The association ostensibly created the licenses to promote the sharing of research in the scientific, technical, and medical communities. But these licenses are confusing, redundant, and incompatible with open access content published under other public licenses. Instead of developing another set of licenses, the signatories urge the STM Association to recommend to its authors existing solutions that will truly promote STM’s stated mission to “ensure that the benefits of scholarly research are reliably and broadly available.” From the letter:

We share a positive vision of enabling the flow of knowledge for the good of all. A vision that encompasses a world in which downstream communicators and curators can use research content in new ways, including creating translations, visualizations, and adaptations for diverse audiences. There is much work to do but the Creative Commons licenses already provide legal tools that are easy to understand, fit for the digital age, machine readable and consistently applied across content platforms.

So, what’s really wrong with the STM licenses? First, and most fundamentally, it is difficult to determine what each license and supplementary license is intended to do and how STM expects them each to be used. The Twelve Points to Make Open Access Licensing Work document attempts to explain its goals, but it is not at all clear how the various legal tools work to meet those objectives.

Second, none of the STM licenses comply with the Open Definition, as they all restrict commercial uses and derivatives to a significant extent. And they ignore the long-running benchmark for Open Access publishing: CC BY. CC BY is used by a majority of Open Access publishers, and is recommended as the optimal license for the publication, distribution, and reuse of scholarly work by the Budapest Open Access Initiative.

Third, the license terms and conditions introduce confusion and uncertainty into the world of open access publishing, a community in which the terminology and concepts utilized in CC’s standardized licenses are fairly well accepted and understood.

Fourth, the STM licenses claim to grant permission to do many things that re-users do not need permission to do, such as describing or linking to the licensed work. In addition, it’s questionable for STM to assume that text and data mining can be regulated by their licenses. Under the Creative Commons 4.0 licenses, a licensor grants the public permission to exercise rights under copyright, neighboring rights, and similar rights closely related to copyright (such as sui generis database rights). And the CC license only applies when at least one of these rights held by the licensor applies to the use made by the licensee. This is important because in some countries, text and data mining are activities covered by an exception or limitation to copyright (such as fair use in the United States), so no permission is needed. Most recently the United Kingdom enacted legislation specifically excepting noncommercial text and data mining from the reach of copyright.

Finally, STM’s “supplementary” licenses, which are intended for use with existing licenses, would only work with CC’s most restrictive license, Attribution-NonCommercial-NoDerivatives (BY-NC-ND). Even then they would have very limited legal effect, since much of what they claim to cover is already permitted by all CC licenses. As a practical matter, these license terms are likely to be very confusing to re-users when used in conjunction with a CC license.

The Creative Commons licenses are the demonstrated global standard for open access publishing. They’re used reliably by open access publishers around the world for sharing hundreds of thousands of research articles. Scholarly publishing presents a massive potential to increase our understanding of science. And creativity always builds on the past, whether it be a musician incorporating samples into a new composition or a cancer researcher re-using data from past experiments in their current work.

But to fully realize innovations in science, technology, and medicine, we need clear, universal legal terms so that a researcher can incorporate information from a variety of sources easily and effectively. The research community can enable these flows of information and promote discoveries by sharing writings, data, and analyses in the public commons. We’ve already built the legal tools to support content sharing. Let’s use them and not reinvent the wheel.

Proprietary profitability as a key metric for open access and open source

Mike Linksvayer, August 07, 2014 04:27 PM   License: CC0 1.0 Universal

Glyn Moody in Beyond Open Standards and Open Access:

Like open source, open access is definitely winning, even if there is some desperate rearguard action by the publishers, who are trying to protect their astonishing profit margins – typically 30-40%.

No doubt open source and open access have progressed, but the competition maintaining astonishing profit margins contradicts “definitely winning.” For publishing, see Elsevier, £0.8b profit on £2.1b revenue, and others. For software most pertinent to Moody’s post (concerning Open Document Format), see Microsoft’s business division, $16b profit on $24b revenue.

These profits coupled with the slow relative progress of open source and open access give proprietary vendors huge range to not only take “desperate rearguard action” but also to create new products and forms of lock-in with which the commons is continually playing catch-up.

We know what the commons “definitely winning” looks like — Linux (server software) and Wikipedia (encyclopedias) — and it includes proprietary vendor profit margins being crushed, most going out of business, and those remaining transitioning to service lines of business less predicated on privatized censorship.

When libraries begin mass cancellation of toll access journal subscriptions and organizations of all sorts cancel Microsoft, Adobe, and similar software subscriptions, then we can consider whether open access and open source are definitely winning. Until then the answer is definitely no.

As for what’s next for open standards and open access (Moody suggests further ODF mandates, which would be fine), the obvious answer is open source. It’s what allows realization of the promise of open standards, and the cancellation of Microsoft subscriptions. It’s also what’s next for academic publishing and everything else — what is not software will be obsolete — though cancellation of those toll access subscriptions is going to require going back to basics.

Free/open/commons advocates should consider destruction of proprietary competition profitability a key aim and metric of success or lack thereof, for both open products and policy. This metric has several benefits:

  • Indicates relative progress. Any non-moribund project/movement can make seeming progress, blind to different and potentially much greater progress by competition.
  • Implicates role of knowledge economy and policy in increasing or decreasing equality (of income and wealth, not just access).
  • Hard numbers, data readily available.
  • It’s reasonable to multiply destruction of proprietary profits when characterizing gains (so as to include decrease in deadweight loss).

Fear Of Smart Contracts

Rob Myers, August 07, 2014 08:16 AM   License: Attribution-ShareAlike 4.0 International

Babylon, 1772BC, about tea time.
King Hammurabi is explaining the idea of laws to several learned persons.

Hammurabi: So these laws will regulate how we go about our business in society, backed by the coercive power of the state.

Learned Person 1: Hang on. These laws seem to create a causal and moral domain of their own distinct from mere human intercourse. What if they go wrong?

Learned Person 2: Yes, yes! And what if they act against society? Or are written to be evil.

Hammurabi: I’m your king. I would never write bad laws.

Learned Person 1: Yes but suppose a bad king took over. What then? We need something to protect society from these “laws” if they go wrong.

Learned Person 3: Indeed. Most indeededly so.

Hammurabi: Well alright. I’ll add some laws governing the creation and application of laws. That way, laws can be used to govern laws.

Learned Person 3: But that would be like asking the wolf to account for his consumption of lambs!

Learned Person 1: Yes I really don’t see how using laws to alleviate the potential harm of laws works. That’s just circular logic.

Learned Person 4: Yes. What next? Perpetual motion? You’re just begging the question.

Hammurabi: I’m your ****ing king! Shut up and agree with me!

Learned Person 3: If we shut up how are we to agree with you? What do your “laws” say about that?

Learned Person 2: Yeah. There should be laws against people like you…

Hammurabi: GUARDS!

Did Spain just declare war on the commons?

Communia Association, August 06, 2014 12:11 PM   License: CC0 1.0 Universal

Two weeks ago the lower chamber of the Spanish parliament approved a number of changes to Spain’s Intellectual Property Law that directly threaten the ability of Spanish internet users to contribute to the commons. The law introduces a number of modifications to copyright law that expand the scope of exclusive rights over areas that were previously outside of the exclusive rights of copyright holders at the expense of users rights and the public domain.

The main reason for this law seems to be the desire of Spanish newspaper publishers to get a legally guaranteed income stream from news aggregation sites. What is happening in Spain is a modification of the (largely failed) attempt by German news publishers to make news aggregators (such as Google News) pay for using small parts of news articles that they link to.

Compared to the German attempt, the Spanish approach is more elaborate, and more dangerous. While the German legislators simply created an ancillary right for press publishers and left it up to the publishers whether and how to enforce, waive or license the right, the Spanish law (English translation of the relevant bits here) approaches it from the user side of the equation:

Here, the law creates a right for ‘electronic content aggregation providers’ to use ‘non-significant fragments of aggregated content which are disclosed in periodic publications or on websites which are regularly updated’ without the permission of the rights holder. However such uses require payment of a ‘fair remuneration’ to the rights holder (via a collecting society). This is a right that content providers already have and can choose to license or waive assuming the non-significant fragments are copyrightable and absent an applicable exception or limitation.  What this new legislation does is eliminate the ability of providers to choose how to exercise this right, and impose a mandatory royalty on reusers even for content that has been made available under a public license such as Creative Commons or that is otherwise available under an exception to copyright or in the public domain.

Collateral damage

While at first this may sound like a limitation of the exclusive rights of publishers, this construction works in the opposite direction. Because the new right is unwaivable, creators and publications who want to encourage others to reuse their content cannot waive the requirement that users must pay for aggregating their content. With this construction the proposed law aims to make sure that publishers cannot decide to not enforce their right when the publishers actually benefit from the activities provided through aggregation platforms (as has been done in Germany). Unfortunately the unwaivable nature of this new right has the potential to cause massive collateral damage among other internet users.

As the new right would apply to all ‘content disclosed in periodic publications or on websites which are regularly updated’ it would not only apply to traditional news publications but pretty much any website that is regularly updated (such as a blog). While traditional publishers may welcome this new right, it is fair to assume that there is a substantial number of creators and publishers who do not want to be remunerated for re-use of non-significant fragments taken from their websites either because their business models is based on traffic or because they want to share their writings as widely as possible.

Even worse the new law also threatens render ineffective the Creative Commons licenses that are used by many creators to explicitly allow others to reuse their creations for free in many situations. By making the right unwaivable aggregators are required to pay fair remuneration to a collective rights management organisations even if a creator has chosen to apply a Creative Commons license that allows the free reuse of her creation.

These negative effects of the new law do not limit themselves to the field of blogging and general web publishing. Over at Global Voices, Renata Avila makes the case that the revised law would also impact open access publishing activities by Spanish scholars and academic institutions:

The current reform of Spain’s copyright law incorporates a new levy on universities that is related to open access to publications. Under the policy, universities that want to share research or other content for free will be prohibited from doing so beyond the confines of their institution and personnel. In other words, if you are an author from a university and you want to share beyond the academic world and someone links to your journal article, that person must pay even if you do not even want the payment. A percentage of these fees will be collected by the Spanish agency CEDRO (Centro Español de Derechos Reprográficos) and the virtual campuses of universities will be required to comply.

Given the above it is clear that what may have started as another ill-conceived attempt to support the failing business models of traditional publishers by extending the scope of copyright is in fact a massive attack on the commons and business models that do not rely on limiting access to creative works. Not only does this have negative effects on the users of copyrighted works but it also frustrates authors’ right to choose how to share their works and under what terms.

As such the upcoming amendment of the spanish IPR law is another illustration of the dangers of looking at copyright law primarily as an enabler of a specific set of business models.

Object Oriented Ontology Critique Response Generator

Rob Myers, August 02, 2014 03:53 AM   License: Attribution-ShareAlike 4.0 International

You’re missing the point.

Generative acknowledgement

Mike Linksvayer, August 01, 2014 06:03 AM   License: CC0 1.0 Universal

Robin Sloan, The secret of Minecraft: And its challenge to the rest of us

In the 2010s and beyond, it is not the case that every cultural product ought to be a generative, networked system.

It is, I believe, the case that all the really important ones will be.

Nathan Matias, Designing Acknowledgement on the Web:

A system which acknowledges the beauty of cooperative relationships can’t be based on the impersonal idea of hypertext or the egocentric notion of authorship. It can’t rely on licenses to threaten people into acknowledging each other.

Via 1 2 3 and confirmation bias about which I can’t think of anything smart to say, so I’ll include a fun word: contextomy. Neither of the above reaches that bar, but I’ll try harder next time.

Posts on the ought of generative, networked production and intellectual parasite debasement of acknowledgement.

EU copyright consultation: Rights Holders are from Mars, Users are from Venus

Communia Association, July 29, 2014 08:51 AM   License: CC0 1.0 Universal

Last week the European Commission published its ‘Report on the responses to the Public Consultation on the Review of the EU Copyright Rules‘. This report summarizes the more than 11.000 responses that the Commission had received in reaction to the copyright consultation held between December 2013 and March of this year. While it is clear that a 100-page document cannot do justice to all of the responses (our own response measured in at 24 pages), the report is informative in a number of ways.

Maybe the most striking (although unsurprising) insight that can be gained from reading the report is that stakeholders are completely divided in their perception of how well EU copyright law meets the requirements of the digital environment: Citizens and institutional users think this is not the case while authors and other rightholders are convinced it does. Over at governance across borders Leonhard Dobusch has done an excellent job at illustrating this fact:


source: governance across borders (CC-BY / Leonhard Dobusch)

From the perspective of anyone interested in making copyright work this is a massive problem. It is widely accepted that copyright should strike a balance between the interests of creators (to control their creations and to be able to make a living of their creativity) and the interests of society (access to information and culture, freedom of expression). Seen in this light the fact that one side is (more or less) happy with the current balance and the other one is not (at all) happy is highly problematic. Copyright – like any other system of norms – can only function when it is perceived as justified and fair by all stakeholders. The above illustration shows that acceptance of the system in its current form is extremely one-sided.

Under normal circumstances such a pattern in a consultation related to an important policy field as copyright would be a clear signal for lawmakers that the system needs to be reformed.

Quite obviously that is not the case here: The Commission’s leaked draft of the EU white paper on copyright policy from June clearly sided with the position taken by rights holders and their representatives — so much that it had to be sent back for a rework after objections from two Commissioners. As I have argued before, a big reason for this state of affairs seems to be that the Commision has not managed to accept that citizens and public institutions are genuine stakeholders in this discussions about copyright policy.


source: own analysis, see here for more information on the method

This is illustrated by the Commission’s own report on the responses to the consultation. The above chart shows that users are underrepresented in the Commission’s summary of the responses received. The most interesting fact is not the relative under-representation with regard to the amount of responses, but the absolute word counts of the different stakeholder. The Commission gives more voice to the positions of rights holders than that of other stakeholders.

Two decades after the digital revolution, citizens and public institutions should be considered direct stakeholders in discussions about copyright policy. However, the policy makers themselves are still grappling with this fact. The massive response from individual users (and to a lesser extent public institutions) shows us that for them the current copyright rules do not work any longer. Policy makers interested in preserving the legitimacy of the system would be well advised to confront this reality and start working on a meaningful overhaul of the system that reinstates a balance between the interests of all stakeholders involved.

Free/Low Cost Intellectual Property Statutory Supplement

James Boyle, July 26, 2014 02:52 PM   License: Attribution 3.0 Unported

Today, we are proud to announce the publication of our 2014 Intellectual Property  Statutory Supplement as a freely downloadable Open Course Book. Statutes Cover  It offers the full text of the Federal Trademark, Copyright and Patent statutes (including edits detailing the changes made by the America Invents Act.)  It also has a number of important international treaties and a  chart which compares the various types of Federal intellectual property rights — their constitutional basis, subject matter, length, exceptions and so on.You can see it here in print, or download it for free, here(I recommend right click/control clicking it and choosing “save as.”  But you can have it open in a browser window if you want.)

We want to thank Mr. Balfour Smith, the coordinator of the Center of the Study of the Public Domain, who pulled so many laboring oars on this project that he must have thought he was a galley slave.

Frequently Asked Questions: 

Why do this?

We are motivated in part by the outrageously steep cost of legal teaching materials, (and the increasing restrictions on those materials — such as the removal of the right of first sale).    This book is intended for use with our forthcoming Intellectual Property casebook (coming in the Fall) but can also be used as a free or low cost supplement for basic Intellectual Property courses — at the college, law school or graduate school levels. Whether or not you buy it, the free download will at the very least gives you a statutory reference book for those times when internet access is unavailable, and you just need to scratch that intellectual property research itch.    The book is also available at cost of production — about $10.50 — as a handsomely covered paperback. Most of the current Intellectual Property Statutory & Treaty Supplements are $45-$50.

Is this part of some kind of trend?

We hope so.  This is the first in a series of free/low cost statutory supplements to be published by Duke’s Center for the Study of the Public Domain – aimed at all the basic classes. The goal of this project, and that of other ones such as the Berkman Center’s fascinating H20 project,  and eLangdell is creatively to improve the pricing and access norms of the world of legal textbook publishing, while offering the flexibility and possibility for customization that unfettered  digital access provides. We hope it will provide a pleasant, restorative, competitive pressure on the commercial publishers to lower their prices and improve their digital access norms.

Why have a paper version at all?

We have heard from several colleagues, both those who ban laptops in class and those that do not, that an environmentally friendly alternative to printing out statutes and throwing them away would be desirable, particularly one that came with first sale rights!

What’s the catch?  What kinds of DRM or licensing restrictions are there?

None.  The supplement is under a CC: BY license, allowing unlimited reproduction and modification, including for commercial purposes. Of course, the underlying statutes and treaties are in the public domain.  You can use those without even providing attribution.

What formats is it available in?

PDF for now — other formats (and modular versions) coming soon.

Yes, but this is just the statutes and treaties.  Fat chance you are going to give your casebook away free too!

Actually, we are.  That will be under a CC BY, NC SA (a license that requires attribution, permits any non commercial use and tells those who modify that they must share the freedoms they were given.)   It will be free to download and also available in a low cost print version — probably around $30, given its length, which would be about $130 cheaper than the other Intellectual Property casebooks

So you are against professors who want to be paid for their work and time?

On the contrary.  In fact, one of the things we have learned in this process is how poorly both authors and students are being treated by the current system.  The authors of casebooks and statutory supplements are generally a.)  unable to give their students digital access to the very books they have just written — unless it is fettered by digital rights management b.) unable to customize the material — omitting unwanted chapters or statutes, or adding in new material on the fly c.)  and — despite the enormous, obscene prices on the books — given a relatively low share of the proceeds. We chose to keep the cost as low as possible, but we are fully aware of the labour and creativity required to put together a casebook — we are creating one right now!  Suppose a professor chose to self-publish with a print on demand service.  (We used Createspace, but there are many others.)  Suppose she wanted to create an 825 page paperback casebook; (in part because she did not need to include all those chapters she does not teach.)  Suppose she decided to price it at $60 — which would be $100 cheaper than the current casebook.  (Though those, to be fair, are both in hardcover and very large.)  Here is the screenshot of what her royalty payments would look like.  (The calculator is here.  Click the “Royalties” tab.)  And remember this is just one print on demand service.  There are many others.

Createspace Pricing

We will be honest.  We want very much to tip the norm towards free, unregulated digital access — so the whole world and not just her class can learn from her materials.  And we think $60 is a little high — though not as bad as $165!  But she could require the purchase of a paper copy, which her students could resell when the class is over, while also giving her students free digital access, and get much wider dissemination of and impact from her ideas.  Actually, we hope that the inexorable multiplication of projects such as these will be an aid to those still publishing with conventional textbook publishers. To the casebook author trapped in contracts with an existing publishing house: remember when you said you needed an argument to convince them to price your casebook and your supplement more reasonably? Or an argument to convince them to give you more options in making digital versions available to your students in addition to their print copies, but without taking away their first sale rights?  Here is one such argument.  There are many more either already out there or in the pipeline.  Traditional textbook publishers can compete with free.  But they have to try harder. We will all benefit when they do.

But what about a salesforce?  How would she be able to get others to adopt her book without mailing it to everyone or having insistent salespeople pounding the halls?

They can read it, instantly, freely anywhere, just by downloading it!  They can browse it on the exercise bike or on the train, scan through it on their tablet.  Read it in their office.  That’s much more efficient.  In the world we imagine, professors will be able instantly to browse, search within and assess the pedagogical suitability of a free digital version of a casebook online.  Perhaps this will put a merciful end to the never-ending cascade of free but unread casebooks in cardboard mailing boxes and charming but unwelcome casebook representatives in natty business suits that constitutes the 1950’s distribution mechanism for the casebook in the halls of the 21st century law school.  That mechanism needs to go the way of the whale oil merchant, the typing pool and the travel agent.  To the extent that the “justification” offered for today’s prices is that they are needed to pay for the last century’s distribution methods, we would have to disagree politely but emphatically.

How long to get an actual copy of the book?

We’ve found it takes about 5 days.  Your mileage may vary.

Back to this book.  What’s in it?  Can I have a review copy?
Download it and see.  That’s your review copy.  But here is the table of contents.

  • Introduction
  • Comparative Chart of Intellectual Property Rights
  • Trademark Act of 1946 (Lanham Act) (as amended)
  • Copyright Act of 1976 (as amended)
  • Patent Act of 1952 (as amended, with annotations indicating the provisions applicable pre and post America Invents Act)
  • Berne Convention for the Protection of Literary and Artistic Works
  • WIPO Copyright Treaty
  • Paris Convention for the Protection of Industrial Property
  • Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)

When’s the casebook coming out?  

Late August.  But watch this space, we will be posting chapters as we go.

James Boyle, William Neal Reynolds Professor of Law Duke Law School.

Jennifer Jenkins, Director Center of the Study of the Public Domain, Senior Lecturing Fellow, Duke Law School

Persnickety Snit

James Boyle, July 25, 2014 06:17 PM   License: Attribution 3.0 Unported

This is the fourth in a series of postings of material drawn from our forthcoming, Creative Commons licensed, open coursebook on Intellectual Property.  It is about lawyers and language. 

