An Austrian court issued an interesting judgment this week. A leftist film collective, Filmpiraten, took a court case against the far-right Freedom Party of Austia (FPÖ) for copyright-infringing reuse of material published on youtube under a creative commons license. The video at issue documented antifascist protests against the Viennese Akademikerball, an annual event held by the FPÖ which has been the target of demonstrators for many years.
Filmpiraten publish their work on the website and on youtube under a BY-NC-SA license. this means that others are free to use the material without permission providing the use is non-commercial, the work is attributed to them, and that whatever work is created downstream using it is distributed under the same licensing conditions.
The FPÖ operate their own youtube channel which includes a program called FPÖ-TV, published as work in which copyright is claimed. The court case thus concerned a violation of Creative Commons licensing terms under which the Filmpiraten had made their work available. Where a would-be user of material available under a CC license does not accept the licensing conditions, they must make a licensing agreement with the copyright holder in the usual way. Unless they are using it on the basis of one of the statutory exceptions (criticism, commentary etc).
In any case the Filmpiraten were successful in the Viennese court, so this is a significant decision for anyone interest in the treatment of CC licenses in the courts. The FPÖ will appeal. The newspaper report from Der Standard is available here (German).
Dmytri Kleiner gave a presentation as part of oil21.org in its new premises the Wiederaufbau für Kreditanstalt, titled “Copyfarleft & Copyjustright – the critique of Creative Commons”. Those interested in such critiques may be interested in a short piece I wrote in 2004, as well as a much more substantial and articulate essay written by my friend Mako Hill, Towards a Standard of Freedom: Creative Commons and the Free Software Movement.
The substance of Dmytri’s argument is that whilst copyleft licenses such as the GPL are about users’ rights, Creative Commons (CC) is about producers’ rights and is not concerned with building a commons in the traditional sense – where it functions as an economic resource – at all. Instead Kleiner sees CC as an operation whose objective is to muffle the conflictuality expressed through the various expressions of anti-copyright culture which were incubated in the 80s but were massively bolstered by the emergence of the online environment and the opportunity it offered to move from critiquing the theory of copyright to a rejection of its control.
Whilst agreeing with much of the substance of the criticism of CC, I shy away endorsing what seems like a pretty tidy theory whereby CC was instrumentally created to quell the rising tide of anti-copyright. For example I’d argue that as soon as it became clear that the gate-keeping role of distributors of cultural works was in crisis, it became obvious to many people that there was an opportunity for many other cultural producers to get a part of the limelight, and that this would necessarily take place on terms which were different to those traditionally imposed by the cultural industries. Standard copyright provisions in this sense represent the inherited form of industrial regulation, designed by and for those with a stake in the old organization of cultural production. Lawyers of course wondered how they might manufacture themselves a role as advisers on rights issues, and offering an a la carte menu specifying permissions and reserved rights was an obvious way to do it. I know this because the idea occurred to me, too. So something like CC was always going to be born, it is a child of its time, a zeitgeist.
There is also a more historically specific and contingent aspect to all this. CC is Larry Lessig’s project to a significant extent, and has been the locomotive of his own views which are wide-ranging and not limited to the field of copyright. Co-founder James Boyle, for example, appears puzzlingly AWOL when it comes to ideologically contextualizing CC. CC came into the world after Larry’s defeat in the Eldred case and many years spent pushing a narrowly legalistic agenda, whose objective had been to persuade nine supreme court judges to adopt a conservative scheme of interpretation to overturn the legislature’s capitulation to Hollywood lobbying embodied in amongst other laws the Sonny Bono Copyright Term extension Act. By 2000, failure in court had called time on this strategy and it was time for a new one. Lessig confessed his errors in Free Culture and moved on: CC was the result. In addition 1999 had seen the explosion of p2p onto the landscape of legal conflict, and it was clear that somewhere down the road there would be a challenge to these technologies under one or another theory of secondary liability for copyright infringement. In such a situation it would be necessary to demonstrate that these technologies had substantial non-infringing uses. The last time a major case was fought on this issue involved the video cassette recorder in Sony v Betamax, where the fact that there existed some producers of broadcast television materials which did not object to copying, and some uses – “time-shifting” materials for later viewing – considered legitimate, cumulatively brought the technology within a space where it was allowed to exist even if it could be used for purposes infringement.
Millions of people are today using CC licenses that permit the reproduction of their ‘content’, such that any means of digital communication can have a significant non-infringing use. If one is searching for an instrumental explanation for the establishmnet of CC, I think this is it. And it has been successful, at least to the extent that when the Grokster et al. went down in the Supreme Court, they went down on the basis of a completely different theory than that used in Sony, a precedent most of the judges simply skirted around.
