[Commons-sense] Commons-sense: New copyright for a new society - EDITION 1

[Heather Ford]

COMMONS-SENSE: New copyright for a new society
Edition 1: December 2004
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CONTENTS

1. Editorial: 'Making commons-sense of 2004'
2. Letter from America: 'The bill that would make the iPod illegal'
3. 'Forbidden. You don't have permission to access this server' - LIO in
dire straights
4. Creative Commons and the GNU GPL: What's the difference?
 5. Porting learning from a local 'case' to global 'cause': Case Study of
learning practices in Creative Commons

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EDITORIAL: 'Making commons-sense of 2004'

Dear commoners,

Today we bring you the first edition of 'Commons-Sense', an e-zine packed
with interesting tit-bits about copyright and the Internet, developed by
some of the world's most progressive practitioners in the field. This
edition is sponsored by the Open Society Institute of Southern Africa
(www.osisa.org) - so instrumental in supporting free societies around the
world.

The past four months have been a wild ride for Creative Commons in South
Africa. We've been talking to people around the country and as far a field
as Namibia about how they could use open content licences like Creative
Commons in their work, and have met some incredible individuals who are
pioneering cc efforts locally.

BRAG BOOK NOTES:

* Creative Commons was a major feature in the December 11 Go Open television
program on SABC2 - this is an excellent introduction to the cc licences and
includes an interview with Larry Lessig and a feature on the cc-licenced
Wired CD. One of the really talented directors of this great project, Roy
Blumenthal, said that the programs will soon be available on DVD from the Go
Open website (http://www.go-opensource.org/go_open/). Check it out - this is
really great television.

* The first print magazine article in SA to be licenced under Creative
Commons was written by Derek Keats and published by NetPlus Magazine. There
have been articles in both Student Life and the Media magazine on cc in
South Africa - not to mention some great insights in tectonic.co.za and
linux.co.za. (see http://za.creativecommons.org/press/ for more)

NO RIGHTS RESERVED for local Jo'bloggers:

After going to their ultra-cool spot in Johannesburg and arguing with Rich
for an hour over latte and chocolate biscuits, I was thrilled when the Jo'
bloggers dedicated both their sites (joblog and helloworldblog) to the
public domain. And all this by the time I had arrived back at my office!

Said Rich, 'Sometimes it's not enough to leave things to assumption,
especially if you want to make a statement. We want people to know where we
stand, the creative commons license we display says it all!' (see
http://za.creativecommons.org/blog/archives/category/featured-content/ for
more featured commoners)

A HOME FOR ccSA:

The world-renown LINK Centre at Wits University agreed to host Creative
Commons in South Africa in October this year. We're all set for a busy year
in 2005 when LINK hosts a project called 'Commons-sense' to initiate local
debates on open content policies in the African educational publishing
sector. The Commons-sense project will see LINK publishing training
materials for organizations wanting to develop their own copyright policies,
and running an exciting conference at the end of May to discuss the
relevance of open content in African education and innovation. Watch this
space for more details in the new year!

This edition of Commons-sense highlights the ideas of some of the pioneering
individuals who make Creative Commons the success that it is. From Andrew
Jankowich, an American lawyer who writes our 'letter from America' column
about copyright developments in cutting edge copyright country, to
Christiaan Bester, a local copyright scholar who has done some great work
assessing the Laugh It Off case from freedom of expression provisions of the
South African constitution. We also have a great analysis by Rudy Nadler-Nir
about the iCommons movement. This rapidly-growing project is a becoming a
model for international collaboration, providing a shared space for us to
learn from our differences in finding common ground.

We are determined to make this an easy, pleasurable read - so if you have
any suggestions on how to make it better, our philosophy is openness.

Thanks for reading!

Best wishes,

Heather.

mailto:heather at creativecommons.org

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Letter from America: 'The bill that would make the iPod illegal'

The US is not only the largest exporter of intellectual property around the
world, but also the largest exporter of policies relating to copyright,
trademarks and patent law internationally. Thankfully the States are blessed
with a large helping of lawyers who don't only sing their allegiance to
Walt. We've hijacked once such lawyer, Andrew Jankowich, Director of
Business Development of Metaboston Media in Cambridge, Massachusetts to keep
us up to date with the latest IP policy news direct from coal face.

As you may have heard, illegal file-sharing in the U.S. has reached extreme
levels in the past few years, with an estimated 60 million people using
file-sharing networks around the country. In order to try and curb the
widespread use of such networks, organisations like the Recording Industry
Association of America (RIAA) have sued over 6,200 individuals in the past
year. Lawsuits against a (relative) handful of individuals won't appease the
fearful and trigger-happy content industry for long, though. In response,
they have decided to shift their attack to the developers and manufacturers
of technology through legislation like the Induce Act. This shift creates
the fear that technological innovation will be crippled by the threat of
litigation from content owners. Andrew Jankowich describes the bill that
would make the iPod illegal in the US.