Persnickety Linguistic Quibble

This is curmudgeonly but we cannot help ourselves. In our opinion, Computer Associates v. Altai is an excellent opinion, a brilliant example of the judicial craft.  That is something that is really hard to achieve.  But it is marred by three easily avoided linguistic errors, one of them serious. See if you can find them.

Why fuss about this? We agree that the substance is what matters. But there is a lesson to be learned here too.  Your clients are hiring someone to guide them through a confusing maze of legal principles.  If you cannot spell the word “principles” their faith – and that of the judge, partner or general counsel for whom you work – may justifiably be shaken. Word’s spellcheck will be no help because “principals” is a word, it just isn’t the word you want.  Also, “ascribe” and “refute” may not mean what you think they mean.  You do not “ascribe” to a set of views, you “subscribe” to them (though you can reasonably “ascribe” persnickety linguistic tendencies to the editors of this book) and you do not “refute” the theory of evolution merely by disagreeing with it. (“Reject,” “deny” “seek to rebut the arguments of,” “criticize,” “denounce” – such a rich language.)  We’d go further and point out that “advocate” does not require, and should not be coupled with, the preposition “for” (he “advocated the decriminalization of marijuana,” he did not “advocate for” its decriminalization, though he could have “argued for” it) but that one may be a lost battle already.  (C.f. the song 27 Jennifer’s.  Is she the “one he has been seeking for”?  No she is the one he has been “searching for.” Or “seeking” (which contains within it the “for” preposition.)  Let’s not get started on subjunctives.) While we are here, Insure your car.  Ensure that your sentences are correctly framed.  Finally, you do not “take a different tact,” (“tack”) nor do you “feel badly about” something, unless you are particularly incompetent at the feeling arts.  (“Bad.”) If people pay you to use words, use them well.

OK, thanks for indulging us on that.  For 95% of you it was annoying, we know and we’ve made those mistakes ourselves – probably in this very book – but 5% of you will stop doing it and that makes it all worthwhile.

Ethereum – Art Market

Rob Myers, July 25, 2014 04:07 AM   License: Attribution-ShareAlike 4.0 International

Here is a contract that allows you to register as the owner of a digital artwork contained in a particular file (identified by its cryptographic hash value) at a particular URL. The use of a URL is inspired by the excellent Monegraph, which launched shortly after I started working on Ethereum contracts for art. Monegraph uses the existing NameCoin system, which can be implemented in Ethereum as a two line contract.

This contract is longer than that as it’s recording and managing more information. It also allows you to offer the artwork for sale (in exchange for Ether, Ethereum’s built-in currency), either to a specific individual or generally, or to transfer it to a specific individual without charging them within the contract.

 (def 'next-record 0x10)
 (def 'RECORD-SIZE 64)
 ;; Next record position
 ;; This starts one cell above the maximum value of RipeMD
 [[next-record]] 0x10000000000000000000000000000000000000000

      ;; Action
      ;; 0 - first cell in message
      [action] (calldataload 0)
      (when (= @action "register")
         ;;TODO: Check correct message length
         ;;TODO: Check digest in range
         ;; Artwork digest
         [digest] (calldataload 32)
         ;; If already registered, don't continue
         (when @@ @digest
           (return "Arwork already registered."))
         ;; Get storage for new record
         [storage] @@next-record
         ;; Store digest
         [[@storage]] @digest
         ;; Artist account
         [storage] (+ @storage 1)
         [[@storage]] (caller)
         ;; Artist resale percentage
         [storage] (+ @storage 1)
         [[@storage]] (calldataload 64)
         ;; Artist is the current owner
         [storage] (+ @storage 1)
         [[@storage]] (caller)
         ;; Skip purchaser and price
         [storage] (+ @storage 3)
         ;; Copy over the url and description
         ;; 96 is 32 x 3 = 3rd cell in message
         [source] 96
         (for [i] 6    (< @i 64)    [i] (+ @i 1)
               [[@storage]] (calldataload @source)
               [storage] (+ @storage 1)
               [source] (+ @source 32)
         ;; Store digest-to-record link
         [[@digest]] @@next-record
         ;; Increment next record position
         [[next-record]] (+ @@next-record RECORD-SIZE)
      (when (= @action "offer")
         ;;TODO: Check correct message length
         ;;TODO: Check digest in range
         ;; Get artwork record storage for digest or stop
         ;; 32 = second cell in message
         [storage] @@(calldataload 32)
         (when (not @storage)
           (return "Artwork not registered."))
         ;; If the caller is the owner
         (when (= @@ (+ @storage 3) (caller))
            ;; Offer subject
            [[(+ @storage 4)]] (calldataload 64)
            ;; Offer price
            [[(+ @storage 5)]] (calldataload 96)
      (when (= @action "accept")
         ;;TODO: Check correct message length
         ;;TODO: Check digest in range
         ;;TODO: Error messages for bad price or buyer
         ;; Get artwork record storage for digest or stop
         ;; 32 = second cell in message
         [storage] @@(calldataload 32)
         (when (not @storage)
           (return "Artwork not registered."))
         [buyer] @@(+ @storage 4)
         [price] @@(+ @storage 5)
         ;; If the caller is the buyer and it's the correct payment
         ;; Or there's no buyer and it's the correct nonzero payment
         (when (|| (&& (= @buyer (caller))
                       (= @price (callvalue)))
                   (&& (= @buyer 0)
                       (> @price 0)))
            ;; For payment
            ;; Ethereum doesn't allow fractional amounts
            ;; Warn users about making prices divisible
            [hundredth] (/ @price 100)
            [arr] @@(+ @storage 2)
            ;; Pay artist
            (call (- (gas) 250) @@(+ @storage 1) (* @hundredth @arr) 0 0 0 0)
            ;; Pay owner
            (call (- (gas) 250) @@(+ @storage 3) (* @hundredth (- 100 @arr)) 0 0 0 0)
            ;; Transfer ownership
            [[(+ @storage 3)]] (caller)
            ;; Clear offer subject and price
            [[(+ @storage 4)]] 0
            [[(+ @storage 5)]] 0

Here’s the top and the bottom of the main UI (implemented in HTML and JavaScript for the AlethZero Ethereum client).

You can enter a URL and get the cryptographic hash for it.

If the artwork has already been registered, this will show its details.

Or if not you can register it.

Once you’ve registered an artwork you are the artist of it and you also own it. You can offer any artwork you own for sale.

And you can accept a sale offer, paying the specified amount of Ether.

The UI warns you how much Ether you are about to spend.

And when you buy an artwork it lets you know when the transfer is complete.

It’s a market in allographic digital art. In contrast to the existing art market it is entirely public and transparent. And in contrast to many jurisdictions it implements the controversial “Artist’s Resale Right” in a voluntary way (in a way similar to that suggested in “The Social Lives of Artistic Property“). If it’s prohibitively difficult to experiment in the existing art market, we can make new markets for new kinds of art. Like this one.

Macaulay on Copyright

James Boyle, July 24, 2014 09:37 PM   License: Attribution 3.0 Unported

Macaulay’s 1841 speech to the House of Commons on copyright law is often cited and not much read.  In fact, the phrase “cite unseen” gains a new meaning.  That is a shame, because it is masterful.  (And funny.) One fascinating moment?  When Macaulay warns that copyright maximalism will lead to a future of rampant illegality, as all happily violate a law that is presumed to have lost all moral legitimacy.

At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesman of good repute will have anything to do with such disgraceful transactions. Pass this law: and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot…  Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions. The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create.

The legal change he thought would do that?  Extending copyright to the absurd length of life plus 50 years.  (It is now life plus 70).  Ah, Thomas, if only you could have been there for the Sonny Bono Term Extension debates.

This is the third in a series of postings of material drawn from our forthcoming, Creative Commons licensed, open coursebook on Intellectual Property.  The first was Victor Hugo: Guardian of the Public Domain    The second was Mark Twain on the need for perpetual copyright.  The book will be released in late August.

Thomas Babington Macaulay
First Speech to the House of Commons on Copyright

February 5, 1841

It is painful to me to take a course which may possibly be misunderstood or misrepresented as unfriendly to the interests of literature and literary men. It is painful to me, I will add, to oppose my honorable and learned friend on a question which he has taken up from the purest motives, and which he regards with a parental interest. These feelings have hitherto kept me silent when the law of copyright has been under discussion. But as I am, on full consideration, satisfied that the measure before us will, if adopted, inflict grievous injury on the public, without conferring any compensating advantage on men of letters, I think it my duty to avow that opinion and to defend it.

The first thing to be done. Sir, is to settle on what principles the question is to be argued. Are we free to legislate for the public good, or are we not? Is this a question of expediency, or is it a question of right? Many of those who have written and petitioned against the existing state of things treat the question as one of right. The law of nature, according to them, gives to every man a sacred and indefeasible property in his own ideas, in the fruits of his own reason and imagination. The legislature has indeed the power to take away this property, just as it has the power to pass an act of attainder for cutting off an innocent man’s head without a trial. But, as such an act of attainder would be legal murder, so would an act invading the right of an author to his copy be, according to these gentlemen, legal robbery.

Now, Sir, if this be so, let justice be done, cost what it may. I am not prepared, like my honorable and learned friend, to agree to a compromise between right and expediency, and to commit an injustice for the public convenience. But I must say, that his theory soars far beyond the reach of my faculties. It is not necessary to go, on the present occasion, into a metaphysical inquiry about the origin of the right of property; and certainly nothing but the strongest necessity would lead me to discuss a subject so likely to be distasteful to the House. I agree, I own, with Paley in thinking that property is the creature of the law, and that the law which creates property can be defended only on this ground, that it is a law beneficial to mankind. But it is unnecessary to debate that point. For, even if I believed in a natural right of property, independent of utility and anterior to legislation, I should still deny that this right could survive the original proprietor. . . . Surely, Sir, even those who hold that there is a natural right of property must admit that rules prescribing the manner in which the effects of deceased persons shall be distributed are purely arbitrary, and originate altogether in the will of the legislature. If so. Sir, there is no controversy between my honorable and learned friend and myself as to the principles on which this question is to be argued. For the existing law gives an author copyright during his natural life; nor do I propose to invade that privilege, which I should, on the contrary, be prepared to defend strenuously against any assailant. The only point in issue between us is, how long after an author’s death the state shall recognize a copyright in his representatives and assigns; and it can, I think, hardly be disputed by any rational man that this is a point which the legislature is free to determine in the way which may appear to be most conducive to the general good.

We may now, therefore, I think, descend from these high regions, where we are in danger of being lost in the clouds, to firm ground and clear light. Let us look at this question like legislators, and after fairly balancing conveniences and inconveniences, pronounce between the existing law of copyright, and the law now proposed to us. The question of copyright. Sir, like most questions of civil prudence, is neither black nor white, but gray. The system of copyright has great advantages and great disadvantages; and it is our business to ascertain what these are, and then to make an arrangement under which the advantages may be as far as possible secured, and the disadvantages as far as possible excluded. The charge which I bring against my honorable and learned friend’s bill is this, that it leaves the advantages nearly what they are at present, and increases the disadvantages at least fourfold.

The advantages arising from a system of copyright are obvious. It is desirable that we should have a supply of good books; we cannot have such a supply unless men of letters are liberally remunerated: and the least objectionable way of remunerating them is by means of copyright. You cannot depend for literary instruction and amusement on the leisure of men occupied in the pursuits of active life. Such men may occasionally produce compositions of great merit. But you must not look to such men for works which require deep meditation and long research. Works of that kind you can expect only from persons who make literature the business of their lives. Of these persons few will be found among the rich and the noble. The rich and the noble are not impelled to intellectual exertion by necessity. They may be impelled to intellectual exertion by the desire of distinguishing themselves, or by the desire of benefiting the community. But it is generally within these walls that they seek to signalize themselves and to serve their fellow-creatures. Both their ambition and their public spirit, in a country like this, naturally take a political turn. It is then on men whose profession is literature, and whose private means are not ample, that you must rely for a supply of valuable books. Such men must be remunerated for their literary labor. And there are only two ways in which they can be remunerated. One of those ways is patronage; the other is copyright.

There have been times in which men of letters looked, not to the public, but to the government, or to a few great men, for the reward of their exertions. It was thus in the time of Maecenas and Pollio at Rome, of the Medici at Florence, of Louis the Fourteenth in France, of Lord Halifax and Lord Oxford in this country. Now, Sir, I well know that there are cases in which it is fit and graceful, nay, in which it is a sacred duty to reward the merits or to relieve the distresses of men of genius by the exercise of this species of liberality. But these cases are exceptions. I can conceive no system more fatal to the integrity and independence of literary men than one under which they should be taught to look for their daily bread to the favor of ministers and nobles. I can conceive no system more certain to turn those minds which are formed by nature to be the blessings and ornaments of our species into public scandals and pests.

We have, then, only one resource left. We must betake ourselves to copyright, be the inconveniences of copyright what they may. Those in­con­ve­ni­ences, in truth, are neither few nor small. Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly. My honorable and learned friend talks very contemptuously of those who are led away by the theory that monopoly makes things dear. That monopoly makes things dear is certainly a theory, as all the great truths which have been established by the experience of all ages and nations, and which are taken for granted in all reasonings, may be said to be theories. It is a theory in the same sense in which it is a theory that day and night follow each other, that lead is heavier than water, that bread nourishes, that arsenic poisons, that alcohol intoxicates.

If, as my honorable and learned friend seems to think, the whole world is in the wrong on this point, if the real effect of monopoly is to make articles good and cheap, why does he stop short in his career of change? Why does he limit the operation of so salutary a principle to sixty years? Why does he consent to anything short of a perpetuity? He told us that in consenting to anything short of a perpetuity he was making a compromise between extreme right and expediency. But if his opinion about monopoly be correct, extreme right and expediency would coincide. Or rather, why should we not restore the monopoly of the East India trade to the East India Company? Why should we not revive all those old monopolies which, in Elizabeth’s reign, galled our fathers so severely that, maddened by intolerable wrong, they opposed to their sovereign a resistance before which her haughty spirit quailed for the first and for the last time? Was it the cheapness and excellence of commodities that then so violently stirred the indignation of the English people? I believe. Sir, that I may safely take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad. And I may with equal safety challenge my honorable friend to find out any distinction between copyright and other privileges of the same kind; any reason why a monopoly of books should produce an effect directly the reverse of that which was produced by the East India Company’s monopoly of tea, or by Lord Essex’s monopoly of sweet wines. Thus, then, stands the case. It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good.

Now, I will not affirm that the existing law is perfect, that it exactly hits the point at which the monopoly ought to cease; but this I confidently say, that the existing law is very much nearer that point than the law proposed by my honorable and learned friend. For consider this; the evil effects of the monopoly are proportioned to the length of its duration. But the good effects for the sake of which we bear with the evil effects are by no means proportioned to the length of its duration. A monopoly of sixty years produces twice as much evil as a monopoly of thirty years, and thrice as much evil as a monopoly of twenty years. But it is by no means the fact that a posthumous monopoly of sixty years gives to an author thrice as much pleasure and thrice as strong a motive as a posthumous monopoly of twenty years. On the contrary, the difference is so small as to be hardly perceptible. We all know how faintly we are affected by the prospect of very distant advantages, even when they are advantages which we may reasonably hope that we shall ourselves enjoy. But an advantage that is to be enjoyed more than half a century after we are dead, by somebody, we know not by whom, perhaps by somebody unborn, by somebody utterly unconnected with us, is really no motive at all to action. It is very probable that in the course of some generations land in the unexplored and unmapped heart of the Australasian continent will be very valuable. But there is none of us who would lay down five pounds for a whole province in the heart of the Australasian continent. We know, that neither we, nor anybody for whom we care, will ever receive a farthing of rent from such a province. And a man is very little moved by the thought that in the year 2000 or 2100, somebody who claims through him will employ more shepherds than Prince Esterhazy, and will have the finest house and gallery of pictures at Victoria or Sydney. Now, this is the sort of boon which my honorable and learned friend holds out to authors. Considered as a boon to them, it is a mere nullity; but considered as an impost on the public, it is no nullity, but a very serious and pernicious reality.

The principle of copyright is this. It is a tax on readers for the purpose of giving a bounty to writers. The tax is an exceedingly bad one; it is a tax on one of the most innocent and most salutary of human pleasures; and never let us forget, that a tax on innocent pleasures is a premium on vicious pleasures. I admit, however, the necessity of giving a bounty to genius and learning. In order to give such a bounty, I willingly submit even to this severe and burdensome tax. Nay, I am ready to increase the tax, if it can be shown that by so doing I should proportionally increase the bounty. My complaint is, that my honorable and learned friend doubles, triples, quadruples, the tax, and makes scarcely any perceptible addition to the bounty. Why, Sir, what is the additional amount of taxation which would have been levied on the public for Dr. Johnson’s works alone, if my honorable and learned friend’s bill had been the law of the land? I have not data sufficient to form an opinion. But I am confident that the taxation on his dictionary alone would have amounted to many thousands of pounds. In reckoning the whole additional sum which the holders of his copyrights would have taken out of the pockets of the public during the last half century at twenty thousand pounds, I feel satisfied that I very greatly underrate it. Now, I again say that I think it but fair that we should pay twenty thousand pounds in consideration of twenty thousand pounds’ worth of pleasure and encouragement received by Dr. Johnson. But I think it very hard that we should pay twenty thousand pounds for what he would not have valued at five shillings.

* * *

But this is not all. I think it right, Sir, to call the attention of the House to an evil, which is perhaps more to be apprehended when an author’s copyright remains in the hands of his family, than when it is transferred to booksellers. I seriously fear that, if such a measure as this should be adopted, many valuable works will be either totally suppressed or grievously mutilated. I can prove that this danger is not chimerical; and I am quite certain that, if the danger be real, the safeguards which my honorable and learned friend has devised are altogether nugatory. That the danger is not chimerical may easily be shown. Most of us, I am sure, have known persons who, very erroneously as I think, but from the best motives, would not choose to reprint Fielding’s novels or Gibbon’s “History of the Decline and Fall of the Roman Empire.” Some gentlemen may perhaps be of opinion that it would be as well if “Tom Jones” and Gibbon’s “History” were never reprinted. I will not, then, dwell on these or similar cases. I will take cases respecting which it is not likely that there will be any difference of opinion here; cases, too, in which the danger of which I now speak is not matter of supposition, but matter of fact.

Take Richardson’s novels. Whatever I may, on the present occasion, think of my honorable and learned friend’s judgment as a legislator, I must always respect his judgment as a critic. He will, I am sure, say that Richardson’s novels are among the most valuable, among the most original, works in our language. No writings have done more to raise the fame of English genius in foreign countries. No writings are more deeply pathetic. No writings, those of Shakespeare excepted, show more profound knowledge of the human heart. . . . Sir, it is my firm belief, that if the law had been what my honorable and learned friend proposes to make it, they would have been suppressed.

I remember Richardson’s grandson well; he was a clergyman in the city of London; he was a most upright and excellent man; but he had conceived a strong prejudice against works of fiction. He thought all novel-reading not only frivolous but sinful. He said,—this I state on the authority of one of his clerical brethren who is now a bishop,—he said that he had never thought it right to read one of his grandfather’s books. Suppose, Sir, that the law had been what my honorable and learned friend would make it. Suppose that the copyright of Richardson’s novels had descended, as might well have been the case, to this gentleman. I firmly believe that he would have thought it sinful to give them a wide circulation. I firmly believe that he would not for a hundred thousand pounds have deliberately done what he thought sinful. He would not have reprinted them.

And what protection does my honorable and learned friend give to the public in such a case? Why, Sir, what he proposes is this: if a book is not reprinted during five years, any person who wishes to reprint it may give notice in the London Gazette: the advertisement must be repeated three times: a year must elapse; and then, if the proprietor of the copyright does not put forth a new edition, he loses his exclusive privilege. Now, what protection is this to the public? What is a new edition? Does the law define the number of copies that make an edition? Does it limit the price of a copy? Are twelve copies on large paper, charged at thirty guineas each, an edition? It has been usual, when monopolies have been granted, to prescribe numbers and to limit prices. But I do not find that my honorable and learned friend proposes to do so in the present case. And, without some such provision, the security which he offers is manifestly illusory. It is my conviction that, under such a system as that which he recommends to us, a copy of “Clarissa” would have been as rare as an Aldus or a Caxton.

I will give another instance. One of the most instructive, interesting, and delightful books in our language is Boswell’s “Life of Johnson.’’ Now it is well known that Boswell’s eldest son considered this book, considered the whole relation of Boswell to Johnson, as a blot in the escutcheon of the family. He thought, not perhaps altogether without reason, that his father had exhibited himself in a ludicrous and degrading light. And thus he became so sore and irritable that at last he could not bear to hear the “Life of Johnson’’ mentioned. Suppose that the law had been what my honorable and learned friend wishes to make it. Suppose that the copyright of Boswells “Life of Johnson” had belonged, as it well might, during sixty years, to Boswell’s eldest son. What would have been the consequence? An unadulterated copy of the finest biographical work in the world would have been as scarce as the first edition of Camden’s “Britannia.”

. . . Sir, of the kindness with which the House has listened to me, that I will not detain you longer. I will only say this, that if the measure before us should pass, and should produce one tenth part of the evil which it is calculated to produce, and which I fully expect it to produce, there will soon be a remedy, though of a very objectionable kind. Just as the absurd Acts which prohibited the sale of game were virtually repealed by the poacher, just as many absurd revenue Acts have been virtually repealed by the smuggler, so will this law be virtually repealed by piratical booksellers.