Ok, I started with the intention of writing about another aspect of Dmytri’s talk but got distracted. Tomorrow, I’ll be writing about the proposal for an anarchist GEMA (the German collective rights organization similar to ASCAP).
Late night discussion in Oslo turned to copyright enforcement in Italy, specifically the practices of the Societa Italiana degli Autori ed Editori (SIAE), a collective rights organisation. All CDs, Books, Software and DVDs must be registered and carry a small stamp sold by the SIAE at about 3 cents a pop. All live performances of music must make contact with the SIAE and provide a list of songs played and pay an appropriate license. I was amazed to hear that the Perugia office alone apparently employs six people, and that they systematically catalogue all posters on the city streets in their search.
Today the Slovenian Advocate General to the European Court of Justice, Verica Trstenja, issued an opinion on an interesting case challenging the SIAE’s practice. A german national Scwibbert, resident in Italy was the subject of a criminal prosecution for failing to have a SIAE stamps for CDs containing paintings by, amongst others, Giorgio De Chirico. His alleged offense is only the failure to afix the labels; he was in possession of the necessary rights and thus there is no claim of copyright infringement.
The Italian technical regulation was challenged as being a ‘measure with equivalent effect’ to a barrier to the freedom of movement of goods, and in breach of the requirements set out in Directive 98/34 on the ‘provision of information in the field of technical standards and regulation.’ Italian law required the stamps to be used with books prior to 1998 but later extended the scheme to cover other objects. The AG’s position is that the expansion required notification to the EU, and this not having been done, the trial judge in Forli should have refused to apply the provisions. Opinions of the Advocate general are not binding and are intended to guide the Judges of the ECJ, so this story may not have ended yet.
In editing studios people often quiz me as to the whther they can use elements of such and such a film, and it’s becoming rather depressing not being able to give them a straight answer. Let’s take something apparently simple first: public domain works. Unfortunately there are quite a few movies cruising the internet under a Creative Commons PD licence which, well, are in the public domain at all…. This is what happens when you have an infinite number of jurisdictions and rules in continual change. Take Russia. There extended their copyright duration in 2004 from 50 to seventy year after the death of the author. Now Dziga Vertov died in 1954, so without the change, “Man With a Movie Camera” would certainly have entered the public domain in 2005. But maybe it’s public domain elsewhere, but filmmakers who want to distribute their works over the net need to theoretically be clean everywhere.
These divergence are an order of magnitude worse when it comes to fair use/fair dealing.
Then there’s the question of protection for sound recordings. Prior to 1972 they weren’t protected by federal law in the US. then you find a case like Capital Records v Naxos to tell you that in fact they are protected at least in New York by State Law! This is the stuff of hair loss – 50 more states to add to the choice-of-law soup.
Of course what happens is that on a functional level deals are done, warranties provided only for certain markets, which correspond with specific jurisdictions. But at a time when web distribution, either on demand or retail, is accelerating, it’s snubs reality. Oh well. Bandit filmmakers don’t need to worry, along with filesharers – the jurisdiction problem for business correlates, curiously, to the difficulty of cracking down on unauthorised uses where no cash is being made of the results.
As mentioned elsewhere, I haven’t missed the Fordham IIP conference for years. Oriented largely towards the intellectual property industry, both in the sense of practitioners and those industries driving up the protection rachet, the value I extract from it is in inverse relation to the sympathy that I feel with the perspectives usually expressed; I learn from listening to those whose views I oppose. Unfortunately this year my participation was curtailed due to work commitments, so I missed an essential part of the gig, namely compere High Hansen’s acidic jokes at the expense of all the nabobs present. My pal Mako suggests that this is in fact the secret elixir behind the events repeated success: the bigwigs come with sado-masochistic urges, to see/hear themselves abused by Hansen, and take pleasure in the sight of others receiving the same treatment. Perhapa this is a case for Slavoj Zizek?
At this point in the IP wars everyone has their roles well-rehearsed, so there were relatively few surprises or revelations. PhRMA representatives, media industry types etc bemoaned the fact that the oodles of extra protection they’ve received in recent years are insufficient to protect the vital work they’re carrying out from the assault by nasty pirates. Yawn. We heard from the IFPI how the three step test in the Berne/WTO convention on limitations and exceptions to copyright protection is excessively promiscuous, but they would say that, wouldn’t they.