Dear cc-ers in Africa,

Hope you're having a relaxing summer.  Those of us in the U.S. who use,
enjoy, or make our livings from technology (a fair number) are breathing a
sigh of relief that the that Sen. Orrin Hatch, U.S. Senator from Utah
(http://hatch.senate.gov/) and songwriter (http://www.hatchmusic.com/), was
not able to get the Induce Act passed into law by Congress.  But we can't
become too relaxed.  Like a villain from movies like Halloween
(http://en.wikipedia.org/wiki/Halloween_(movie)) there remains a strong
possibility that the Induce Act could rise from the dead to plague us in the
future.  So let's take a look at what we're facing.

Formally known as Senate Bill S.2560 (A bill is a proposed law that has yet
to be approved) this contentious piece of proposed legislation is more
commonly referred to as the 'Induce Act' from its full name, the 'Inducing
Infringement of Copyrights Act of 2004', and because "inducing" infringement
of copyright is at the core of its controversy.

The Induce Act attempts to set a new standard in which people and companies
can be found liable for inducing copyright infringement based substantially
on "whether the activity relies on infringement for its commercial
viability."  This new standard would put technology companies (like computer
makers) on the defensive for what content companies (like record labels or
movie studios) see as technology companies' role in fostering copyright
infringement, particularly through peer-to-peer file sharing systems.  With
the language from the Induce Act, a piece of technology that many people use
happily and legally today (one that has substantial non-infringing uses)
could still be found to infringe if it is found to rely on infringement for
commercial viability.  For example, a letter to Sen. Hatch from a group of
prominent technology companies like Yahoo! in response to the bill stated
that "It would seem to subject all who invest, manufacture, or 'traffic' in
legitimate home, personal recording, and Internet products to a new and
unquantifiable risk of litigation."

Although the movement to review and reform the current system of copyright
by organizations like Creative Commons is sometimes referred to as
 "copyleft", suggesting a leftward political bent, opposition to the Induce
Act is widespread and diverse with organizations and individuals from across
the political spectrum lining up against it including, the Business Software
Alliance, the Computer Systems Policy Project, the Information Technology
Industry Council, American Conservative Union executive director Richard
Lessner, and technology companies like Intel, Google and Yahoo!

Why did the Induce Act scare so many different people?

The Induce Act attempts to alter the terrain in the ongoing feud between
content providers, like movie studios and record companies, and technology
makers, like the manufacturers of computers, VCRs and iPods, by creating a
new legal standard for copyright infringement.  The fear is that the Induce
Act is so vaguely worded that its attempt to control technology will have
widespread consequences on the U.S.'s robust tech industry.  A prime concern
is that a bill like this would discourage technological innovation because
the lowered standard would make technology companies too fearful of lawsuits
to experiment with new technologies.  Because the United States is such a
litigious country, the risk of expensive litigation might make an innovative
potential product too dicey for a company to put on the market.

The primary target of the Induce Act is peer-to-peer networks, like Kazaa
(http://www.kazaa.com), where files, including illegally copied files like
music mp3s, can be traded.  However, networks like Kazaa are only one kind
of peer-to-peer network.  As Ernest Miller and others (including nervous
technology companies) recognize, much of the internet and the communications
technology average people use is set up along peer-to-peer lines and might
easily be captured by the bill's language.  For example, the Electronic
Freedom Foundation, (www.eff.org) has put together a mock legal complaint
showing how easy it would be to file suit for inducing copyright
infringement under the Induce Act against companies like Apple (for selling
iPods), Toshiba (for supplying hard drives for iPods) and CNET (for
reviewing and explaining how to use iPods).  You can view the mock complaint
at http://www.eff.org/IP/Apple_Complaint.php.  Another problem with the Act'
s legislative fix is that an increasing amount of peer-to-peer software such
as Gnutella is the product of open-source projects.  Open-source software is
the product of contributions by numerous programmers but doesn't have a
central authority or office that can be targeted under the Induce Act the
way technology companies like Yahoo, with a traditional corporate hierarchy
and a central office, can be.

The Induce Act is only the latest battle in an ongoing war. The issues that
the Induce Act tries to address are similar to those in the highly
influential "Betamax" decision by the U.S. Supreme Court in 1984 which
concerned the once-revolutionary and now mundane technological innovation
known as the VCR, the video cassette recorder.  The Betamax case is formally
known as Sony Corp. v. Universal City Studios
(http://caselaw.lp.findlaw.com/scripts/getcse.pl?court=us&vol464&invol=417)
and you can see the opposing forces in the Induce Act controversy already
lined up there.  Sony and others manufactured VCRs that Universal and other
movie companies claimed were being used to make copies of their movies when
shown on TV, infringing the studios' copyright in those movies.  Therefore,
the movie companies claimed that Sony was contributing to infringement and
should be held liable.