At present the holder of copyright has the public feeling on his side. Those who invade copyright are regarded as knaves who take the bread out of the mouths of deserving men. Everybody is well pleased to see them restrained by the law, and compelled to refund their ill-gotten gains. No tradesman of good repute will have anything to do with such disgraceful transactions. Pass this law: and that feeling is at an end. Men very different from the present race of piratical booksellers will soon infringe this intolerable monopoly. Great masses of capital will be constantly employed in the violation of the law. Every art will be employed to evade legal pursuit; and the whole nation will be in the plot. On which side indeed should the public sympathy be when the question is whether some book as popular as “Robinson Crusoe” or the “Pilgrim’s Progress” shall be in every cottage, or whether it shall be confined to the libraries of the rich for the advantage of the great-grandson of a bookseller who, a hundred years before, drove a hard bargain for the copyright with the author when in great distress? Remember too that, when once it ceases to be considered as wrong and discreditable to invade literary property, no person can say where the invasion will stop. The public seldom makes nice distinctions. The wholesome copyright which now exists will share in the disgrace and danger of the new copyright which you are about to create. And you will find that, in attempting to impose unreasonable restraints on the reprinting of the works of the dead, you have, to a great extent, annulled those restraints which now prevent men from pillaging and defrauding the living.


1.)  How does Macaulay link possible private censorship and inherited interests in copyright? Why do these same concerns not arise with the author’s original private right to control reproduction?

2.)  Is copyright a matter of right or a matter of utility for Macaulay?

3.)  Why does he think copyright superior to patronage as a method of encouraging literary production? What would he think of crowdsourcing sites such as Kickstarter?

4.)  What would he think of our current copyright system?

5.)  The Bill he was discussing dealt with the possibility that publishers might “sit on their rights” and that works would become commercially unavailable, subverting copyright’s goal of access. What mechanism did the Bill have to avoid that danger? Would it be a good idea for us to have such a mechanism today?

6.)  Ever read Richardson’s novels? Hmm.

Ethereum – Art Is…

Rob Myers, July 24, 2014 05:07 AM   License: Attribution-ShareAlike 4.0 International

Here is a contract that allows anyone to define what art is. It contains a single set of twelve statements about art. They are encoded as hexadecimal values which are interpreted as sentences in a simple subset of International Art English and displayed by the UI.

 ;; Constant values
 ;; Price base (wei), doubled for each definition up to DEFS-COUNT
 (def 'PRICE-BASE 10)
 ;; Add to the index to get the price base exponent
 ;; Number of definitions
 (def 'DEFS-COUNT 12)
 ;; Range of values for definitions
 (def 'DEF-MIN 0x1)
 (def 'DEF-MAX 0x0F0F0F0F)

 ;; Storage locations
 (def 'artist 0x10)
 (def 'defs-base 0x100)
 (def 'theorists-base 0x200)

 ;; State
 ;; Contract owner/payee
 [[artist]] (caller)

     [action] (calldataload 0)
      (when (= @action "set")
         [index] (calldataload 32)
         [definition] (calldataload 64)
         [price] (exp PRICE-BASE (+ @index 1 PRICE-FACTOR-ADD))
         ;; If the index is in range and the caller paid enough to set it
         (when (&& (>= @definition DEF-MIN)
                   (<= @definition DEF-MAX)
                   (< @index DEFS-COUNT)
                   (= (callvalue) @price))
            ;; Update definition
            [[(+ defs-base @index)]] @definition
            [[(+ theorists-base @index)]] (caller)
            (- (gas) 100) @@artist @price 0 0 0 0

The contract is in lll rather than Serpent this time.

Here’s what the UI looks like.
And here’s what it looks like when a statement is being edited.
The contract allows the statements to be edited but it costs progressively more to do so: the first costs 10 Wei, the third costs 1000 and so on. This ensures that art theorists place a value on their definition, thereby indicating how confident in and/or serious about their definition they are. The higher the value, the less likely it is to be changed by someone else. This combines art theory with behavioral economics.

Ethereum – This Contract Is Art

Rob Myers, July 23, 2014 12:58 AM   License: Attribution-ShareAlike 4.0 International

Here is a contract that can assert that it is art.

init:[1000] = "may be"

    if[0] == "toggle":
        if[1000] == "is":
  [1000] = "is not"
  [1000] = "is"

It toggles its status as art when sent a message instructing it to do so.

Here’s what the UI for the contract looks like:


Here it is while the artistic state of the contract is being toggled:


And here it is after being toggled:
Anyone can change the contract from not being art to being art (and vice versa). We’ll look at a more advanced contract that uses behavioural economics to address this next.

EU commission to member states: Use Open Definition compliant licenses for your Public Sector Information

Communia Association, July 22, 2014 03:58 PM   License: CC0 1.0 Universal

Last week the European Commision published Guidelines on recommended standard licences, datasets and charging for the re-use of documents. These Guidelines are intended to help member states with the implementation of the amended Public Sector Information directive that was adopted last year. With these guidelines the Commission hopes to provide ‘reference material for all institutions in all EU countries, in order to align their practices and make them more transparent and predictable for potential re-users’.

The guidelines put a lot of emphasis on the legal aspects of PSI. As part of this the Commission highlights the fact that not all documents need to be licensed, especially those that are in the Public Domain:

A simple notice (e.g. the Creative Commons public domain mark) clearly indicating legal status is specifically recommended for documents in the public domain (e.g. where IPR protection has expired or in jurisdictions where official documents are exempt from copyright protection by law).

In addition to this important clarification the Commission also provides clear recommendations for the use of open licenses:

Several licences that comply with the principles of ‘openness’ described by the Open Knowledge Foundation to promote unrestricted re-use of online content, are available on the web. They have been translated into many languages, centrally updated and already used extensively worldwide. Open standard licences, for example the most recent Creative Commons (CC) licences (version 4.0), could allow the re-use of PSI without the need to develop and update custom-made licences at national or sub-national level. Of these, the CC0 public domain dedication is of particular interest. As a legal tool that allows waiving copyright and database rights on PSI, it ensures full flexibility for re-users and reduces the complications associated with handling numerous licences, with possibly conflicting provisions. If the CC0 public domain dedication cannot be used, public sector bodies are encouraged to use open standard licences appropriate to a member state’s own national intellectual property and contract law and that comply with the recommended licensing provisions set out below.

This recommendation for the use of Open Definition compliant licenses and tools shows that the Commission has clearly understood concerns about license fragmentation that COMMUNIA and others had raised during during the legislative process that lead to the amendment of the PSI directive. In our 2012 policy paper on the proposal to amend the PSI Directive we had noted:

Instead of encouraging member states to develop and use open government licenses such as those that are currently used by the governments of the United Kingdom and France, the Commission should consider advocating the use of a single open license that can be applied across the entire European Union.

Such licenses do exist and are widely used by a broad spectrum of data and content providers. [...] COMMUNIA therefore advises the Commission to consider using an existing open license that complies with the Definition of Free Cultural Works as a pan European standard license for Public Sector Information. Appropriate licenses include the Creative Commons Zero Universal Public Domain Dedication (CC0) or the widely used Creative Commons Attribution License (CC BY).

Lets hope that member states and public sector bodies will follow these recommendations and that the trend towards license fragmentation that accompanied the beginning of the open data movement has abated. In this respect it is encouraging that the list of Open Definition conformant licenses is still relatively short and only contains two licenses that have been developed specifically for a national government.

Mark Twain on the Need for Perpetual Copyright

James Boyle, July 19, 2014 01:26 PM   License: Attribution 3.0 Unported

This is the second in a series of postings of material drawn from our forthcoming, Creative Commons licensed, open coursebook on Intellectual Property.  The first was Victor Hugo: Guardian of the Public Domain The book will be released in late August.

In 1906, Samuel Clemens (who we remember better by his pen name Mark Twain) addressed Congress on the reform of the Copyright Act.  Delicious.

Statement Of Mr. Samuel L. Clemens  before the Committee of Patents of the Senate and House, to discuss amending the Copyright Act (1906)

Mr. Clemens. I have read the bill. At least I have read such portions of it as I could understand; and indeed I think no one but a practiced legislator can read the bill and thoroughly understand it, and I am not a practiced legislator. I have had no practice at all in unraveling confused propositions or bills. Not that this is more confused than any other bill. I suppose they are all confused. It is natural that they should be, in a legal paper of that kind, as I understand it. Nobody can understand a legal paper, merely on account of the language that is in it. It is on account of the language that is in it that no one can understand it except an expert.

Necessarily I am interested particularly and especially in the part of the bill which concerns my trade. I like that bill, and I like that extension from the present limit of copyright life of forty-two years to the author’s life and fifty years after. I think that will satisfy any reasonable author, because it will take care of his children. Let the grandchildren take care of themselves. “Sufficient unto the day.” That would satisfy me very well. That would take care of my daughters, and after that I am not particular. I shall then long have been out of this struggle and independent of it. Indeed, I like the whole bill. It is not objectionable to me. Like all the trades and occupations of the United States, ours is represented and protected in that bill. I like it. I want them to be represented and protected and encouraged. They are all worthy, all important, and if we can take them under our wing by copyright, I would like to see it done. I should like to have you encourage oyster culture and anything else. I have no illiberal feeling toward the bill. I like it. I think it is just. I think it is righteous, and I hope it will pass without reduction or amendment of any kind.

I understand, I am aware, that copyright must have a term, must have a limit, because that is required by the Constitution of the United States, which sets aside the earlier constitution, which we call the Decalogue. The Decalogue says that you shall not take away from any man his property. I do not like to use the harsher term, “Thou shalt not steal.”

But the laws of England and America do take away property from the owner. They select out the people who create the literature of the land. Always talk handsomely about the literature of the land. Always say what a fine, a great monumental thing a great literature is. In the midst of their enthusiasm they turn around and do what they can to crush it, discourage it, and put it out of existence. I know that we must have that limit. But forty-two years is too much of a limit. I do not know why there should be a limit at all. I am quite unable to guess why there should be a limit to the possession of the product of a man’s labor. There is no limit to real estate. As Doctor Hale has just suggested, you might just as well, after you had discovered a coal mine and worked it twenty-eight years, have the Government step in and take it away—under what pretext?

The excuse for a limited copyright in the United States is that an author who has produced a book and has had the benefit of it for that term has had the profit of it long enough, and therefore the Government takes the property, which does not belong to it, and generously gives it to the eighty-eight millions. That is the idea. If it did that, that would be one thing. But it does not do anything of the kind. It merely takes the author’s property, merely takes from his children the bread and profit of that book, and gives the publisher double profit. The publisher, and some of his confederates who are in the conspiracy, rear families in affluence, and they continue the enjoyment of these ill-gotten gains generation after generation. They live forever, the publishers do.

As I say. this limit is quite satisfactory to me—for the author’s life, and fifty years after. In a few weeks, or months, or years I shall be out of it. I hope to get a monument. I hope I shall not be entirely forgotten. I shall subscribe to the monument myself. But I shall not be caring what happens if there is fifty years’ life of my copyright. My copyrights produce to me annually a good deal more money than I have any use for. But those children of mine have use for that. I can take care of myself as long as I live. I know half a dozen trades, and I can invent a half a dozen more. I can get along. But I like the fifty years’ extension, because that benefits my two daughters, who are not as competent to earn a living as I am, because I have carefully raised them as young ladies, who don’t know anything and can’t do anything. So I hope Congress will extend to them that charity which they have failed to get from me.

Why, if a man who is mad —not mad, but merely strenuous—about race suicide should come to me and try to get me to use my large political or ecclesiastical influence for the passage of a bill by this Congress limiting families to 22 children by one mother, I should try to calm him down. I should reason with him. I should say to him, “That is the very parallel to the copyright limitation by statute. Leave it alone. Leave it alone and it will take care of itself.” There is only one couple in the United States that can reach that limit. Now, if they reach that limit let them go on. Make the limit a thousand years. Let them have all the liberty they want. You are not going to hurt anybody in that way. Don’t cripple that family and restrict it to 22 children. In doing so you are merely offering this opportunity for activity to one family per year in a nation of eighty millions. It is not worth the while at all.

The very same with copyright. One author per year produces a book which can outlive the forty-two year limit, and that is all. This nation can not produce two authors per year who can create a book that will outlast forty-two years. The thing is demonstrably impossible. It can not be done. To limit copyright is to take the bread out of the mouths of the children of that one author per year, decade, century in and century out. That is all you get out of limiting copyright.

I made an estimate once when I was to be called before the copyright committee of the House of Lords, as to the output of books, and by my estimate we had issued and published in this country since the Declaration of Independence 220.000 books. What was the use of protecting those books by coypright? They are all gone. They had all perished before they were 10 years old. There is only about one book in a thousand that can outlive forty-two years of copyright. Therefore why put a limit at all? You might just as well limit a family to 22. It will take care of itself. If you try to recall to you minds the number of men in the nineteenth century who wrote books in America which books lived forty-two years you will begin with Fennimore Cooper, follow that with Washington Irving, Harriet Beecher Stowe, and Edgar A. Poe, and you will not go far until you begin to find that the list is limited.

You come to Whittier and Holmes and Emerson, and you find Howells and Thomas Bailey Aldrich, and then the list gets pretty thin and you question if you can find 20 persons in the United States in a whole century who have produced books that could outlive or did outlive the forty-two year limit. You can take all the authors in the United States whose books have outlived the forty-two year limit and you can seat them on one bench there. Allow three children to each of them, and you certainly can put the result down at 100 persons. Add two or three more benches. You have plenty of room left. That is the limit of the insignificant number whose bread and butter are to be taken away. For what purpose?  For what profit to anybody? Nobody can tell what that profit is. It is only those books that will outlast the forty-two-year limit that have any value after ten or fifteen years. The rest are all dead. Then you turn those few books into the hands of the pirate—into the hands of the legitimate publisher—and they go on, and they get the profit that properly should have gone to wife and children. I do not think that is quite right. I told you what the idea was in this country for a limited copyright.

The English idea of copyright, as I found, was different, when I was before the committee of the House of Lords, composed of seven members I should say. The spokesman was a very able man, Lord Thring, a man of great reputation, but he didn’t know anything about copyright and publishing. Naturally he didn’t, because he hadn’t been brought up to this trade. It is only people who have had intimate personal experience with the triumphs and griefs of an occupation who know how to treat it and get what is justly due.

Now that gentleman had no purpose or desire in the world to rob anybody or anything, but this was the proposition—fifty years’ extension—and he asked me what I thought the limit of copyright ought to be.

“Well,” I said, ” perpetuity.” I thought it ought to last forever.

Well, he didn’t like that idea very much. I could see some resentment in his manner, and he went on to say that the idea of a perpetual copyright was illogical, and so forth, and so on. And here was his reason—for the reason that it has long ago been decided that ideas are not property, that there can be no such thing as property in ideas.…That there could be no such thing as property in an intagible idea. He said, “What is a book? A book is just built from base to roof with ideas, and there can be no property in them.”  I said I wished he could mention any kind of property existing on this planet, property that had a pecuniary value, which was not derived from an idea or ideas.

“Well,” he said, ” landed estate—real estate.”

“Why,” I said, “Take an assumed case, of a dozen Englishmen traveling through the South—Africa—they camp out; eleven of them see nothing at all; they are mentally blind. But there is one in the party who knows what that harbor means, what this lay of the land means; to “him it means that some day—you can not tell when—a railway will come through here, and there on that harbor a great city will spring up. That is his idea. And he has another idea, which is to get a trade, and so, perhaps, he sacrifices his last bottle of Scotch whisky and gives a horse blanket to the principal chief of that region and buys a piece of land the size of Pennsylvania. There is the value of an idea applied to real estate. That day will come, as it was to come when the Cape-to-Cairo Railway should pierce Africa and cities should be built, though there was some smart person who bought the land from the chief and received his everlasting gratitude, just as was the case with William Penn, who bought for $40 worth of stuff the area of Pennsylvania. He did a righteous thing. We have to be enthusiastic over it, because that was a thing that never happened before probably. There was the application of an idea to real estate. Every improvement that is put upon real estate is the result of an idea in somebody’s head. A skyscraper is another idea. The railway was another idea. The telephone and all those things are merely symbols which represent ideas. The washtub was the result of an idea. The thing hadn’t existed before. There is no property on this earth that does not derive pecuniary value from ideas and association of ideas applied and applied and applied again and again and again, as in the case of the steam engine. You have several hundred people contributing their ideas to the improvement and the final perfection of that great thing, whatever it is—telephone, telegraph, and all.”

So if I could have convinced that gentleman that a book which does consist solely of ideas, from the base to the summit, then that would have been the best argument in the world that it is property, like any other property, and should not be put under the ban of any restriction, but that it should be the property of that man and his heirs forever and ever, just as a butcher shop would be, or—I don’t care—anything, I don’t care what it is. It all has the same basis. The law should recognize the right of perpetuity in this and every other kind of property. But for this property I do not ask that at all. Fifty years from now I shall not be here. I am sorry, but I shall not be here. Still, I should like to see it.

Of course we have to move by slow stages. When a great event happens in this world, like that of 1714, [sic] under Queen Anne, it stops everything, but still, all the world imagines there was an element of justice in that act. They do not know why they imagine it, but it is because somebody else has said so. And that process must continue until our day, and keep constantly progressing on and on. First twenty-eight years was added, and then a renewal for fourteen years; and then you encountered Lord Macaulay, who made a speech on copyright when it was going to achieve a life of sixty years which reduced it to forty years—a speech that was read all over the world by everybody who does not know that Lord Macaulay did not know what he was talking about. So he inflicted this disaster upon his successors in the authorship of books. It has to undergo regular and slow development—evolution.

Here is this bill, one instance of it. Make the limit the author’s life and fifty years after, and, as I say, fifty years from now they will see that that has not convulsed the world at all. It has not destroyed any San Francisco. No earthquakes concealed in it anywhere. It has changed nobody. It has merely fed some starving author’s children. Mrs. Stowe’s [Harriet Beacher Stowe, author of Uncle Tom’s Cabin] two daughters were close neighbors of mine, and—well, they had their living very much limited…

I say again, as I said in the beginning, I have no enmities, no animosities toward this bill. This bill is plenty righteous enough for me. I like to see all these industries and arts propagated and encouraged by this bill. This bill will do that, and I do hope that it will pass and have no deleterious effect. I do seem to have an extraordinary interest in a whole lot of arts and things. The bill is full of those that I have nothing to do with. But that is in line with my generous, liberal nature. I can’t help it. I feel toward those same people the same sort of charity of the man who arrived at home at 2 o’clock in the morning from the club. He was feeling perfect satisfaction with life—was happy, was comfortable. There was his house weaving and weaving and weaving around. So he watched his chance, and by and by when the steps got in his neighborhood he made a jump and he climbed up on the portico. The house went on weaving. He watched his door, and when it came around his way he climbed through it. He got to the stairs, went up on all fours. The house was so unsteady he could hardly make his way, but at last he got up and put his foot down on the top step, but his toe hitched on that step, and of course he crumpled all down and rolled all the way down the stairs and fetched up at the bottom with his arm around the newel post, and he said, “God pity a poor sailor out at sea on a night like this.”

The committee adjourned until 10 o’clock a. m. to-morrow



Samuel Clemens gives a robust argument for perpetual copyright – for the idea that the book is the author’s, not by utilitarian privilege but by right – and he neatly flips today’s assumptions about term extension on their heads.  But he is also hilariously cynical, perhaps mindful of the fact that the legislators to whom his words are addressed might be familiar with his prior pronouncements about both them and the law they were considering. “It could probably be shown by facts and figures that there is no distinctly native American criminal class except Congress.” “Whenever a copyright law is to be made or altered, then the idiots assemble.”  “Only one thing is impossible for God: to find any sense in any copyright law on the planet.”  He is particularly pointed in attacking the compromises with which any copyright bill is loaded – the special provisions that gave American printers special rights to print the books (and thus the unions a strong barrier against foreign competition), that gave libraries certain privileges, indeed that allowed the expiration of copyright at all.  All these compromises, from his point of view, are simply takings from authors for the benefit of activities that have little or nothing to do with their art. He even waxes a little absurdist about it.  “Like all the trades and occupations of the United States, ours [that of the actual author] is represented and protected in that bill. I like it. I want them to be represented and protected and encouraged. They are all worthy, all important, and if we can take them under our wing by copyright, I would like to see it done. I should like to have you encourage oyster culture and anything else…. I do seem to have an extraordinary interest in a whole lot of arts and things. The bill is full of those that I have nothing to do with. But that is in line with my generous, liberal nature.”   The committee members, eager to shower other celebrities such as John Philip Sousa with questions, offered none after his remarks.  Clemens was an old lion – he speaks of his own awareness of mortality in his remarks, and he in fact had only four more years to live – but he still had teeth and his zingers might have ended up on the front page of the New York Times. And so after his remarks… the committee quietly adjourned.


1.)  Clemens has obviously read Macaulay.  On what do they disagree?

2.)  He argues that taking away his copyright is as unjust as the government taking away his mine after a certain period of time, saying he had already reaped enough benefit from it Do you agree?  What differences do you see?  How would Jefferson and Macaulay respond?  Would Hugo agree?