Later there was a debate about the use of compulsory licenses on pharmaceutical products in Thailand, a current hotspot for this conflict (along with Brazil and India). The Thai government has issued CLs on second generation AIDS treatments along with another drug for treating heart disease, enabling them to make treatment accessible for their citizens at much reduced prces. Opponents to this policy have learned a thing or two over the years, so there was no vulgar ‘let them pay or let them die‘ talk. Instead the adversaries were incredibly boring and emphasised supposed procedural faux-pas committed by the new (military) government rather than arguing the policy.
Jamie Love made his usual well informed contributuon, pointing out that Italy has issued compulsory licenses on several occasions in recent years without great controversey (most recently a prostrate drug in March of this year). One deduces that it is a lot more difficult to demonize, isolate and berate an EU country following a progressive policy on these subjects than is the case with a nation in south-east Asia. Industry representatives pointed out that Thai government ministers are raising their own salaries of its own ministers whilst cutting the health budget, and this is a valid point: politicians suck and line their own pockets (universal truth) but that’s no reason to pay the extortionate prices charged by the pharamaceutical industry as a global racketeering operation.
During the next session there was an update from Victoria Espinel of the United States Trade Representative, which is not an institution I like. Their most recent sin is their annual section 301 report ( a sort of grade-card on each country’s compliance with US interpretations of international copyright standards). She was all excited because they have just been allocated a whole new office dedicated entirely to IP and Innovation. This is worrying as a text-book example of institutional behaviour: the USTR has grown on the back of an aggressive expansionist IP policy, which is now being consolidated in the institutional DNA – a seperate new office can only be understood as a reward for their contribution so far, so the message is obviously continue on the same tack…
Espinel did have one positive nugget to communicate however, which is that with the recent Democrat takeover of the House Way and Means Committee there is apparently pressue on to revisit some of the terms of recent Bilateral Trade Agreements with developing countries. Panama, Peru and Colombia have all recently signed deals with the US and it seems that many democrats regard the IP tems as having been too exacting and wish to relax some elements, which is good news.
Today we finished shooting in the San Francisco/Bay Area. Since my last report we had an intriguing conversation with archivist Rick Prelinger (and met his partner Megan Shaw Prelinger, designer of the serendipity organization of the Prelinger Library). The next day we shot a good interview with EFF attorney Fred Von Lohmann in Dolores Park near the Mission, and then continued on into the early hours of the morning with technologists Peter Eckersley, Aaron Schwartz, Raph Levien and Lisa Rein; suffice it to say that it was a wine-lubricated marathon that concluded with the hardcore falling asleep on the floor 😉 In the morning I woke up to the realization that whilst San Francisco may be sunny, it combines this with a schizophrenic coolness that goes right to the bone. That night we visited the Other Cinema, lair of the experimental and appropriationist politcial fimmaker Craig Baldwin (director of Sonic Outlaws amongst other works). His studio is a wonderland of curiosities and media ephemera, and we filmed him set amidst the piles of abondoned 16mm film that constitute the raw material for much of his media archeologies. Sunday was spent with a very thoughful Seth Schoen of DeCSS haiku fame, and intrepid investigator of media industry efforts to hardwire control into hardware. Thereafter it was further ruminations with the Eckersley.
Today was utterly mental as we packed in many missing elements: in the morning there was a visit (which I blamelessly missed) to Howard Rheingold, then it was a dash over to berkely for a cyclone speed chat with historian and agitator Iain Boal. After lunch we saw Brewster Kahle from the Internet Archive, before speeding back to Berkeley for a truncated meeting with lawyer Pamela Samuelson. Lastly, reeling with exhaustion, we returned to SF to visit Bram Cohen, inventor of Bit Torrent, in their spanking new offices in downtown.
Having overheated mentally this is not the right time to write. I would merely note that we are thinking a lot about the license under which the film will be released, and what we should do with the out-takes. Previously theoretical questions are now very immediate. Given that this work has some funding we are obliged to cross every ‘i’, including obtaining clearances from each of our interviewees. This poses some interesting problems and dilemmas regarding the licensing options. I will expand on this later this week. Worth noting is that the only person to look over the standard form attentively was Brewster Kahle, who made his signature contingent on the addition of a commitment to make the film available on the archive.org website – fair play Brewster!
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- Knowledge is born free, yet is everywhere in chains…
- civil liberties
- Data Protection
- European Court of Justice
- european directives
- european regulations
- european union
- material culture
- open video
- Pirate Bay
- Pirate Party
- social cooperation
- steal this film