3.)  Clemens argues that there would be no real negative effects of term extension because he notes (correctly) that very, very few works retain any commercial value after 42 years.  He was arguing there for a “life plus fifty” system which did not in fact get enacted until 1976.  We now have a life plus seventy system.  Is he right that there have been no negative consequences?

Victor Hugo: Guardian of the Public Domain

James Boyle, July 18, 2014 10:50 PM   License: Attribution 3.0 Unported

Jennifer Jenkins and I are frantically working to put together a new open casebook on Intellectual Property Law.  (It will be available, in beta version, this Fall under a CC license, and freely downloadable in multiple formats of course.  Plus it should sell in paper form for about $130 less than the competing casebooks. The accompanying statutory supplement will be 1/5  the price of most statutory supplements — also freely downloadable.)  More about that later.  While assembling the materials for a casebook, one gets to revisit the archives, reread the great writers.  Today I was revisiting Victor Hugo.  Hugo was a fabulous — inspiring, passionate — proponent of the rights of authors, and the connection of those rights to free expression and free ideas. He went beyond giving speeches to play a serious role in setting up the current international copyright system.  He is held out today as the ultimate proponent of the droits d’auteur — the person who said (and he did) that the author’s right was the most sacred form of property: unlike other property rights it impoverished no one, because it was over something that was entirely new.  (Think of Locke and his point that all property took from the common store.  Not so with copyright, said Hugo)  But Hugo was a more subtle fellow than that and his views are not what you may have been told they were.  I decided to translate his speech to the Congress of Literary, Industrial and Artistic Property in Paris in 1878.  (There’s probably a better translation out there — I just couldn’t find it.) And I was struck, as if for the first time, by what he said about the need to create a system that respected not just the rights of authors. but the public’s rights, the public’s ownership of the public domain.

Victor Hugo, guardian of the public domain and a proponent of the exact kind of right of the public to the public domain that Justice Ginsburg found so incomprehensible in Golan v. Holder.

Here is an excerpt.  For those of you impatient to cut to the chase, the bolded section at the end gives Hugo’s views on the public domain.  [NB: this is a free translation -- Hugo was a florid speaker.  I've tried to reproduce the force of his speech using italics and other forms of emphasis that are not in the original. And of course the bolded section is courtesy of me. Lector beware]

Excerpts from the speech of Victor Hugo to the Congress of Literary, Industrial and Artistic Property, Paris, 1878.  [Emphases added]

Literary property is of general utility.

All the old monarchical laws denied and still deny literary property. For what purpose?  For the purpose of control. The writer-owner is a free writer. To take his property, is to take away his independence. One wishes that it were not so. [That is the danger in] the remarkable fallacy, which would be childish if it were not so perfidious,  “thought belongs to everyone, so it cannot be property, so literary property does not exist.”  What a strange confusion!  First, to confuse the ability to think, which is general, with the thought, which is individual; my thought is me.  Then, to confuse thought, an abstract thing, with the book, a material thing. The thought of the writer, as thought, evades the grasping hand.   It flies from soul to soul; it has this gift and this force — virum volitare per ora — that it is everywhere on the lips of men.  But the book is distinct from the thought; as a book, it is “seizable,” so much so that it is sometimes “seized.” [impounded, censored, pirated.] (Laughter.)

The book, a product of printing,  belongs to industry and is the foundation, in all its forms, of a large commercial enterprise. It is  bought and sold; it is a form of property, a value created, uncompensated, a form of riches added by the writer to the national wealth.   Indeed, all must agree, this is the most compelling form of property.

Despotic governments violate this property right; they confiscate the book, hoping thus to confiscate the writer. Hence the system of royal pensions. [Pensions for writers, in the place of author’s rights] Take away everything and give back a pittance! This is the attempt to dispossess and to subjugate the writer. One steals, and then one buys back a fragment of what one has stolen. It is a wasted effort, however. The writer always escapes. We became poor, he remains free. (Applause) Who could buy these great minds, Rabelais, Molière, Pascal? But the attempt is nonetheless made ​, and the result is dismal. Monarchic patronage sucks at the vital forces of the nation. Historians give Kings the title the “father of the nation” and “fathers of letters;….. the result? These two sinister facts: people without bread, Corneille [the great French author] without shoes. (Long applause).
Gentlemen, let us return to the basic principle: respect for property. Create a system of literary property, but at the same time, create the public domain! Let us go further. Let us expand the idea.  The law could give to all publishers the right to publish any book after the death of the author, the only requirement would be to pay the direct heirs a very low fee, which in no case would exceed five or ten percent of the net profit. This simple system, which combines the unquestionable property of the writer with the equally incontestable right of the public domain was suggested by the 1836 commission [on the rights of authors]; and you can find this solution, with all its details, in the minutes of the board, then published by the Ministry of the Interior.

The principle is twofold, do not forget. The book, as a book, belongs to the author, but as a thought, it  belongs – the word is not too extreme – to the human race. All intelligences, all minds, are eligible, all own it. If one of these two rights, the right of the writer and the right of the human mind, were to be sacrificed, it would certainly be the right of the writer, because the public interest is our only concern, and that must take precedence in anything that comes before us.  [Numerous sounds of approval.]But, as I just said, this sacrifice is not necessary.

I am against the idea of a “paying public domain”  — but I will note that Hugo’s proposal is many ways more radical than any current orphan works legislation.  Not just in its details — replacing property rule with liability rule — but in its premises, which people often forget.  Yes, he was relying on the familiar idea-expression distinction, which no American lawyer would deny.  The author owns the expression.  The public gets free access to the idea.  And this is in fact one of the most brilliant parts of our copyright system.   But look more closely.  He was also firmly resting intellectual property on a public interest foundation and he was focused on  access to the public domain — to the actual expression, the books,  not just idea — front and center.  That is why he suggests the idea of any publisher being able to reprint any book.  Would that we had such a system for orphan works — even if not for works in the public domain.  Here, by contrast, is Justice Ginsburg who — we are told — comes from a society with a more moderate, balanced, and less absolute form of copyright…  She is writing the majority opinion in a case about taking works out of the public domain and putting them back under copyright.

As petitioners put it in this Court, Congress impermissibly revoked their right to exploit foreign works that “belonged to them” once the works were in the public domain.  To copyright lawyers, the “vested rights” formulation might sound exactly backwards: Rights typically vest at the outset of copyright protection, in an author or rightholder. See, e.g., 17 U.S.C. § 201(a) (“Copyright in a work protected . . . vests initially in the author. . . .”). Once the term of protection ends, the works do not revest in any rightholder. Instead, the works simply lapse into the public domain. See, e.g., Berne, Art. 18(1), 828 U.N.T.S., at 251 (“This Convention shall apply to all works which . . . have not yet fallen into the public domain. . . .”). Anyone has free access to the public domain, but no one, after the copyright term has expired, acquires ownership rights in the once-protected works.

But perhaps there are forms of public right other than ownership.  Hugo understood that point.  It is a shame we no longer do so. ” If one of these two rights, the right of the writer and the right of the human mind, were to be sacrificed, it would certainly be the right of the writer, because the public interest is our only concern, and that must take precedence in anything that comes before us.  [Numerous sounds of approval.]But, as I just said, this sacrifice is not necessary.”  But what of the cases — orphan works are only one example — where the author gets nothing, but the public is impoverished?

Back to writing the casebook!


Still rambling (probably) but no more a librarian

Ivan Chew, July 13, 2014 09:39 AM   License: Attribution 3.0 Singapore

Hello World.

Today's my last official day as a librarian. Today, 15 March 2014, is exactly 17 years and 5 months since I started work at the National Library Board.

Slightly more than a year back, I reviewed where I was and where/ what I could be going/ doing. The conclusion was that the conditions (personal, external and so on) were right for me to pursue the creative side of things. Fulfilling a childhood ambition, perhaps.

In August last year, I started a modest little media studio with a friend (email me and ask me about it). I've moved from being a librarian to being an entrepreneur. Behind the initial sense of excitement of starting something new, there's a quiet anxiousness of not knowing how things will turn out. I take heart in the support of friends, colleagues and family. I've considered possible success and failure, and concluded that the only real failure is to not try at all.

You could say my Project 365 Sketches was a pre-cursor to my career change, though I've been making music and art for a long time now. The difference is that I hope to do it as paid work.

I started as a Assistant Librarian and left as an Assistant Director. It's quite fitting, the "Assistant" designation. It's an oversimplification, but I'd sum up librarianship as a role that ultimately assists people in their search for connections -- connections to information, ideas and to some extent, people (authors, like-minded readers etc).

In truth, I'm not particularly knowledgeable about library work, library technologies or library management. If anything, I was merely the first Singaporean librarian, who used my real name, and blogged a little about what went on in the library (but even that was largely public programming).

For the folks who have left comments at this blog, or exchanged emails with me as as a librarian, I sincerely thank you all. Blogging has opened new vistas for me. We've largely forgotten why blogging was such a big deal then (leaving "comments" on a website was not the norm). Almost 10 years ago, Blogging had a bad name in Singapore (go search the newspaper archives). Later, people attended talks to understand what was a Blog. I remember a participant asking me (at the very first public talk I gave), after she said she understood what a Blog was, how one "crossed the line" to become a blogger. Those were pretty interesting times.

Will I start another blog? Probably not. Or not yet anyway. I remember telling the journalist, in a 2006 interview, that I'll blog only if I have something meaningful to say.


All stories must come to an end, eventually.

I'm still contactable via ramblinglibrarian [ at ] gmail.

Keep Reading. Keep Learning.

Edit Oakland wiki events

Mike Linksvayer, July 09, 2014 07:27 PM   License: CC0 1.0 Universal

Saturday, July 12, there’s a big open streets event in my obscure flats neighborhood where Oakland, Emeryville, and Berkeley meet. A small stretch of San Pablo Avenue will be closed to cars (sadly not only human-driven cars, which would momentarily meet my suggestion). E’ville Eye has a comprehensive post about the event and its origins.

There will be an Oakland Urban Paths walk in the neighborhood during the event, during which obscurities will be related. Usually these walks are in locations with more obvious scenery (hills/stairs) and historical landmarks; I’m looking forward to seeing how they address Golden Gate. Last month they walked between West Oakland and downtown, a historic and potentially beautiful route that currently crosses 980 twice — edit it out!

Monday, July 14 18:00-19:30 there’s a follow-on event at the Golden Gate Branch Library — an OaklandWiki edit party. I haven’t edited Oakland Wiki much yet, but I like the concept. It is one of many LocalWikis, which relative to MediaWiki and Wikipedia have very few features or rules. This ought greatly lower the barrier to many more people contributing information pertinent to their local situation; perhaps someone is researching that? I’ve used the OaklandWiki to look up sources for Wikipedia articles related to Oakland and have noticed several free images uploaded to OaklandWiki that would be useful on Wikipedia.

Saturday, July 19 11:00-16:00 there’s a Wikipedia edit event at Impact Hub in Oakland and online: WikiProject Open Barn Raising 2014 which aims to improve Wikipedia articles about open education — a very broad and somewhat recursive (Wikipedia is an “open educational resource”, though singular doesn’t do it justice, unless perhaps made singular the open educational resource, but that would be an overstatement). If you’re interested in OER, Open Access, open policy and related tools and organizations, or would like to learn about those things and about editing Wikipedia, please participate!

Tangentially, OpenHatch (my endorsement) got a nice writeup of its Open Source Comes to Campus events at WIRED. I view these as conceptually similar to introduction to Wiki[pedia] editing events — all aim to create a welcoming space for newcomers to dive into participating in commons-based peer production — good for learning, careers, communities, and society.

“Open policy” is the most promising copyright reform

Mike Linksvayer, June 27, 2014 12:45 AM   License: CC0 1.0 Universal

Only a few days (June 30 deadline) for applications to the first Institute for Open Leadership. I don’t know anything about it other than what’s at the link, but from what I gather it involves a week-long workshop in the San Francisco area on open policy and ongoing participation in an online community of people promoting open policies in their professional capacities, and is managed by an expert in the field, Timothy Vollmer. Read an interview with Vollmer (wayback link to spare you the annoying list-gathering clickthrough at the original site, not least because its newsletter is an offender).

The institute and its parent Open Policy Network define:

Open Policy = publicly funded resources are openly licensed resources.

(Openly licensed includes public domain.)

Now, why open policy is the most promising knowledge regulation reform (I wrote “copyright” in the title, but the concept is applicable to mitigating other IP regimes, e.g., patent, and pro-commons regulation not based on mitigating IP):

  • Most proposed reforms (formalities can serve as an example for each mention following) merely reduce inefficiencies and embarrassments of freedom infringing regimes in ways that don’t favor commons-based production, as is necessary for sustainable good policy. Even if not usually conceptualized as commons-favoring, open policy is strongly biased in that direction as its mechanism is mandate of the terms used for commons-based production: open licenses. Most proposed reforms could be reshaped to be commons-favoring and thinking of how to do so a useful exercise (watch this space) but making such reshaping gain traction, as a matter of discourse let alone implementation, is a very long-term project.
  • The concept of open policy is scalable. There’s no reason as it gains credence to push for its expansion to everything receiving public or publicly interested support, including high and very low culture subsidy. At the extreme, the only way to avoid being subject to some open policy mandate would be to create restricted works in an IPer colony, isolated from the rest of humanity.
  • In order to make open policy gain much more credence than it has now, its advocates will be forced to make increasingly sophisticated public policy arguments to support claims that open policy “maximizes public investment” or to shift the object of maximization to freedom and equality. Most proposed reforms, because they would only reduce inefficiency and embarrassment, do not force much sophistication, leaving knowledge regulation discourse rotting in a trough where economists abandoned it over a century ago.
  • Open policy implementation has the potential to destroy the rents of freedom infringing industries. For sustainable good policy it is necessary to both build up the commons as an interest group and diminish interest groups that depend or think they depend on infringing freedom. It is possible for open policy to be gamed (e.g., hybrid journal double dipping). As troubling as that is, it seems to me that open policy flips which side is left desperately clawing for loopholes contrary to the rationale of policy. Most reform proposals at least implicitly take it as a given that public interest is the desperate side.
  • Open policy does not require any fundamental changes to national law or international treaties, meaning it is feasible, now. Hopefully a few reformists have generally grasped the no-brainer concept that a benefit obtained today is more valuable than one obtained in the future, e.g., in 95 years. It also doesn’t mean that open policy is merely a “patch” in contrast the “fixes” of most proposed reforms — which aren’t fixes anyway, but rather mitigations of the worst inefficiencies and embarrassments of freedom infringing regimes. If open policy is a patch, it is a one that helps the body of knowledge regulation to heal, by the mechanisms above (promoting commons production and discourse, diminishing freedom infringing interests).

In my tradition of critical cheering, consider the following Open Policy Network statement:

We have observed that current open policy efforts are decentralized, uncoordinated and insular; there is poor and/or sporadic information sharing.

As illustrated by the lack of the Open Source Definition or any software-centric organizations on Open Policy Network lists of its guiding principles and member organizations. Fortunately software is mentioned several times, for example:

If we are going to unleash the power of hundreds of billions of dollars of publicly funded education, research, data, and software, we need broad adoption of open policies.

Hopefully if the Open Policy Network is to become an important venue for moving open policy forward, people who understand software will get involved (by the way, one of the ways “publicly funded” is scalable is that it properly includes procurement, not only wholly funded new resources), e.g., FSFE and April. I know talking about software is scary — because it is powerful and unavoidable. But this makes it a necessity to include in any serious project to reform the knowledge economy and policy. Before long, everything that is not software or suffused with software will be obsolete.

Leaked draft of Commission copyright white paper based on flawed assumptions

Communia Association, June 25, 2014 11:29 AM   License: CC0 1.0 Universal

Earlier this week the IPKat leaked what appears to be an internal draft of the European Commission’s white paper on copyright policy reform (“A copyright policy for Creativity and Innovation in the European Union”). Once finalized this white paper is supposed to sum up the current Commission’s position on making European copyright policy fit for the digital environment. As such the white paper will build on work that has been undertaken during the last couple of years, which included the Licenses for Europe stakeholder dialogue, a number of studies commissioned by the commission and a public consultation on a review of the European copyright rules that generated more than 11 thousand responses.

The white paper has been keenly awaited by anyone engaged in discussions about the future of copyright in the EU. Unfortunately, the document – at least in the form of the leaked internal draft – is a massive disappointment for anyone hoping for a serious review of copyright in the EU. This white paper clearly shows that at the end of one and half years of discussion those in the Commission who do not see a need for reform have managed to maintain their position. The white paper makes almost no mention of a need for legislative reform at the European level and instead presents a disjoined array of measures mainly consisting of recommendations for more harmonization between the member states and some extra guidance from the Commission to the member states.

After having been told by their own studies that a new balance between the rights of creators and the rights of users is both necessary and possible, and after having received literally thousands of responses to the consultation arguing in favor of more user rights, the commission has come full circle back to its initial position: At the core of the white paper lies the notion that copyright is not broken and that most problems created by the current copyright rules can be fixed through the reliance on licensing, minor, negligible changes to existing law, and reiteration of enforcement mechanisms. Coincidentally, this is perfectly in line with the position advocated by traditional publishers and other rights holder representatives throughout the entire process.

[Internet value tree to be inserted]

The authors of the white paper begin from a faulty premise. The entire paper seems to be based on the assumption that the primary function of copyright is to support the production of creative content against predatory business models of technology companies and other non-traditional intermediaries. This understanding is based on the deeply flawed analysis of the internet as a value tree. By now the Commission seems to be at least aware aware of the critique leveled against this analysis as evidenced by the following sentence:

While the distribution of copyright protected content is only one aspect of the wide array of activities taking place through digital networks today, it represents an important part of modern economics and at the same time, a pillar of cultural diversity and freedom of expression.

This passage clearly illustrates that the authors of the white paper do not have any desire to think about effects of copyright rules other than on the ‘production of creative content’. Instead the document further develops this line of thinking though a rather questionable analysis:

From a general economic perspective, policy-making in this area must take into account both static and dynamic effects. In principle lowering the level of copyright protection can, in the short term, have a static, downward effect on the cost of access to existing creative works for consumers and for institutional (e.g educational or cultural establishments) and corporate users (in particular the internet economy). It could lead to lower prices and possibly less costly innovation. However that would reduce creators’ ability to reap the gains from their work – and producers’ and publishers’ capacity to recoup the investment needed to bring works to the market. The economic incentive to create and to invest in new works could weaken, with the dynamic, medium- to longer-term effect being that the production of creative content could be reduced. The faster the rate of obsolescence of creative content, the more dominant the dynamic over the static effect becomes.

This is written to sound very well reasoned and grounded in theory1 but that thin veneer of complicated words can’t cover up the fact that this is (a) speculation (as evidenced by the frequent use of the word ‘could’) and (b) so generic that it bears little resemblance to reality.

While I have not analyzed all 11 thousand responses to the public consultation I am pretty certain that the vast majority of those in favor of changes to the existing copyright rules do not advocate a general ‘lowering of the level of copyright protection’, but rather advocate specific interventions aimed at making the system function better (such as new or adapted exceptions, registration or a shortening of the term of protection). By lumping all of these proposals together and claiming that they would benefit some stakeholders at the cost of others, the Commission makes it more difficult to asses the impact of specific proposals for change. Any good analysis needs to acknowledge that over the centuries copyright has evolved into a system that cannot be analyzed on the level of a binary opposition between more and less protection.

Weak analytical framework = weak outcomes

In the white paper, a very good illustration of the deficits of this approach is the discussion of an exception benefitting cultural heritage institutions. For some reason this discussion is split into two parts (‘Helping knowledge and heritage institutions to fulfill their public interest missions’ and ‘Solutions for mass digitization’). While the first section ends with a vague suggestion to clarify the preservation exception and to update the consultation exception, it completely sidesteps the demand made by cultural heritage institutions (and COMMUNIA) to grant them the right to make works that are not in commercial circulation available online.

The same is true for section on ‘solutions’ for mass digitization–basically a summary of existing EU initiatives in this field (the 2011 Memorandum on Out-of-Commerce works and the 2012 Orphan works directive). The white paper – instead of addressing the demands made by cultural heritage institutions – simply proclaims that

Further steps need to be considered to support the digitizing of European cultural heritage, without undermining the interests of rights holders2. solutions based on the digitization and dissemination of protected works without the rights holders’ consent would not achieve the desired balance and would be, in all likelihood, be contrary to the EU and Member States’ international obligations.

It is exactly the weakness of the Commission’s analytical framework that allows them to plainly state that solutions to making European cultural heritage available online will undermine rights holders (unspecified) interests. This can only be true if the Commission believes that any (new) exception is automatically contrary to rightholders interests because it ‘lowers the level of copyright protection’. It is hard to argue that a targeted exception – for instance, and exception that would permit cultural heritage institutions to make available works from their collections that are not commercially available anymore – undermines anyone’s interests unless one assumes that rights holders have a legitimate interest in absolute control over all uses of their works even if the rights holder is not exploiting those works anymore. According to all known traditions of copyright, this is not the case (the objective of copyright is a balance between the rights of creators and the rights of others).

Wherever you may stand in the discussions about the correct scope of copyright exceptions, it is rather worrisome that the white paper simply ignores the well reasoned demands by publicly funded cultural heritage institutions (including the European Commission’s own Europeana project) that include arguments why such an exception would be well within the parameters of existing international obligations.

A minimum consensus inspired by what is acceptable to rights holders

While the white paper contains some welcome proposals, such as more harmonization of exceptions and clarification of the fact that browsing and hyperlinking do not require permission from rights holders. However, these changes alone will not bring the European copyright rules anywhere near a system that embraces the opportunities offered by the digital environment.

The current draft reads as if the Commission did not manage to develop an understanding of the issues at hand that goes beyond a short-sighted alignment with the perspective of the self proclaimed representatives of producers of creative content. As such the current Commission appears ill suited to provide an outline for a copyright policy that adequately supports creativity and innovation in a radically changed environment.

In its current form the leaked draft of the white paper does not represent more than a minimum consensus that is inspired by the extent of changes to the system that are likely to acceptable to rights holders. It would be extremely dangerous if the next Commission would set out to implement this minimal consensus as this would most likely mean that the much needed discussion on more substantial reform will be buried once more. The current Commission dug itself into a hole by not addressing copyright reform before the end of its term. Let’s hope that the upcoming Commission (and the European Parliament as its watchdog) doesn’t let itself be fooled by whatever will be published later this summer.

Paul Keller

1 It is worth noting that the Rufus Pollock paper referenced in the footnotes (Forever minus a day? Some theory and empirics of optimal copyright) makes the claim that current copyright terms much too long mainly because most right holders stop exploiting their works shortly after publication. It is unclear how this is supposed to support the idea that a weakening of copyright will lead to less creative production.

2 Note that the EU orphan works directive allows ‘the digitization and dissemination of protected works without the rights holders’ consent‘. It may be defective in terms of scope and the burdens imposed on cultural heritage institutions, but illustrates that in many cases rights holders’ consent cannot be obtained because rights holders cannot be located.

{ "title" : "API commons II" }

Mike Linksvayer, June 25, 2014 01:14 AM   License: CC0 1.0 Universal

API Voice:

Those two posts by API Evangelist (another of his sites) Kin Lane extract bits of my long post on these and related matters, as discussed at API Con. I’m happy that even one person obtained such clear takeaways from reading my post or attending the panel.

Quick followups on Lane’s posts:

  • I failed to mention that never requiring permission to implement an API must include not needing permission to reverse engineer or discover an undocumented API. I do not know whether this implies in the context of web service APIs has been thoroughly explored.
  • Lane mentions a layer that I missed: the data model or schema. Or models, including for inputs and outputs of the API, and of whatever underlying data it is providing access to. These may fall out of other layers, or may be specified independently.
  • I reiterate my recommendation of the Apache License 2.0 as currently the best license for API specifications. But I really don’t want to argue with pushing CC0, which has great expressive value even if it isn’t absolutely perfect for the purpose (explicit non-licensing of patents).

Thinking About Value

Rob Myers, June 18, 2014 07:16 AM   License: Attribution-ShareAlike 4.0 International

36f1: A given multidimensional intrinsic motivation space will intersect the complement of a given multidimensional affordance space.

95a1: A multidimensional extrinsic motivation space is a non-affine projection of the former.

187e: Dimension-reducing extrinsic motivation space is a (mathematically!) degenerate projection of that.

0ecb: Monodimensional extrinsic motivation space (…money) is a (mathematical!) singularity.

f61d: (Points, badges and awards are as extrinsic as cash. Intrinsics may be culturally or historically determined or influenced.)

9833: Topological extrinsic motivation spaces with extrinsic motivational singularities are perverse (…incentives) to a degree that is a function of the relation of their centroid to that singularity.

cfe6: Extrinsic value command and market economies are (pretty much affine) reflections of each other, as they themselves argue, given this.

747a: Libertarian/market anarchists and socialist anarchists are probably extrinsic/intrinsic anarchists.

1c85: Intrinsic motivation may be learnt. Extrinsic motivation may be projected.

e2f5: Neither intrinsic nor extrinsic motivation is avoidable. They may complement or clash.

COMMUNIA policy paper on digitization agreements

Communia Association, June 13, 2014 07:17 PM   License: CC0 1.0 Universal

The aim of this policy paper is to make policy recommendations for cultural institutions to preserve the Public Domain when using digitization services provided by private entities. This becomes particularly relevant in the context of the 2013 Public Sector Information (PSI) Directive which adds Museums, Libraries and Archives in the list of Public Sector Bodies (PSBs) that have to make their information reusable.

The Public Domain ensures the free dissemination of knowledge and provides everyone with the potential to access and create new works based on previous works. Thus, all Public Domain works should be free for everyone to use and reuse. Yet, as many cultural heritage institutions are entering into contractual agreements with third parties for the digitization of Public Domain works, there are serious concerns regarding the conditions of access, use and reuse of the resulting digitized copies.

Ideally, digital copies of Public Domain materials would be made immediately and freely available to the public. However, in practice, many of these public-private partnerships impose contractual restrictions that limit access and re-use of Public Domain materials. These restrictions have the same effect as introducing a new proprietary right over the digitized copies of Public Domain material, thereby substantially limiting the use and reuse of content that belongs to the common cultural heritage by subjecting it to a requirement of prior authorisation.

This risk is further increased with the introduction of the PSI 2013 regime, which allows the conclusion of exclusive agreements between private entities and PSBs under restrictive terms and with a potential perpetual validity.

A work in the Public Domain should have the same legal properties, regardless of the format or medium it is in. Hence, works that are in the Public Domain in analog form [should] continue to be in the Public Domain once they have been digitised (see the Europeana Public Domain Charter, Principle #2, and Communia Public Domain Manifesto, Recommendation #5). Contractual agreements as regards the digitization of Public Domain works should acknowledge and respect the fundamental properties of these works, and not attempt to subvert Public Domain principles through contract and other legal mechanisms.

To ensure the broadest availability and long-term accessibility of Public Domain works, their digital copies should be made available to the public in a format and medium allowing for easy identification, retrieval and modification, while ensuring the maximum interoperability of these works. The use of metadata and open formats constitutes an important requirement to ensure that the value of the Public Domain is properly understood and that the works belonging to the Public Domain will always remain freely (re)usable.

In view of this, we make the following recommendations:

No copyright protection

  • over the digitized version:

All parties to the partnership should expressly state that they do not claim copyright nor sui generis rights in the digitized copies of the Public Domain material.

  • The digitized version should be marked as in the Public Domain using a tool such as the Creative Commons Public Domain Mark, or, alternatively, if digitization itself gave rise to new related rights, these should be waived by applying a Public Domain dedication tool such as CC0.
  • Up-to-date metadata and the database (if protected by sui generis rights) should be made available and dedicated to the Public Domain using tools such as the CC0 Public Domain Dedication following the model of Europeana, the Digital Public Library of America, Harvard Library and the British Library.
  • for newly published works:

In countries where copyright law grants an additional term of protection to the publishers of Public Domain works that have never been published before, the rights holder should dedicate the work to the Public Domain by means of tools such as the CC0 Public Domain Dedication.

No contractual restrictions

  • Access and reuse to Public Domain works should be unrestricted, both on premises and on the Internet for any type of use and reuse, including for commercial purposes.

  • No exclusive agreements should be made between the cultural institution and the commercial vendor that would preclude another vendor or institution from digitizing or distributing the same Public Domain material.

Openness & Transparency

  • The institution should use standardized, open technological formats and request the contractor to transfer digitized material and metadata in standardized open technological formats.

  • Bidders’ offers should be made publicly available. Transparency should prevail in the decision-making process affecting public access to our common cultural heritage collections.


The Communia International Association calls for cultural institutions, such as libraries, archives and museums to observe the following guidelines, and to promote them in their negotiations with contractors, donors and legal owners of materials.


Ethereum – Hot Cold UI

Rob Myers, June 03, 2014 05:10 AM   License: Attribution-ShareAlike 4.0 International

One of the example contracts from “Identity, Ownership and Authenticity” was a conceptual art homage called . Here’s an updated version:

init:[1000] = "hot"[1001] = "cold"

    // Swap
    temp =[1000][1000] =[1001][1001] = temp

When it receives a message, it swaps the strings “hot” and “cold” in its memory.

We can access the contract’s memory in AlethZero using JavaScript and build an HTML UI for the contract. Here’s part of the code:

// The hot_cold contract
var contract = "0x84ea345a8c5ca28abee46681ff3a7cee526bb4e4";

// Update the spans with the data from the contact
var fetch = function() {
  document.getElementById("_1000").innerText = eth.storageAt(contract, 1000).bin();
  document.getElementById("_1001").innerText = eth.storageAt(contract, 1001).bin();

It fetches the values from the contract’s memory and assigns them to HTML elements. Like so:


Further JavaScript allows you to update the contract’s state (first warning you that doing so costs Ether in the form of Gas for the transaction):


Once the transaction goes through, the JavaScript code is notified of a change to the contract’s state and updates the UI:


There’s only one version of the properties, so if someone else updates the contract you’ll see the results in your UI. And vice versa.

You can find the code in the repository for this series: is in the contracts directory, and hot_cold.html in the ui directory.

The People’s Platform

Rob Myers, May 30, 2014 03:49 AM   License: Attribution-ShareAlike 4.0 International

The People’s Platform” (TPP) is a frustrating read. An anti-techno-utopian critique of the economics and politics of culture on the Internet, it contains much interesting research and some useful ideas but is hamstrung by a year zero activism approach to the history and current state of the struggle for liberty and sustainability in technology and media.

Year zero activism has two planks. Firstly, the situation has never been worse and only now are activists starting to tackle it. Secondly, anyone who may appear to have previously done so is actually part of the problem. Previous activism is at best ineffective and at worst exacerbatory, previous activists were tone deaf to or in reality made worse the very issues they sought to address.

In TPP this leads at times to an almost ‘pataphysical identity of opposites. Google and Wikipedia are both “open”. Chris Anderson and Richard Stallman both use the word “free”. The nadir of this approach comes later in the book when TPP is explaining the economic and thereby cultural harm of free culture and free software:

Cohen is highlighting a value that has long been central to any progressive movement: respect for labor. From this angle it’s clear that “copyleft”, as the free culture position on copyright is sometimes called, is not “left” in the traditional sense. As Richard Stallman told me, he designed copyleft to ensure the freedom of users to redistribute and modify copies of users to redistribute and modify copies of software. Freedom to tinker is the paramount value it promotes, but a left worthy of the name has to balance that concern with the demand for equality, for parity of wealth and power.

There’s no part of this that’s right.

Stallman’s creation of copyleft was a product of the political development of Free Software in reaction to the alienation of the products of hacker labour. It’s an answer to the property question, which is a question of the left “in the traditional sense”. It entails respect for labour, and ensures that workers can charge for and be paid for their labour.

Users who modify and “tinker” with software do so via programming, that is by working as programmers, by performing the labour of software development. Software developers are first of all software users. If you are not free to use software you are certainly not free to develop it. The same is true of cultural production, a point that TPP seems slightly more open to.

“Copyleft” is not a blanket term for free culture approaches to copyright, it is the name of a particular licensing approach that seeks to address the restrictions of copyright. There is no single free culture approach to copyright. There are copyright abolitionists, copyright libertarians, copyright socialists and those, like Stallman, for whom copyright’s ironisation by copyleft is a means to a political end.

Seeking to reduce free software and free culture to a progressive left wing movement rather than retain the nonpartisan approach that has seen their successes (or, as TPP would have it, has led to identity with their proprietary others) would undermine them. It’s classic entryism, finding a successful specific social cause to shame into attempting more general radical politics. It’s an approach that is doomed to failure.

And copyleft is precisely intended to equalise wealth and power in the use of software. You can share that wealth, and you cannot exert power over anyone else to prevent them from doing so as well. What you cannot do without breaking the effectiveness of copyleft, and what each new critic of copyleft is drawn to like a moth to a flame, is to yoke copyleft’s reflexive ironisation of copyright on software or cultural work to extraneous political objectives.

TPP continues:

Copyleft, with its narrow emphasis on software freedom, even when broadened to underscore the freedom of speech implications of such a position, offers a limited political response to entrenched systems of economic privilege, and it does not advance limits on profitability or promote fair compensation. Free culture, with its emphasis on access, does not necessarily lead to a more just social order.

Ignoring the slip from free software to free culture, the slip from social to economic justice, and the inaccurate characterization of free culture as emphasizing access, this is a political erasure. Free software and free culture may not have provided grossly coercive tools to the political left but they have, by TPP’s own explanation of their redistributive and deprivileging effects, led to a more just social order. And it requires precisely the ‘pataphysics of “free” and “open” that TPP develops to argue that they limit compensation but not profit.

Later, TPP calls for the development of more socialised alternatives to Web 2.0’s ad-driven surveillance model, and for the development of more equitable alternatives to unpaid cultural workers trying to live on whuffie while making Silicon Valley CEOS rich. I agree that this is vitally important. I’ve worked on several myself. I’ve seen creators paid, clients satisfied, citizens communicating, audiences enjoying media, with millions of dollars put into the cultural economy and tens of thousands of people engaged each month by projects I’ve been involved in. There is absolutely more work to do, but ignoring existing efforts or worse conflating them with the problems they exist to address will only ensure that this is always the case.

There is another key conclusion of TPP that I agree with wholeheartedly. We need a sustainable ecosystem for culture. That is, we need technological and economic systems that sustainably align consumption and production incentives with each other and with political and creative liberty. And state and corporate mechanisms for spreading risk absolutely have a part to play in this. But as blank media levies and the deep packet inspection consequences of the proposals of “Promises To Keep” show, this is a task that needs approaching with an insight and subtlety that both pro- and anti- free culture activists often lack.

In this sense at least TPP is not year zero, it is business as usual.

API commons

Mike Linksvayer, May 29, 2014 08:04 PM   License: CC0 1.0 Universal

Notes for panel The API Copyright Emergency: What’s Next? today at API Con SF. The “emergency” is the recent decision in Oracle v. Google, which I don’t discuss directly below, though I did riff on the ongoing case last year.

I begin with and come back to a few times Creative Commons licenses as I was on the panel as a “senior fellow” for that organization, but apart from such emphasis and framing, this is more or less what I think. I got about 80% of the below in on the panel, but hopefully still worth reading even for attendees.

A few follow-up thoughts after the notes.

Creative Commons licenses, like other public licenses, grant permissions around copyright, but as CC’s statement on copyright reform concludes, licenses “are not a substitute for users’ rights, and CC supports ongoing efforts to reform copyright law to strengthen users’ rights and expand the public domain.” In the context of APIs, default policy should be that independent implementation of an API never require permission from the API’s designer, previous implementer, or other rightsholder.

Without such a default policy of permission-free innovation, interoperability and competition will suffer, and the API community invites late and messy regulation at other levels intending to protect consumers from resulting lock-in.

Practically, there are things API developers, service providers, and API consumers can do and demand of each other, both to protect the community from a bad turn in default policy, and to go further in creating a commons. But using tools such as those CC provides, and choosing the right tools, requires looking at what an API consists of, including:

  1. API specification
  2. API documentation
  3. API implementations, server
  4. API implementations, client
  5. Material (often “data”) made available via API
  6. API metadata (e.g, as part of API directory)

(depending on construction, these could all be generated from an annotated implementation, or could each be separate works)

and what restrictions can be pertinent:

  1. Copyright
  2. Patent

(many other issues can arise from providing an API as a service, e.g., privacy, though those are usually not in the range of public licenses and are orthogonal to API “IP”, so I’ll ignore them here)

1-4 are clearly works subject to copyright, while 5 and 6 may or may not be (e.g., hopefully not if purely factual data). Typically only 3 and 4 might be restricted by patents.

Standards bodies typically do their work primarily around 1. Relatively open ones, like the W3C, obtain agreement from all contributors to the standard to permit royalty-free implementation of the standard by anyone, typically including a patent license and permission to prepare and perform derivative works (i.e., copyright, to extent such permission is necessary). One option you have is to put your API through an existing standards organization. This may be too heavyweight, or may be appropriate yet if your API is really a multi-stakeholder thing with multiple peer implementations; the W3C now has a lightweight community group venue which might be appropriate. The Open Web Foundation’s agreements allow you to take this approach for your API without involvement of an existing standards body​. Lawrence Rosen has/will talk about this.

Another approach is to release your API specification (and necessarily 2-4 to the extent they comprise one work, ideally even if they are separate) under a public copyright license, such as one of the CC licenses, the CC0 public domain dedication, or an open source software license. Currently the most obvious choice is the Apache License 2.0, which grants copyright permission as well as including a patent peace clause. One or more of the CC licenses are sometimes suggested, perhaps because specification and documentation are often one work, and the latter seems like a “creative” work. But keep in mind that CC does not recommend using its licenses for software, and instead recommends using an open source software licenses (such as Apache): no CC license includes explicit patent permission, and depending on the specific CC license chosen, it may not be compatible with software licenses, contrary to goal of granting clear permission for independent API implementation, even in the face of a bad policy turn.

One way to go beyond mitigating “API copyrightability” is to publish open source implementations, preferably production, though reference implementations are better than nothing. These implementations would be covered by whatever copyright and patent permissions are granted by the license they are released under — again Apache 2.0 is a good choice, and for software implementation CC licenses should not be used; other software licenses such as [A]GPL might be pertinent depending on business and social goals.

Another way to create a “thick” API commons is to address material made available via APIs, and metadata about APIs. There, CC tools are likely pertinent, e.g., use CC0 for data and metadata to ensure that “facts are free”, as they ought be in spite of other bad policy turns.

To get even thicker, consider the architecture, for lack of a better term, around API development, services, and material accessed and updated via APIs. Just some keywords: Linked Open Data, P2P, federation, Lots of Copies Keep Stuff Safe, collaborative curation.

The other panelists were Pamela Samuelson, Lawrence Rosen, and Annette Hurst, moderated by David Berlind.

I’m fairly familiar with Samuelson’s and Rosen’s work and don’t have comments on what they said on the panel. If you want to read more, I recommend among Samuelson’s papers The Strange Odyssey of Software Interfaces and Intellectual Property Law which shows that the “API copyright emergency” of the panel title is recurrent and intertwined with patent, providing several decades of the pertinent history up to 2008. Contrary to my expectation in the notes above, Rosen didn’t get a chance to talk about the Open Web Foundation agreements, but you can read his 2010 article Implementing Open Standards in Open Source which covers OWF.

Hurst is a lawyer for Orrick representing Oracle in the Oracle v. Google case, so understandably advocated for API copyright, but in the process made several deeply flawed assertions could have consumed the entire duration of the panel, but Berlind did a good job of keeping the conversation moving forward. Still, I want to mention two high level ones here, my paraphrases and responses:

Without software copyright the software economy would go away. This is refuted by software development not for the purposes of selling licenses (which is the vast majority of it), especially free/open source software development, and services (e.g., API provision, the source of which is often never published, though it ought be, see “going beyond” recommendations above). Yes the software economy would change, with less winner-take-all monopoly and less employment for Intellectual Parasite lawyers. But the software economy would be huge and very competitive. Software is eating the world, remember? One way to make it help rather than pejoratively eat the world is to eject the parasites along for the ride.

Open source can’t work without software copyright. This is refuted by 1) software source sharing before software copyright; 2) preponderance of permissively licensed open source software, in which the terms do not allow suing downstream developers who do not share back; 3) the difficulty of enforcing copyleft licenses which do allow for suing downstream developers who do not share back; 4) the possibility of non-copyright regulation to force sharing of source (indeed I see the charitable understanding of copyleft as prototyping such regulation; for perspective on the Oracle v. Google case from someone with a more purely charitable understanding of copyleft, see Bradley Kuhn); and 5) demand and supply mechanisms for mandating sharing of source (e.g., procurement policies, distribution policies such as Debian’s).

These came up because Hurst seemed to really want the audience to conflate software copyright in general (not at issue in the case, settled in a bad place since the early 1980s) and API copyright specifically. Regarding the latter, another point which could have been made is the extent to which free/open source software has been built around providing alternatives to proprietary software, often API-compatible. If API copyright could prevent compatible implementation without permission of any sort, open source, competition, and innovation would all be severely hampered.

There is a recent site called API Commons, which seems to be an API directory (Programmable Web, which ran the conference, also has one). My general suggestion to both would be to implement and facilitate putting all elements of APIs listed above in my notes in the commons. For example, they could clarify that API metadata they collect is in the public domain, publish it as Linked Open Data, and encourage API developers and providers they catalog to freely license specifications, documentation, implementations, and data, and note such in the directories.

In order to get a flavor for the conference, I listened to yesterday morning’s keynotes, both of which made valiant attempts to connect big picture themes to day to day API development and provision. Allow me to try to make connections back to “API commons”.

Sarah Austin, representing the San Francisco YMCA, pointed out that the conference is near the Tenderloin neighborhood, the poorest in central San Francisco. Austin asked if kids from the Tenderloin would be able to find jobs in the “API economy” or would they be priced out of the area (many tech companies have moved nearby in the last years, Twitter perhaps the best known).

Keith Axline claimed The Universe Is Programmable. We Need an API for Everything, or to some extent, that learning about the universe and how to manipulate it is like programming. Axline’s talk seemed fairly philosophical, but could be made concrete with reference to the Internet of Things, programmable matter, robots, nanobots, software eating the world … much about the world will indeed soon be software (programmable) or obsolete.

Axline’s conclusion was in effect largely about knowledge policy, including mourning energy wasted on IP, and observing that we should figure out public support for science or risk a programmable world dominated by IP. That might be part of it, but keeps the focus on funding, which is just where IP advocates want it — IP is an off-the-balance-sheets, “free” taking. A more direct approach is needed — get the rules of knowledge policy right, put freedom and equality as its top goals, reject freedom infringing regimes, promote commons (but mandating all these as a condition of public and publicly interested funding is a reasonable starting place) — given these objectives and constraints, then argue about market, government, or other failure and funding.

Knowledge policy can’t directly address the Austin’s concerns in the Tenderloin, but it does indirectly affect them, and over the long term tremendously affect them, in the Tenderloin and many other places. As the world accelerates its transition from an industrial to a knowledge dominated economy, will that economy be dominated by monopoly and inequality or freedom and equality? Will the former concentrations continue to abet instances of what Jane Jacobs called “catastrophic money” rushing into ill-prepared neighborhoods, or will the latter tendencies spread the knowledge, wealth, and opportunity?


Rob Myers, May 28, 2014 06:11 AM   License: Attribution-ShareAlike 4.0 International

ace is a command-line development environment for Ethereum contracts.

It’s designed to simplify writing and testing contracts. The initial (alpha!) version supports Serpent contracts and local testing using pyethereum.

You can get it here:

For an Emacs mode for editing Serpent code, see here:

Bug reports gratefully received.

serpent-mode for Emacs

Rob Myers, May 21, 2014 03:12 AM   License: Attribution-ShareAlike 4.0 International


serpent-mode is a GNU Emacs major mode for editing and compiling Serpent code.

Serpent is a Python-inspired language for writing smart contracts that compile to Ethereum Virtual Machine bytecode. It adds syntax highlighting and indentation for Serpent code, and allows files to be compiled from within Emacs.

You can get the serpent-mode here:

Some of the indentation code has been borrowed from Emacs’ built-in Python mode but any deficiencies are a result of my simplifying it to work with Serpent. Reports of errors and omissions gratefully received.

Ethereum Contract Free Software Licensing

Rob Myers, May 20, 2014 06:18 AM   License: Attribution-ShareAlike 4.0 International

Here’s a simple example of a contract that is licensed under the GNU Affero General Public License:

LICENSE = ["Copyright 2014 Rob Myers", "Licensed GNU AGPL V3+"]
SOURCE = ["https:\/\/\/robmyers\/", "artworld-ethereum/"]

// Make sure we have enough gas to run the contact
if tx.value < tx.basefee * 100:
    // If not, stop

if[0] == "license":
   return(LICENSE, 2)
else if[0] == "source":
   return(SOURCE, 2)
    // Return false

Assuming that being part of the blockchain doesn’t clash with the AGPL. Anyone? :-)

Cryptocurrency Culture

Rob Myers, May 14, 2014 12:43 AM   License: Attribution-ShareAlike 4.0 International

“”The Cypherfunks” is a network of musicians working individually & together to make music under the same name. A cryptocurrency [FUNK] acts as “stock” in the band.

Both the currency & band are completely decentralized. It is a grand experiment in permission-less, internet scale innovation in music, collaboration, and technology.”

“monegraph helps anyone verify that a digital artwork is an original, exactly as created by the artist.

monegraph encourages a vibrant market around the sale and exchange of digital art.

monegraph uses the same technology as Bitcoin to let anyone participate in the digital art market.”

The Ephemeral Artcoin (EA) is a platform designed to spark the creation of qualitative new works of non-commercial art in the post-bitcoin digital economy.

“Fine art meets bitcoin cold storage in Troy Fearow’s “labour of love”, CryptoArt, a project that took the fine art dealer 8 months to construct and launch.

Troy searches for and commissions high level artists, starting with Alexander Fedosov of the Ukraine, to produce fine art paper wallets in limited editions. These prints are meant for bitcoiners who wish to store their bitcoin safely and show them off in a beautiful way.”

“Cheers is an app that allows you to tip (or “Cheer”) any musician or band in the world using Bitcoin. You can Cheer any song or band, whether it’s your all-time favorite, or just a song that you loved on the radio that you’ve never heard before. See what your friends are Cheering, discover new music and reward them for finding it.”

Artworld Ethereum – Identity, Ownership and Authenticity

Rob Myers, May 09, 2014 11:06 PM   License: Attribution-ShareAlike 4.0 International

Ethereum is a distributed computing system for writing and executing smart contracts. Inspired by Bitcoin, it’s currently in development with a planned late 2014 release date. The term “smart contracts” was coined around 1993 by computer scientist Nick Szabo to describe computer-readable code that replaces lawyer-readable code to describe agreements and obligations between people.

It’s a very literal take on Lawrence Lessig’s argument that “code is law”, a libertarian attempt to reduce the costs and uncertainty of having to trust human beings and interpret ambiguous human language, or possibly a dystopian replacement of rights and safeguards with binary logic.

Smart contracts can be used to implement smart property, physical goods governed by computer code, and Distributed Autonomous Organizations, which replace written constitutions with code running on Ethereum’s Blockchain.

This series of articles will look at applications of Ethereum to the production, exhibition, critique and institutions of art. Starting with digital art as smart property.

The sample code is written in Serpent, the high level Ethereum programming language, and is current as of Ethereum POC 5. It will be revised and tested for the release version of Ethereum.

You can learn more about Ethereum here and here. You can learn more about Serpent here and here.

Storing and Identifying Digital Art In Ethereum

There are three cases of digital art as smart property. The first is the conceptual or code art case, where the code of the contract itself is or contains the artwork. The second is the Ethereum storage case, where a small digital artwork is stored in the Ethereum datastore. The third is the stored identifier case, where only an identifier or proxy for the artwork is stored with the contract.

Conceptual and Code Art

Contracts that are themselves art are a simple case. They should store their owner’s Ethereum address and ensure that transactions initiating actions that only the owner should be able to perform come from that address.

Conceptual Art

As art is defined by its inutility, a contract that does nothing must be art. ;-)



A contract that does something, but nothing useful.

init:[1000] = "hot"[1001] = "cold"

    // Make sure we have enough gas to run the contact
    if tx.value < tx.basefee * 100:
        // If not, stop

    // Swap
    temp =[1000][1000] =[1001][1001] = temp

Numbered Works

A simple generative work that creates a new, original piece for each request.


    ARTWORK = "Work #"
    // Make sure we have enough gas to run the contact
    if tx.value < tx.basefee * 400:
        // If not, stop

    // Get the number of the work to produce
    // Store the number to use for the next work[ARTWORK.NUMBER.INDEX] =[ARTWORK.NUMBER.INDEX] + 1
    // Return the work
    return([ARTWORK, number], 2)

Data Visualization

A simple customised generative work / data visualization. The output looks something like:

when assembled.

HEX = ["0", "1", "2", "3", "4", "5", "6", "7", "8", "9", "A", "B", "C", "D", "E", "F"]
ARTWORK = ["<svg><rect x=\"23\" y=\"23\" ", "height=\"123\" width=\"123\" ", "style=\"fill:none;stroke:#", ";stroke-width:32\" /></svg>"]

// Make sure we have enough gas to run the contact
if tx.value < tx.basefee * 500:
    // If not, stop

// If there are enough arguments
// and the command to create the work is being given
if msg.datasize == 1 and[0] == "create":
    artwork = array(ARTWORK.LENGTH)
    artwork[0] = ARTWORK[0]
    artwork[1] = ARTWORK[1]
    artwork[2] = ARTWORK[2]
    artwork[9] = ARTWORK[3]
    // Copy the most significant hex bytes of the key as an html colour
    index = 0
    hash.bytes = msg.sender
    while index < 3:
        current.byte = hash.bytes % 256
        hash.bytes = hash.bytes / 256
        hi = HEX[current.byte / 16]
        lo = HEX[current.byte % 16]
        artwork[ARTWORK.INSERT.END - (index * 2)] = lo
        artwork[ARTWORK.INSERT.END - (index * 2) + 1] = hi
        index = index + 1
    return(artwork, ARTWORK.LENGTH)
// Otherwise
    // Logical false for failure

Stored Art

Digital art can be stored in a contract’s bytecodes or permanent storage rather than generated by the contract’s code.

A Stored Image

ARTWORK = ['P1\n32 32\n00000000000000010000000', '00000000000000000000000010000000', '000000000000000\n0000000001000000', '00000000000000000000000001000000', '0000000000000000000000\n001100000', '00000000000000000000001100001010', '00001100001000000000100000000\n00', '01011000010000000000100000000000', '01111000100000000001000000000001', '1111\n000100000000001000000000011', '11110110000000000010000000001111', '11100010000\n00000000000000011111', '11000000000000000010000001111111', '110000001000000000\n1000001111111', '11000000000000000000000000111111', '1110000001000000000000000\n000011', '11111000000000000000100000000001', '11111100000100000000000000000111', '\n1111110000000000000010000000011', '11111100000100000000010000001111', '1111000\n000010000000000000000111', '11110000000000000000000100001111', '10000000000100\n00000000000001111', '10000000000010000000000001111100', '000000000001000000000\n0000011100', '00000000000100000000000000101000', '0000000000000000000000000000\n010', '10000000010100000000000000000000', '01010010100000000000000000000000', '000\n0110000000000000000000000000', '00000100000000000000000000000000', '0000010000\n000000000000000000000', '00000010000000000000000']


// Make sure we have enough gas to run the contact
if tx.value < tx.basefee * 1000:
    // If not, stop

// If there are enough arguments
// and the command to show the work is being given
if msg.datasize == 1 and[0] == "exhibit":
    // Just return the artwork
// Otherwise
    // Logical false for failure

Identifiers For Digital Art

Where a work of digital art will not fit in the blockchain a more compact identifier must be stored in the contract and used to refer to the work instead.

Ideally a method for identifying unique instances of a digital artwork will be:

  • Stable. The identifier should be usable for decades. Web URLs for example can change or become inaccessible as services change how they serve content or go out of business.
  • Verifiable. The identifier should be usable as a way of verifying that a resource is the one it refers to. Cryptographic hashes for example will not work with digital images that have been resized or GPS co-ordinates that differ even fractionally.
  • Amendable. Where stability fails or a change in ownership requires a change in identifier, it should be possible to update the identifier in a trusted and verifiable way.
  • Sufficient. The information required to identify the resource should be usable directly from the contract rather than requiring external information to complete it.
  • Private. An identifier should leak as little information about the owner of the resource as possible. For example GPS co-ordinates or street addresses, while stable, do locate the resource and possibly its owner. Storing only the cryptographic hash of an identifier can mitigate this.

Some of these criteria clash and therefore any given method of identification must trade them off against each other. For example being private and verifiable, or stable and amendable.

For artworks to interact with smart contracts we need a way of identifying them in those contracts.Where a digital artwork is too large or complex to keep in the contract’s code or storage, a proxy or compact identifier that refers to the must be used.

The following identifiers have various strengths and weaknesses. We’ll use some of them in the next section.


A URL, such as a web site address, is a clear public identifier. It lacks privacy and is only as stable as the service hosting it, but has the advantage of being unique. To add a veneer of privacy, only the cryptographic hash of the URL can be stored by the contract and this can be checked against the hash of a URL by anyone who wishes to check whether it is the instance of the work referred to by the contract.

For example the url:×1024.png

has the SHA256 hash:


Never use a link shortening service or a consumer third party hosting service for work represented as URLs, such services are likely to go out of business or change their URL structure, rendering identifiers using them useless. When using your own site for hosting work make sure both to both keep your domain name registered and the server running and to make provisions for them to be maintained when you are no longer able or willing to do so.

File Hash

Producing a cryptographic hash of a work contained in or represented by a file is simple and uniquely identifies the data contained by the file (although any copies of the file will have the same hash). It is better to hash the contents of the file rather than the file itself: an image that has the same pixel values as a PNG or a GIF will have a very different structure on disk in each of those formats. Likewise the full-size or full-quality version of the contents of the file should be hashed rather than a thumbnail or a lossy version.

Git Repository Commit Hash

Modern decentralised version control systems use cryptographic hashes to identify commits. Hashes can identify version of works in a series within a version control repository, although they are best accompanied by a URL or other identifier for the repository.

Serial Number or UUID

A serial number or unique identifier embedded in the work’s filename or metadata can be used to identify it. Visible watermarks are the mark of the amateur, and steganographic watermarks are easily defeated.

Cryptographic Signing

When producing editions of a digital work, each can be signed by the artist to identify it as authorised.


When all else fails, a unique name and description for a work is a useful identifier.

Art As Smart Propery

A Simple Owned Work

OWNER = 0x7c8999dc9a822c1f0df42023113edb4fdd543266

// Get the owner Ethereum address

A Simple Owned Work That Confirms Ownership

OWNER = 0x7c8999dc9a822c1f0df42023113edb4fdd543266

// Make sure we have enough gas to run the contact
if tx.value < tx.basefee * 100:
    // If not, stop

// If the Ethereum address sent matches the owner
if[0] == OWNER:
    // Return true
// Otherwise
    // Return false

A Simple Owned Stored Work

OWNER = 0x8802b7f0bfa5e9f5825f2fc708e1ad00d2c2b5d6 // Artist initially
WORK = "The art happens here."

// Make sure we have enough gas to run the contact
if tx.value < tx.basefee * 200:
    // If not, stop

// If there are enough arguments
// and the command to return the owner address is given
if msg.datasize == 1 and[0] == "owner":
    // Return the owning Ethereum address
// If there are enough arguments
// and the command to return the artwork is given
if msg.datasize == 1 and[0] == "work":
    // Return the work
// Otherwise
    // Return logical failure

Simple Transferable Stored Work

    ARTIST = 0x8802b7f0bfa5e9f5825f2fc708e1ad00d2c2b5d6
    OWNER = 1001
    // Initialize the owner to be the artist[OWNER] = ARTIST
    OWNER = 1001
    ARTWORK = "The art happens here."
    // Make sure we have enough gas to run the contact
    if tx.value < tx.basefee * 200:
        // If not, stop

    // If the message is from the current owner
    // and there are enough arguments
    // and the command to transfer is being given
    if msg.sender ==[OWNER] and msg.datasize == 2 and[0] == "transfer":
        // Transfer it to a new owner[OWNER] =[1]
    // If there are enough arguments
    // and the command to show the work is being given
    else if (msg.datasize == 1):
        // Just return the artwork
    // Otherwise
        // Logical false for failure

An Ownership Registry For Digital Art

if tx.value < tx.basefee * 200:     // If not enough gas, stop     stop // If data was provided, it won't overwrite the code, and the artwork is unregistered if msg.datasize == 1 and[0] > 1000 and[[0]] == 0:
    // Set the owner to be the sender[[0]] = msg.sender
    // Do nothing

A Hash-based Ownership Registry For Specific Instances Digital Art

This is a registry for ownership of artworks at specific urls. Artworks are identified by the hash of their file contents and by the hash of their url. Owners are identified by Ethereum address.

if tx.value < tx.basefee * 200:
    // If not, stop

// If registration is being requested
if msg.datasize == 3 and[0] == "register":
    // If the url/work combination has not been claimed
    if ![[1]]:
        // Set the owner to be the provided Ethereum address[[1]] = msg.sender
        // Store the artwork hash next to the url ownership information[[1] + 1] =[2]
        // return success
    // If the sender was trying to overwrite a work they do not own
        // They cannot set it, so return failure
// If ownership confirmation is being requested
// Confirm that the work and url hashes match
else if msg.datasize == 4 and[0] == "confirm":
    // Check the provided hashes against the stored work and url hashes
    return(([[2]] ==[1]) and ([[2] + 1] ==[3]))
// If no action was specified
    // Otherwise do nothing

Authenticating Art In Ethereum

Authentication, like ownership, is related to identity and contract law.

A Simple Certificate Of Authenticity For Digital Art

ARTIST = 0x8802b7f0bfa5e9f5825f2fc708e1ad00d2c2b5d6
ARTWORK.HASH = 0x76bba376ea574e63ab357b2374d1cee5aa77d24db38115e3824c5cc4f443d5f7

return(([0] == ARTIST) and ([1] == ARTWORK.HASH))
ARTIST = 0x8802b7f0bfa5e9f5825f2fc708e1ad00d2c2b5d6
WORK.HASH = 0x76bba376ea574e63ab357b2374d1cee5aa77d24db38115e3824c5cc4f443d5f7
URL.HASH = 0xa005b1625af0b6ee080dafb904c4505ad285764071ee45a8786159bd1a282634

// If there are enough arguments
if msg.datasize == 2:
    // Check the provided hashes against the stored work and url hashes
    return(([0] == WORK.HASH) and ([1] == URL.HASH))
// Otherwise
    // Do nothing

Catalogue Raisonné For Digital Artists

ARTIST = 0x8802b7f0bfa5e9f5825f2fc708e1ad00d2c2b5d6

// Make sure we have enough gas to run the contact
if tx.value < tx.basefee * 200:
    // If not, stop
// If the message is from the artist
if msg.datasize == 1 and msg.sender == ARTIST:
    // Add the work to the catalog[[0]] = 1
// check inclusion
else if msg.datasize == 1:
    // Check whether the artwork is in the catalog
// Otherwise


Rob Myers, May 04, 2014 05:43 AM   License: Attribution-ShareAlike 4.0 International


Monkeycoin is the follow-up to Facecoin. It is a Bitcoin-like cryptocurrency that uses trying to write the complete works of Shakespeare as its proof of work. You can find out more here.


Rob Myers, May 04, 2014 02:43 AM   License: License

pome "(Poets Are|Poet Is)"
pome "Poets? Must"
pome "(Poems Are|Poem Is)"
pome "Poetry Is"
pome "Best Poetry"
pome "Good Poetry"
pome "Bad Poetry"
pome "Worst Poetry"

I have a piece of work in the latest issue of Truck, curated by Alan Sondheim:

It’s a Bash script called Pome, you can read it and its output here:

The script downloads the text of the Project Gutenberg CD and searches for mentions of poetry and related concepts, gathering together assertions about them. Originally I started using Python, but Bash ended up being easier to use. It serves as a demonstration of the strengths and weaknesses of Digital Humanities approaches to text and to fear of them.

I like the output, particularly the last piece. original articles now BY-SA after a week

Mike Linksvayer, May 01, 2014 06:30 PM   License: CC0 1.0 Universal started in 1998 as Linux Weekly News. Its coverage is broader now — Free/Open Source Software, and sometimes immediate neighbors, with in-depth coverage of Linux kernel and related system software development — and expert. It’s one of the few publications that I can read an article about a topic that I have in depth knowledge of and not then question whether all reporting on topics I don’t have in depth knowledge of is also that bad. Because’s reporting is good (other readers I know seem to agree).’s logo says “Linux info from the source”; I suspect the method implied (reading source, commits, mailing lists, talking to developers) explains the goodness.

I’ve poked fun at paywalls, but for a paywall,’s is simple and well done: most new articles are subscriber-only for one week, and subscribers can generate a link to share a paywalled article with non-subscribers. The site does have ads, though disappointingly mostly Google AdSense. It is too bad such an in-depth industry publication doesn’t attract highly specific ads, like trade publications or even well done user group newsletters used to.

It seems that starting recently releases its original articles under the CC-BY-SA-4.0 license after one week. As of this writing a week old article, a current article, another of more general interest, archive of author guidelines timestamped February 10 mentioning “possibly under a free license”, and today mentioning CC-BY-SA-4.0. I imagine that given’s in-depth reporting, especially on the Linux kernel, some articles might actually be usefully incorporated into educational material, documentation, Wikipedia articles.

Subscribe, or occasionally read articles older than one week. Either would probably be good for your information diet.

Update 20140507: The ‘current’ articles above are now a week old, and CC-BY-SA-4.0 licensed.

Without Intellectual Property Day [edit]

Mike Linksvayer, April 27, 2014 05:41 AM   License: CC0 1.0 Universal

Without Intellectual Property Day by Parker Higgins of the EFF is quite good, and released under CC-BY. Clearly deserving of adaptation. Mine below, followed by a diff.

April 26 is the day marked each year since 2000 by the World Intellectual Property Organization (WIPO) as “World Intellectual Property Day”, in which WIPO tries to associate its worldwide pushes for more enclosure with creativity.

Celebrating creativity is a good thing, but when you’re a hammer, everything looks like a nail. For the World Intellectual Property Organization, it may seem like creativity and “intellectual property” are inextricably linked. That’s not the case. In the spirit of adding to the conversation, let’s honor all the creativity and industry that is happening without a dependence on a system intellectual property.

There’s an important reason to encourage and promote creativity outside the bounds of increasingly restrictive laws: to the extent such creativity succeeds, it helps us re-imagine the range of desirable policy and reduces the resources available to enclosure industries to lobby for protectionism — in sum shifting what is politically possible. It’s incumbent on all of us who want to encourage creativity to continue to explore and utilize structures that reward creators without also restricting speech.

Comedy, Fashion, Cooking, Magic, and More

In the areas in which intellectual freedom is not typically infringed, there is tremendous innovation and consistent creativity outside of the intellectual property system. Chefs create new dishes, designers imagine new styles, comedians write new jokes, all without a legal enforcement mechanism to restrict others from learning and building on them.

There may be informal systems that discourage copying—the comedy community, to take one example, will call out people who are deemed to be ripping off material—but for the most part these work without expensive litigation, threats of ruinous fines, and the creation of systems of surveillance and censorship.

Contributing to a Creative Commons

The free software movement pioneered the practice of creating digital media that can legally and freely be shared and expanded, building a commons. The digital commons idea is being pushed in more areas than ever before, including culture, education, government, hardware design, and research. There are some projects we’re all familiar with — Wikipedia is perhaps the most prominent, creating an expansive and continuously updated encyclopedia that is freely accessible under permissive terms to the entire world.

Focusing on this year’s World IP Day theme of movies, there have been some impressive contributions the commons over the years. Nina Paley’s feature animation Sita Sings The Blues, which she released into the public domain, has spread widely, inspired more work, and earned her money. The short films from the Blender Foundation have demonstrated cutting-edge computer graphics made with free software and, though they’ve sometimes been on the receiving end of bogus copyright takedowns, have been watched many millions of times.

Kickstarting and Threshold Pledges

Finally, crowdfunding platforms like Kickstarter and Indie-Go-Go have made a major splash in the last few years as another fundraising model that can complement, or even replace, copyright exclusivity. These platforms build on theoretical framework laid out by scholars like John Kelsey and Bruce Schneier in the influential “Street Performer Protocol” paper, which set out to devise an alternative funding system for public domain works. But most crowdfunded works are not in the commons, indicating an need for better coordination of street patrons.

Looking at movies in particular: Kickstarter alone has enabled hundreds of millions of dollars of pledges, hundreds of theatrical releases, and seven Oscar-nominated films (including Inocente, winner of the Best Documentary Short category). Blender Foundation is currently crowdfunding its first feature length film, Gooseberry.


The conceit of copyright and other “intellectual property” systems is that they can be calibrated to promote the progress of science and the useful arts. But the reality of these systems is corruption and rent seeking, not calibration. The cost is not just less creativity and innovation, but less freedom and equality.

It’s clear from real world examples that other systems can achieve the goal of promoting creativity, progress, and innovation. We must continue to push for both practice and policy that favors these systems, ultimately rendering “intellectual property” a baffling anachronism. In a good future, a policy-oriented celebration of creativity and innovaion would be called World Intellectual Freedom Day.

wdiff -n eff-wipd.html eff-wipd-edit.html |colordiff |aha -w > eff-wipd-diff.html
[-<p>Today, April 26,-]{+<p>April 26+} is the day marked each year since 2000 [-as "Intellectual Property Day"-] by the <a href="">World Intellectual Property Organization [-(WIPO)</a>. There are many areas where EFF has not historically agreed with WIPO,-] {+(WIPO)</a> as "World Intellectual Property Day", in+} which [-has traditionally pushed-] {+WIPO tries to associate its <a href="">worldwide pushes+} for more [-restrictive agreements and served as a venue for <a href="">domestic policy laundering</a>, but we agree that celebrating-] {+enclosure</a> with creativity.</p>+}
{+<p>Celebrating+} creativity is a good [-thing.</p>-]
[-<p>As the saying goes, though:-] {+thing, but+} when you're a hammer, everything looks like a nail. For the World Intellectual Property Organization, it may seem like creativity and <a href="">"intellectual property"</a> are inextricably linked. That's not the case. In the spirit of adding to the conversation, [-we'd like to-] {+let's+} honor all the creativity and industry that is happening <i>without</i> a dependence on a system intellectual property.</p>
<p>There's an important reason to encourage {+and promote+} creativity outside the bounds of increasingly restrictive [-laws, too. As Ninth Circuit Chief Justice Alex Kozinski eloquently explained in <a href="">a powerful dissent</a> some 20 years ago, pushing only for more IP restrictions tips a delicate balance against creativity:</p>-]
[-<blockquote><p>Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on-] {+laws: to+} the [-works-] {+extent such creativity succeeds, it helps us re-imagine the range+} of [-those who came before. Overprotection stifles the very creative forces it's supposed-] {+desirable policy <i>and</i> reduces the resources available+} to [-nurture.</p></blockquote>-]
[-<p>It's-] {+enclosure industries to lobby for protectionism -- in sum shifting what is politically possible. It's+} incumbent on all of us who want to encourage creativity to continue to explore {+and utilize+} structures that reward creators without also restricting speech.</p>
<h3>Comedy, Fashion, Cooking, Magic, and More</h3>
<p>In the areas [-known as copyright's "negative spaces,"-] {+in which intellectual freedom is not typically infringed,+} there is tremendous innovation and consistent creativity outside of the intellectual property system. Chefs create new dishes, designers imagine new styles, comedians write new jokes, all without a legal enforcement mechanism to restrict others from learning and building on them.</p>
<p>There may be informal systems that discourage copying—the comedy community, to take one example, <a href="">will call out people</a> who are deemed to be ripping off material—but for the most part these work without expensive litigation, threats of ruinous fines, and the creation of systems [-that can be abused to silence lawful non-infringing speech.</p>-] {+of surveillance and censorship.</p>+}
<h3>Contributing to a Creative Commons</h3>
<p>The free software movement [-may have popularized-] {+pioneered+} the [-idea-] {+practice+} of creating digital media that can legally and freely be shared and expanded, [-but the free culture movement has pushed the-] {+building a commons. The digital commons+} idea [-further-] {+is being pushed in more areas+} than ever [-before.-] {+before, including culture, education, government, hardware design, and research.+} There are some projects we're all familiar [-with—Wikipedia-] {+with -- Wikipedia+} is perhaps the most prominent, creating an expansive and continuously updated encyclopedia that is freely accessible under permissive terms to the entire world.</p>
<p>Focusing on this year's World IP Day theme of movies, there have been some impressive contributions the commons over the years. Nina Paley's feature animation <i><a href="">Sita Sings The Blues</a></i>, which she released into the public domain, has spread widely, inspired more work, and earned her money. The <a href="">short films from the Blender Foundation</a> have demonstrated cutting-edge computer graphics made with free software and, though they've sometimes been on <a href="">the receiving end of bogus copyright takedowns</a>, have been watched many millions of times.</p>
<h3>Kickstarting and Threshold Pledges</h3>
<p>Finally, crowdfunding platforms like Kickstarter and Indie-Go-Go have made a major splash in the last few years as another fundraising model that can complement, or even replace, [-traditional-] copyright exclusivity. These platforms build on theoretical framework laid out by scholars like John Kelsey and [-EFF board member-] Bruce Schneier in <a href="">the influential "Street Performer Protocol" paper</a>, which set out to devise an alternative funding system for public [-works.</p>-] {+domain works. But most crowdfunded works are not in the commons, indicating an need for better <a href=">coordination of street patrons</a>.</p>+}
<p>Looking at movies in particular: Kickstarter alone has <a href="">enabled hundreds of millions of dollars of pledges</a>, hundreds of theatrical releases, and seven Oscar-nominated films (including <i>Inocente</i>, winner of the Best Documentary Short category). [-Along with other-] {+Blender Foundation is currently+} crowdfunding [-sites, it has allowed the development of niche projects that might never have been possible under the traditional copyright system.&nbsp;</p>-] {+its first feature length film, <em><a href="">Gooseberry</a></em>.</p>+}
[-<p>As the Constitution tells us,-]
{+<p>The conceit of+} copyright and other "intellectual property" systems [-can, when-] {+is that they can be+} calibrated [-correctly,-] {+to+} promote the progress of science and the useful arts. [-We continue to work pushing for a balanced law that would better achieve that end.</p>-]
[-<p>But it's also-] {+But the reality of these systems is corruption and rent seeking, not calibration. The cost is not just less creativity and innovation, but less freedom and <a href="">equality</a>.</p>+}
{+<p>It's+} clear from [-these-] real world examples that other systems can achieve [-that-] {+the+} goal [-as well. Promoting-] {+of promoting+} creativity, progress, and [-innovation is an incredibly valuable mission—it's good to know that it doesn't have-] {+innovation. We must continue+} to [-come through systems-] {+push for both practice and <a href="">policy+} that [-can-] {+favors these systems</a>, ultimately rendering "intellectual property" a baffling anachronism. In a good future, a policy-oriented celebration of creativity and innovaion would+} be [-abused to stifle valuable speech.</p>-] {+called World Intellectual Freedom Day.</p>+}

Patent reform, parts deficient in commons

Mike Linksvayer, April 19, 2014 06:20 AM   License: CC0 1.0 Universal

A Five Part Plan for Patent Reform (pdf) by Charles Duan, Director of Patent Reform at Public Knowledge, is simultaneously good and deficient:

  1. Notes theoretical and observed problems with monopoly incentive story underlying patents, mixed empirical results, regulatory cause of strong positive results in one field (pharma), layers of abuse surrounding core in implementation, the existence of many non-monopoly incentives for innovation, conflicts between these and patents … and yet fundamentally accepts the noble origin role of monopoly incentives in protecting apple pie and correlation with some inventions — nevermind causality or counterfactual. Compare text “certainly many inventions through history, such as the light bulb, the airplane, and the photocopier, were invented by small inventors and protected by patents” and its citation (footnote 7, The Myth of the Sole Inventor)!
  2. Discusses commons (Open Innovation Communities) as evidence, and substantially better than typical writing doing so, as at least a concept of pro-commons reform is included: “One task for patent reform, then, is to consider adjustments to the patent system that better accommodate these alternate incentives for innovation. The goal of such adjustments is to better encourage these inventors incentivized by factors other than patents, and to ensure that patents do not stand in the way of those inventors.” As usual, commons regimes carved out of property defaults are mentioned (specifically GPL and DPL), but not as prototypes for default policy. Also, “it is important for these decisionmakers to reach out to inventing communities, even those that do not file for patents, and it is important for those communities to reach out to the Patent Office and other decisionmakers.” I think this also holds for “IP scholars” (which of course ought re-imagine themselves as commons scholars) and OIC participants/commoners — let’s talk about what concrete reforms would favor actually existing commons, and put those on the scholarly and policy agendas. A recent idea directly concerning patents that ought start down that long road, but many pertinent reforms may be indirect, favoring commons in other ways so as to change the knowledge economy which eventually determines what interests dominate.
  3. Innovation is assumed the top goal of policy, tempered only by conflict among incentives to innovate, and need to rein in unscrupulous behavior. No mention of freedom and almost none of equality (Joseph Stiglitz is quoted: “The alternative of awarding prizes would be more efficient and more equitable”), let alone as goals which trump innovation.

These three good/deficient pairs are endemic in intellectual property-focused discourse, e.g., see my recent reviews of IP in a World Without Scarcity and Copyright and Inequality — one of the reasons the latter is so great is that places equality firmly on the agenda.

A few other notes on A Five Part Plan for Patent Reform:

  • It’s not a plan, rather an exploration of “five key areas in which the patent system is ripe for reform.” The word plan doesn’t even appear in the text. Well worth reading, but don’t expect to find an actionable plan with five parts.
  • Notes that patent trolls existed in the 1800s (individual farmers were bullied to pay royalties for farm implements covered by patents), which is good (too often current discourse assumes intellectual property worked just fine until recently, with conflict caused by changing technology rather than by power and rent seeking), but then: “Analogously, as discussed above, farm technology was widely used in the nineteenth century, and patents on farm technology were hotly contested. Patents on those farm tools were effectively abolished. But that fix to the patent system did not prevent the software patent problems faced today—it ultimately was a Band-Aid rather than a cure. The same would be true of eliminating software patents. The fundamental issue is that the technologies of tomorrow are unknown, so targeting patent reform to one specific field of technology means that the same problems will only arise again in a different technological sector.” Sure, only abolishing all patents is sufficient, but this analogy seriously undersells the benefit of abolishing software patents: agriculture then was in relative decline of importance in the face of industrialization. Now, software is ascendant, and any technology of tomorrow that matters will involve software.
  • Focuses on FRAND (fair, reasonable and non-discriminatory) licensing for standards. But RF (royalty free) licensing is required for any standard in which commons-based projects are first class participants (e.g., free/open source software and codec patents). No doubt unscrupulous behavior around FRAND and standards is a problem, but the solution is RF for standards.
  • From the Public Knowledge site, reading the paper requires first supplying an email address to a third party (gumroad). Annoying, but on par with PK’s newsletter practices (one of the many favoring tracking users at cost of usefulness to users). Better, the paper is released under CC-BY-SA, so I uploaded a copy to the Internet Archive. Best, Duan has published the paper’s LaTeX source.

How different would the net be without Firefox?

Mike Linksvayer, April 06, 2014 09:23 PM   License: CC0 1.0 Universal

David Flanagan, latest making claim I’ve read many times:

Without Mozilla, there would have been no Firefox, and the internet would be very different today.

Mitchell Baker in only a few more words included a combined mechanism and outcome:

We moved the desktop and browsing environments to a much more open place, with far more options and control available to individuals.

Baker further explained Mozilla aims to make an analogous difference in the computing environment of today and the future:

Today we live in a different online era. This era combines desktop, mobile devices, cloud services, big data and a social layer. It is feature-rich, highly centralized, and focused on a few giant organizations that exert control over almost all aspects of the experience. Today’s computing environment is deeply in need of an open, exciting alternative that shows what the Open Web brings to this setting — something built on parts including Firefox OS, WebGL, asm.js, and the many other innovations being developed at Mozilla. It is comparable to the desktop computing environment we set out to revolutionize when we started Mozilla.

Mozilla needs to bring a similar scope of change to the new computing era. Once again, Mozilla needs to break down the walled gardens of online life and bring openness and opportunity to all. Once again, we have the chance to build products and communities in a way that no one else will.

(Baker’s post announced Brendan Eich as CEO, Flanagan lays out some information following Eich’s resignation. That crisis presumably changed nothing about evaluations of Mozilla’s previous impact, nor its plans for analogous future impact. The crisis just provided an opportunity for many to repeat such evaluations and plans. This post is my idiosyncratic exploitation of the opportunity.)

Those are important claims and plans, and I tend to strongly agree with them. My logic, in brief:

  • there’s a lot of scope for the net (and society at large) to be substantially more or less “open” than it is or might be due to relatively small knowledge policy and knowledge economy changes;
  • there’s a lot of scope for commons-based projects to push the knowledge economy (and largely as an effect, knowledge policy) in the direction of “open”;
  • due to network effects and economies of scale, huge commons-based projects are needed to realize this potential for pushing society in an “open” direction;
  • Mozilla is one of a small number of such huge commons-based projects, and its main products have and will be in positions with lots of leverage.

Independent of my logic (which of course I doubt and welcome criticism of) for agreeing with them, I think claims about Mozilla’s past and potential future impact are important enough to be criticized and refined rather than suffering the unremitting bludgeoning of obscurity or triviality.

How could one begin to evaluate how much and what sort of difference Mozilla, primarily through Firefox, has made? Some things to look at:

  • other free/open source software browser projects;
  • competition among proprietary browsers;
  • differences between Firefox and proprietary browsers in developing and implementing web standards;
  • all aspects of Mozilla performance vs. comparable (Mozilla is different in many respects, but surely amenable to many tools of organizational evaluation and comparison) organizations;
  • 2nd order effects of a superior (for a period, and competitive otherwise) free/open source browser, e.g., viability of free desktop (though never achieving significant market share, must be responsible for huge increases in consumer surplus due through constraint on proprietary pricing and behavior) and inspiration for other open source projects, demonstration of feasibility of commons-based competition in mass market.

It’s possible that such questions are inadequate for characterizing the impact of Mozilla, but surely they would help inform such characterization. If those are the wrong questions, or the wrong sort of questions, what are the right ones? Has anyone, in any field, taken evaluation of Mozilla’s differential impact beyond the Baker quote above? I’d love to read about how the net would have been different without Firefox, and how we might expect the success or failure of new Mozilla initiatives to produce different worlds.

These kinds of questions are also important (or at a minimum, interesting to me) for other commons-based initiatives, e.g., Wikimedia and Creative Commons.

A plan for a plan to accelerate clarity on “NonCommercial” by 100%

Mike Linksvayer, April 01, 2014 08:39 PM   License: CC0 1.0 Universal

After 11+ years, 4 major license suite versions, focused research, and movement education campaigns, Creative Commons achieved a quantum increase in the clarity of the definition of NonCommercial as used in some of (CC-BY-ND does not) its semicommons licenses:

not primarily intended for or directed towards commercial advantage or private monetary compensation.

In the next 11+ years, Creative Commons can improve this performance by precisely 100% — remove two more words from the definition. Nobody knows which words yet: discovery will take years of versioning, research, outreach, collaboration with NonCommercial definition reusers, and perhaps a party. The result, even if not intended to change the substantive meaning of the definition, will bring an unprecedented level of clarity to NonCommercial. We can only look forward to but not yet imagine the next one.

Hazard Records 015

Mike Linksvayer, March 25, 2014 07:15 AM   License: CC0 1.0 Universal

Hazard Records 002 cover with no copyright notice

Barcelona-based avant/improv/appropriation/noise CD-R and now netlabel Hazard Records celebrates its 15th anniversary today (March 25). All of their releases are dedicated to the public domain (recent ones using CC0; for the trivia-oriented, note their pre-CC “no rights reserved” in the cover image above). I’ve been a dedicated listener since not long after they started uploading to the Internet Archive in 2004, 76 albums as of now, with one more each of the next four weeks coming in celebration of the anniversary. My top 4 easy listening recommendations…

Anton Ignorant – S/S Magick For Abused Speakers [HR017] (meditative noise)

Breuss Arrizabalaga Quintet – Nfamoudou-Boudougou [HR038] (free jazz)

Joan Bagés i Rubí – Miscel.lània Sonora [HR053] (avant miscellany)

XMARX – Unhazardous Songs [HR060] (rock ‘n’ ‘ropriation)

Unfortunately many Hazard Records albums on the Internet Archive don’t have embedded artist/album/title metadata in the ogg/mp3/flac downloads; this being one of the main motivations behind my wishlist for that site. But nobody downloads anymore and the Internet Archive has a passable (for now, if you’re not totally expecting uninterrupted play across pages that newer sites support) embedded player, used in this post and on the site. Listen, enjoy, and share…links.

Bonus recommendation:

Musica Veneno – Whole Lotta Love Story [HR015] (intra-label appropriation)

Happy 15 Hazardous years! I’m looking forward to the next 80 records.

Surgical Strike – A Glitch And A Result

Rob Myers, March 24, 2014 10:10 PM   License: Attribution-ShareAlike 4.0 International


Rotation Fail

F-117 Nighthawk Model by TheVNPrinter (CC-BY-SA).

Infografik: Creative Commons in Zahlen

Markus Beckedahl, March 24, 2014 03:54 PM   License: Namensnennung-Nicht-kommerziell-Weitergabe unter gleichen Bedingungen 2.0 Deutschland

Für D64 haben die DesignerInnen Sara Lucena und Nico Roicke einige Zahlen zu Creative Commons gesammelt und in eine riesige Infografik (JPG / PDF) gepackt. Sie kommen dabei grob auf 400 Millionen CC-lizenzierte Inhalte.

Klarerweise sind nicht für alle Bereiche aktuelle oder ganz genau Zahlen verfügbar, zur groben Orientierung taugen sie aber allemal. Vor allem aber wollen wir mit der Grafik auch zeigen, wo es im Netz die meisten Creative-Commons-Inhalte gibt und so zur Verbreitung von Creative Commons beitragen.

Und das ist die Infografik:


Empathy for the Gooseberry

Mike Linksvayer, March 24, 2014 03:09 AM   License: CC0 1.0 Universal

You’ve almost certainly seen at least snippets of the Blender Foundation’s four short animated films Elephants Dream (2006), Big Buck Bunny (2008), Sintel (2010) and Tears of Steel (2012; my blog post riffing on a memorable scene) — because they’re high quality and freely licensed for any use (CC-BY) they’re frequently used in demos.

Now Blender Foundation (who primarily make the free software Blender 3D modeling, animation, video editing, and more program; they use open movie projects to push the software forward) is working on a feature-length animated film, Gooseberry, which would mark a new milestone (Sita Sings the Blues will surely remain the best feature length free film of any sort, but was made with non-free software and is 2D).

They have an ambitious crowdfunding goal of €500,000 to support the project. I pledged and hope you’ll join me. A few interesting bits from the campaign FAQ:

What quality can we expect? Like, compared to Sintel, or a Pixar movie?

As magic number for budget calculations, I use the “Months of work per minute of film”. This is including writing, coders, art, production.

For Big Buck Bunny that was 6. For Sintel it was 10. For Gooseberry we daringly want to go to 15 even. For a Disney or Pixar film, this number is easily 300 to 500. Go figure! But our film will be better than Sintel or BBB for sure.

What is this “exploitation window”

Even though everything will be free/open source, we will reserve for the final movie (renders, final edit, grade) a short period of exploitation. That ‘window’ is 3 months, starting at the official premiere (our own, or on film festival). Film distributors can pay us for the exclusive rights to show the film in theaters during that period. Or TV stations, or Netflix! After that, all gates go open and we release it as CC-BY for everyone.

I can’t complain about the non-free “exploitation window”, as there’s zero infrastructure for marketing and distributing free-as-in-freedom films; in the short term, the window might get the film to a wider audience and thus build its cultural relevance and value as a free film after the window. The existence of free and culturally relevant films will be a huge help to any eventual such marketing and distribution infrastructure, so best of luck to the Gooseberry team in all respects.

There’s another short made with Blender in progress called Wires For Empathy:

A 3D animated short film based in free/libre software, Tube is also a new experiment in distributed collaboration. It plays on the ancient Gilgamesh poem, in a variant of the hero’s progress that becomes the animation’s own frames.

The trailer looks great:

Sympathy for the Strawberry is not one of my favorite Sonic Youth tracks, but the above titles made me think of it. I would heavily contribute to a crowdfunded free-as-in-freedom album by a reunited band sans Thurston Moore, call it Free Sonic Youth. Which part (free or Thurston-free) is most unlikely?

Stealth Ring

Rob Myers, March 22, 2014 07:33 AM   License: Attribution-ShareAlike 4.0 International

An old Surgical Strike program reworked for the new system:

Ring 1 Ring 2


codeword blim
  roll 0 36 0
  manouver 0 36 0

// Main orders

load "F-117.stl"
camouflage "MacOS.png"
//roll 0 180 0
manouver 1 0 0
blim 10

Hack Circus

Rob Myers, March 20, 2014 11:02 PM   License: Attribution-ShareAlike 4.0 International

Hack Circus

Run, don’t walk, to get a subscription to the new quarterly art/technology/weirdness journal Hack Circus. It’s like the Fortean Times as published by Make Magazine, or Mondo 2000 by Strange Attractor Journal. Issue 2 is just out and contains articles on the nature of reality, choreography as code & vice versa, and personality mimicking bots on Twitter amongst other things. I can’t recommend it highly enough.

Proof Of Existence 2

Rob Myers, March 20, 2014 01:09 AM   License: Attribution-ShareAlike 4.0 International


I have placed the hash of “God” into the Bitcoin Blockchain:

SHA256: ebc3e2e6448f94af7b58e57658336a44d3ff44eafadb54e4c4cd71ba7e607594

Address: 163NUfEg61eJeNiQ9SyN6EDT1ynkzDL2ar

This proves that God exists.

Urteil des LG Köln zu Creative Commons im öffentlich-rechtlichen Rundfunk

Markus Beckedahl, March 19, 2014 09:04 PM   License: Namensnennung-Nicht-kommerziell-Weitergabe unter gleichen Bedingungen 2.0 Deutschland

Das Creative-Commons-Lizenzmodul “NonCommercial” (NC) ist sowohl das umstrittenste als auch das meistgenutzte der drei optionalen Lizenzmodule von Creative Commons (siehe Abbildung 1 mit Daten aus einer von Creative Common selbst beauftragten Nutzungsstudie). Umstritten ist das Modul vor allem deshalb, weil es mit anders lizenzierten Inhalten (z.B. aus der Wikipedia) inkompatibel ist und weil es viele Nutzungsszenarien gibt, in denen die Abgrenzung zwischen kommerzieller und nicht-kommerzieller Nutzung schwierig ist (als Einstieg zum Thema NC-Lizenzen empfiehlt sich ein Blick in die Broschüre von und Wikimedia „Folgen, Risiken und Nebenwirkungen der Bedingung ‚nicht-kommerziell – NC’“; für Details siehe auch einen Aufsatz von Jakob Kapeller und mir zum Thema).

Nutzung des NC-Lizenzbausteins im Vergleich mit anderen Lizenzierungsformen (n=1484; Aktive Lizenzanwender, die bereits eigene Werke lizenziert haben; Mehrfachnennungen möglich; aus: Dobusch/Kapeller 2012)

Abbildung 1: Nutzung des NC-Lizenzbausteins im Vergleich mit anderen Lizenzierungsformen (n=1484; aktive Lizenzanwender, die bereits eigene Werke lizenziert haben; Mehrfachnennungen möglich; aus: Dobusch/Kapeller 2012)

Ein Beispiel für einen Grenzfall ist die Nutzung von NC-lizenzierten Inhalten durch öffentliche Rundfunkanstalten und seit kurzem gibt es auch in Deutschland ein Urteil zu diesem Thema. Das LG Köln, das gerade erst mit einer Entscheidung zur Kennzeichnung von Pixelio-Bildern für viel Aufregung gesorgt hat, behandelt in seinem Urteil 28 O 232/13 (PDF) das öffentlich-rechtliche Deutschlandradio als einen kommerziellen Nutzer. Konkret ging es um die Nutzung eines Fotos, das von dem Fotografen unter einer NC-Lizenz auf Flickr veröffentlicht und auf der Webseite des Deutschlandradios unter Verweis auf den Rechteinhaber und die CC-Lizenz verwendet worden war. Leider geht aus dem Urteil nicht hervor, um welche Lizenz es sich genau gehandelt hat; im Text ist von “Creative Commons Legal Code AttributionNonCommercial 2.0″ die Rede, was auf die internationale (“generic”) Version hindeutet.

In seiner Begründung setzt sich das LG Köln allerdings gar nicht mit der Definition der NC-Klausel in der Lizenz auseinander. Stattdessen heißt es dort lapidar:

Der Begriff der kommerziellen Nutzung ist in der Lizenzvereinbarung selbst nicht definiert.

Das trifft meiner Meinung nach nicht zu. Im englischen Lizenztext steht unter Punkt 4b:

You may not exercise any of the rights granted to You in Section 3 above in any manner that is primarily intended for or directed toward commercial advantage or private monetary compensation.

In der deutschen Version heißt es dort:

Sie dürfen die in Ziffer 3 gewährten Nutzungsrechte in keiner Weise verwenden, die hauptsächlich auf einen geschäftlichen Vorteil oder eine vertraglich geschuldete geldwerte Vergütung abzielt oder darauf gerichtet ist.

In beiden Fällen handelt es sich zwar um allgemeine, aber dennoch Definitionen von kommerzieller Nutzung. Warum sich das LG Köln mit dieser Definition in keinster Weise auseinandersetzt, ist mir schleierhaft. Stattdessen ergeht sich das Urteil sofort in ausführlicher Gesetzesexegese und stützt sich im Wesentlichen auf “die Zweckübertragungslehre nach § 31 Abs. 5 UrhG sowie die allgemeinen Auslegungsregeln der §§ 133, 157 BGB” (S. 8).

Konkret argumentiert das LG Köln, dass “im Zweifel keine weitergehenden Rechte eingeräumt werden als dies der Zweck des Nutzungsvertrages erfordert” (S. 9) sowie dass im Zweifelsfall die Rechte beim Urheber verbleiben (S. 10). Der zentrale Absatz ist leider sprachlich offensichtlich fehlerhaft und definiert “nicht kommerzielle Nutzung” einfach in “private Nutzung” um:

Ausgehend im Sinne der Lizenzbedingungen diesen Grundsätzen ist hier von einer kommerziellen Nutzung der Beklagten auszugehen. Nach dem objektiven Erklärungswert ist unter der Bezeichnung “nicht kommerzielle Nutzung” eine rein private Nutzung zu verstehen.

Zu so einem Schluss kann man meiner Meinung nach nur kommen, wenn man die Definition von kommerzieller Nutzung im Lizenztext einfach ignoriert. Schon eher überzeugend ist hingegen das Argument, das den konkreten Nutzungskontext im Fall des Deutschlandradios mit jenem von privaten Radioanstalten vergleicht:

Für einen privaten Radiosender ist es üblich, für die Nutzung eines Lichtbildwerkes eine entsprechende Vergütung zu zahlen. Für eine Differenzierung der Nutzungseinräumung zwischen privaten und öffentlichen Radiosendern besteht kein Anlass. (S. 11)

So heißt es beispielsweise auch in den Creative-Commons-FAQ zum NC-Lizenzmodul, dass es nicht so sehr auf die Art des Nutzers sondern vielmehr auf die konkrete Nutzungssituation ankommt:

Please note that CC’s definition does not turn on the type of user: if you are a nonprofit or charitable organization, your use of an NC-licensed work could still run afoul of the NC restriction, and if you are a for-profit entity, your use of an NC-licensed work does not necessarily mean you have violated the term. Whether a use is commercial will depend on the specifics of the situation and the intentions of the user.

Fazit: Wäre die Nutzung durch eine Produktionsfirma im Auftrag des öffentlich-rechtlichen Rundfunks erfolgt, der Sachverhalt wäre klar gewesen: die Firma hätte das Werk in einer Weise verwendet, die hauptsächlich auf einen geschäftlichen Vorteil gerichtet ist. Da die Nutzung aber unmittelbar durch den öffentlich-rechtlichen Rundfunk erfolgt ist und der qua Gesetz keine Gewinnerzielungsabsicht verfolgt, ist es nicht so eindeutig, ob hier tatsächlich eine kommerzielle Nutzung im Sinne der Lizenzbedingungen vorliegt. Denn laut der Definition im Lizenztext kann die Gewinnerzielungsabsicht in der konkreten Nutzungshandlung einen Unterschied machen. Leider hat sich das LG Köln aber in seinem Urteil nicht mit der konkreten Definition auseinandergesetzt, weshalb das letzte Wort in dieser Angelegenheit wohl auch mit dem vorliegenden Urteil noch nicht gesprochen ist.

Free Bassel & Open Borders Days

Mike Linksvayer, March 16, 2014 01:04 AM   License: CC0 1.0 Universal

March 15, another year of Bassel Khartibil‘s life as a political prisoner in Syria. Some friends put together a cookbook (pdf) with meals they’d like to share with him when he is free.

Macabre image for a macabre situation.

March 16 is Open Borders Day. Bassel apparently returned to Syria voluntarily. There are millions who have little chance of leaving dictatorships, war zones, and grinding poverty — not because they are imprisoned by the local regime, but because we allow the international apartheid system to stand.

Recent Media Coverage

Rob Myers, March 15, 2014 07:19 PM   License: Attribution-ShareAlike 4.0 International


Hyperallergic featured Tom Burtonwood’s remixes of Urinal in their interview with them. I do need to work out how BY-SA applies here.


Rhizome featured Facecoin in an article on digital currencies and art. They also mentioned “_MON3Y AS AN 3RRROR | MON3Y.US” and “Computers and Capital“, which are the last two shows I’ve reviewed for Furtherfield.


And the Tate gallery featured Exploring Tate Art Open Data 2 in a survey of artistic responses to their collection dataset release.

Open Educational Resources Expand Access to Higher Education in the United States

Michael Carroll, March 14, 2014 04:01 PM   License: Attribution 2.5 Generic

Leaders in the Obama Administration, in state governments, and in corporate America have acknowledged the urgency of increasing access to higher education in the United States - particularly through community colleges.  These leaders also recognize the importance of improving completion rates and educational outcomes for those who enroll.

 As we come to the close of Open Education Week, it is now time for these leaders to focus attention, energy and resources on the most immediate opportunity to make progress toward these goals while also freeing up billions of dollars that can be redirected toward this progress.  Make textbooks available to students for free or at very low marginal cost.

The Open Textbook Opportunity - Tidewater Community College Case Study

Sound too good to be true?  It's not, and the forward-looking folks at Tidewater Community College are leading the way.  Students at Tidewater can now save 30% of the cost of a two-year Associate' Degree of Science in Business Administration because all of the textbooks are published under a Creative Commons Attribution license which gives anyone - students and the school - the rights to freely make copies and adapt these works as long as proper attribution to the author(s) is maintained.

According to Linda Williams at Tidewater, open textbooks have not just been a cost savings but also have improved the quality of the educational experience and have opened up improvements in students' quality of life.

In one case a student - a veteran - was routinely unable to afford his textbooks until weeks into the semester.  When he enrolled in a Pre-Calculus class for which he could freely download the openly-licensed textbook, it was the first time he'd ever started a class with the required materials in hand.

In another case, a single mother who enrolled in the Business Administration degree program was able to use her savings on textbooks to buy braces for her daughter - an expense she could not have managed without these cost savings.

Why Open Textbooks Now?

Of all of the challenges facing access to education and improved educational outcomes, the problems of textbook affordability, usability, and adaptability are the key barriers that can be readily overcome. The Tidewater case should not be an exception - let's make it the norm.  Educational materials are moving from print to digital, but currently they are still expensive, subject to extensive restrictive copyright licensing terms, and reside behind a password-protected paywall.  To adapt the famous lines from President Reagan, leaders, use smart policies that promote open educational resources to tear down this wall!

 By shifting to high quality OER, educational institutions at both the K-12 and tertiary levels can redirect billions of dollars into improved access and outcomes that currently flow into a textbook production system that is highly inefficient, a system that transfers significant wealth out of the educational sector and into the pockets of shareholders in a handful of publishing firms without corresponding benefits.

To be clear, there are historical reasons for this that predate the Internet.  The Internet is the game-changer, and while these firms currently are part of the problem, they also have the opportunity to become part of the solution.

How? By embracing the production of Open Educational Resources.  These aren't free to produce or update, but production, adaptation, and quality control can all be done far more efficiently and at significantly lower cost than is currently the case. Just ask the folks at OpenStax College who are publishing top-notch textbooks that are free to download and are available in print for about $30.

Who Will Offer the Next Degree Program Built on Open Educational Resources?

With the pool of high quality, openly licensed textbooks and other educational resources growing every day, what traditional brick-and-mortar educational institution will be next to follow Tidewater's lead and start using OER to promise students from the beginning that the cost of their textbooks will be free, at very low cost, or covered by the cost of tuition?

More Surgical Strike

Rob Myers, March 11, 2014 06:38 AM   License: Attribution-ShareAlike 4.0 International


I’ve fixed more of the outstanding issues in Surgical Strike. And I’ve make an Emacs mode for editing .strike files and executing them.


I’ve also documented the language and taken this opportunity to change a feature of the language that I was never happy with, although I haven’t updated the code examples to reflect this yet.

Gov[ernance]Lab impressions

Mike Linksvayer, March 08, 2014 07:22 AM   License: CC0 1.0 Universal

First, two excerpts of my previous posts to explain my rationale for this one. 10 months ago:

I wonder the extent to which reform of any institution, dominant or otherwise, away from capture and enclosure, toward the benefit and participation of all its constituents, might be characterized as commoning?

Whatever the scope of commoning, we don’t know how to do it very well. How to provision and govern resources, even knowledge, without exclusivity and control, can boggle the mind. I suspect there is tremendous room to increase the freedom and equality of all humans through learning-by-doing (and researching) more activities in a commons-orientated way. One might say our lack of knowledge about the commons is a tragedy.


Other than envious destruction of power (the relevant definition and causes of which being tenuous, making effective action much harder) and gradual construction of alternatives, how can one be a democrat? I suspect more accurate information and more randomness are important — I’ll sometimes express this very specifically as enthusiasm for futarchy and sortition — but I’m also interested in whatever small increases in accurate information and randomness might be feasible, at every scale and granularity — global governance to small organizations, event probabilities to empirically validated practices.

I read about the Governance Lab @ NYU (GovLab) in a forward of a press release:

Combining empirical research with real-world experiments, the Research Network will study what happens when governments and institutions open themselves to diverse participation, pursue collaborative problem-solving, and seek input and expertise from a range of people.

That sounded interesting, perhaps not deceivingly — as I browsed the site, open tabs accumulated. Notes on some of those follow.

GovLab’s hypothesis:

When institutions open themselves to diverse participation and collaborative problem solving, they become more effective and the decisions they make are more legitimate.

I like this coupling of effectiveness and legitimacy. Another way of saying politics isn’t about policy is that governance isn’t about effectiveness, but about legitimizing power. I used to scoff at the concept of legitimacy, and my mind still boggles at arrangements passing as “legitimate” that enable mass murder, torture, and incarceration. But our arrangements are incredibly path dependent and hard to improve; now I try to charitably consider legitimacy a very useful shorthand for arrangements that have some widely understood and accepted level of effectiveness. Somewhat less charitably: at least they’ve survived, and one can do a lot worse than copying survivors. Arrangements based on open and diverse participation and collaborative problem solving are hard to legitimate: not only do they undermine what legitimacy is often really about, it is hard to see how they can work in theory or practice, relative to hierarchical command and control. Explicitly tackling effectiveness and legitimacy separately and together might be more useful than assuming one implies the other, or ignoring one of them. Refutation of the hypothesis would also be useful: many people could refocus on increasing the effectiveness and legitimacy of hierarchical, closed systems.

If We Only Knew:

What are the essential questions that if answered could help accelerate the transformation of how we solve public problems and provide for public goods?

The list of questions isn’t that impressive, but not bad either. The idea that such a list should be articulated is great. Every project ought maintain such a list of essential questions pertinent to the project’s ends!

Proposal 13 for ICANN: Provide an Adjudication Function by Establishing “Citizen” Juries (emphasis in original):

As one means to enhance accountability – through greater engagement with the global public during decision-making and through increased oversight of ICANN officials after the fact – ICANN could pilot the use of randomly assigned small public groups of individuals to whom staff and volunteer officials would be required to report over a given time period (i.e. “citizen” juries). The Panel proposes citizen juries rather than a court system, namely because these juries are lightweight, highly democratic and require limited bureaucracy. It is not to the exclusion of other proposals for adjudicatory mechanisms.

Anyone interested in random selection and juries has to be at least a little interesting, and on the right track. Or so I’ve thought since hearing about the idea of science courts and whatever my first encounter with sortition advocacy was (forgotten, but see most recent), both long ago.

Quote in a quote:

“The largest factor in predicting group intelligence was the equality of conversational turn-taking.”

What does that say about:

  • Mailing lists and similar fora used by projects and organizations, often dominated by loudmouths (to say nothing of meetings dominated by high-status talkers);
  • Mass media, including social media dominated by power law winners?

Surely it isn’t pretty for the intelligence of relevant groups. But perhaps impetus to actually implement measures often discussed when a forum gets out of control (e.g., volume or flamewars) such as automated throttling, among many other things. On the bright side, there could be lots of low hanging fruit. On the dim side, I’m surely making extrapolations (second bullet especially) unsupported by research I haven’t read!

Coordinating the Commons: Diversity & Dynamics in Open Collaborations, excerpt from a dissertation:

Learning from Wikipedia’s successes and failures can help researchers and designers understand how to support open collaborations in other domains — such as Free/Libre Open Source Software, Citizen Science, and Citizen Journalism. [...] To inquire further, I have designed a new editor peer support space, the Wikipedia Teahouse, based on the findings from my empirical studies. The Teahouse is a volunteer-driven project that provides a welcoming and engaging environment in which new editors can learn how to be productive members of the Wikipedia community, with the goal of increasing the number and diversity of newcomers who go on to make substantial contributions to Wikipedia.

Interesting for a few reasons:

  • I like the title, cf. commons coordination (though I was primarily thinking of inter-project/movement coordination);
  • OpenHatchy;
  • I like the further inquiry’s usefulness for research and the researched community;
  • Improving the effectiveness of mass collaboration is important, including for its policy effects.

Back to the press release:

Support for the Network from will be used to build technology platforms to solve problems more openly and to run agile, real-world, empirical experiments with institutional partners such as governments and NGOs to discover what can enhance collaboration and decision-making in the public interest.

I hope those technology platforms will be open to audit and improvement by the public, i.e., free/open source software. GovLab’s site being under an open license (CC-BY-SA) could be a small positive indicator (perhaps not rising to the level of an essential question for anyone, but I do wonder how release and use of “content” or “data” under an open license correlates with release and use of open source software, if there’s causality in either direction, and if there could be interventions that would usefully reinforce any such).

I’m glad that NGOs are a target. Seems it ought be easier to adopt and spread governance innovation among NGOs (and businesses) than among governments, if only because there’s more turnover. But I’m not impressed. I imagine this could be due, among other things, to my ignorance: perhaps over a reasonable time period non-state governance has improved more rapidly than state governance, or to non-state governance being even less about effectiveness and more about power than is state governance, or to governance being really unimportant for survival, thus a random walk.

Something related I’ll never get around to blogging separately: the 2 year old New Ambiguity of ‘Open Government’ (summary), concerning the danger of allowing term to denote a government that publishes data, even merely politically insensitive data around service provision, rather than politically sensitive transparency and ability to demand accountability. I agree about the danger. The authors recommend maintaining distinctions between accountability, service provision, and adaptability of data. I find these distinctions aren’t often made explicit, and perhaps they shouldn’t be: it’d be a pain. But on the activist side, I think most really are pushing for politically sensitive transparency (and some focused on data about service provision might fairly argue such is often deeply political); certainly none want open data to be a means of openwashing. For one data point, I recommend the Oakland chapter of Beyond Transparency. Finally, Stop Secret Contracts seems like a new campaign entirely oriented toward politically sensitive transparency and accountability rather than data release. I hope they get beyond petitions, but I signed.

Surgical Strike Update

Rob Myers, March 07, 2014 06:50 AM   License: Attribution-ShareAlike 4.0 International

I’ve updated the 2008 remake of my 1996 artistic programming language “Surgical Strike” to compile on modern versions of GNU/Linux.

It makes things like this from stealth bombers and old computer company logos:


codeword blim
    manouver 0 18 0
    roll 0 18 0
// Main orders

load "f-117.dxf"
camouflage "MacOS.png"
roll 0 90 0
manouver 0.1 0 0
blim 22