While it was true that people were using their VCRs to tape movies from
television, the Supreme Court decided that what was significant was not
whether an infringement had occurred but whether the VCR was capable of
"substantial non-infringing uses."  The logic being something along the
lines of: you could use a hammer to break a window but hammers should not be
outlawed on that basis because there are substantial positive uses for a
hammer, like hammering nails in building houses.    "Substantial
non-infringing uses" became a key standard in addressing future technologies
and you can see its application today.  An Apple iPod can be used to copy
and play illegally copied music, as the EFF mock complaint demonstrates, but
it is also capable of "substantial non-infringing uses" and is a legal
product in the U.S.  The Induce Act is an attempt to alter the "substantial
non-infringing use" standard in Congress rather than in the court system.
As the EFF mock complaint shows, under the Induce Act regime, the iPod could
easily be determined an infringing technology and removed from the market.

The twenty years since the Betamax decision have been wildly innovative
technologically (the internet, cell phones, email . . . .) and many fear
disrupting that innovation through laws that favor one set of companies,
content providers, over another,  technology companies.  Although the Induce
Act is not an immediate threat, it is only a stalled and controversial bill
without Congressional approval, it is important to watch for future attempts
to raise it from the dead.

Oh, and how are the movie companies doing in the wake of their loss in the
Betamax case?  They now make more money from movie sales and rentals for
viewing at home on VCRs and DVD players then from films' theatrical
releases.  Perhaps the lesson for avoiding messy fixes like the Induce Act
is to view change as an opportunity rather than a crisis.

Best wishes and happy holidays,

Andrew.

Andrew Jankowich is a lawyer, entrepreneur and writer living in Cambridge,
Massachusetts, USA.  He is the Director for Business Development of
Metaboston Media, a web-based publishing company and consultancy; and a
graduate of the University of Pennsylvania Law School; King's College,
University of London; and Dartmouth College.

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'Forbidden. You don't have permission to access this server'
LIO in dire straights

Go to www.lio.co.za and you'll get a page that says: 'Forbidden. You don't
have permission to access this server'.

After losing its case against SAB in the Supreme Court this September, LIO
was served with an injunction to stop the production of its calendar and
popular youth culture annual, and to take offending material off its
website. The company has been forced to close, and we may not be able to
hear from some of the only independent voices from the youth of South Africa
this Christmas. When I asked Justin Nurse why their site was still offline,
he said, 'First it was because of the SAB injunction, now it's because we're
too broke to put anything up in its place.'

Christiaan Bester, copyright scholar and local lawyer, discusses some of the
questions raised by the recent Supreme Court decision, and looks forward to
March when the Constitutional Court hears the case for the first time.

The legal battle between South African Breweries (SAB) and Laugh-it-Off
Promotions (LIO) has captivated the imagination of lawyers and students of
popular culture alike. Never before has a South African Court been
confronted with the question of how far the constitutional guarantee of
freedom of expression challenges intellectual property rights. In the
Supreme Court of Appeal's judgment (accessible from www.law.wits.ac.za)
handed down on 16 September, the issue was whether the Cape High Court was
correct in handing down an interdict preventing LIO from parodying  SAB's
"Black Label trademark" on its T-shirts. The Court confirmed the decision of
the Cape High Court and found LIO's reliance on parody and freedom of
expression as defenses to trademark dilution to be misconceived.

Nothing in the judgment suggests that this decision was wrong as far as
intellectual property lawyers are concerned, but did the Court pay
sufficient deference to LIO's right to freedom of expression? The answer is
not necessarily in the affirmative. The Court seems to have been heavily
swayed by SAB's interpretation which suggests that LIO's T-shirts created
the impression that SAB was guilty of the perpetual exploitation of the
black South African working class. On this basis, the Court found there to
be sufficient evidence of a likelihood of loss to SAB since the T-shirts
would leave a distasteful, unsavory association in the minds of consumers.

In arriving at the above conclusion, the Court ignored a central notion
underpinning our freedom of expression jurisprudence that no matter how
offensive a statement might be, it still enjoys constitutional protection,
with the exception of certain enumerated categories of expression, which
played no role in the matter. The Court did not seem to take this into
account, nor did it heed caution to the fact that judges should as a rule,
not constitute themselves the final judges of a work. Where such a work
forms part of popular culture, a judicial evaluation of the content of a
statement is all the more dangerous since judges are not likely to be
familiar with complex messages of popular culture. This point was
pertinently made by the American Supreme Court:

'Whether, going beyond that, parody is in good taste or bad taste does not
and should not matter to fair use.' As Justice Holmes explained, "It would
be a dangerous undertaking for persons trained only to the law to constitute
themselves final judges of the worth of [a work] outside of the narrowest
and most obvious limits. At the one extreme some works of genius would be
sure to miss appreciation. Their very novelty would make them repulsive
until the public had learnt the new language in which their author spoke."'

As for LIO, the decision does not mean the end of their road. They have
decided to take the matter to the Constitutional Court and the matter comes
up for hearing on 8 March 2005. Here, the issue will no doubt revolve
exclusively around the question of whether the Supreme Court of Appeal
showed sufficient deference to LIO's right to freedom of expression. LIO
will surely find the Constitutional Court more sympathetic to their case,
but this does not mean the eleven judges of the Court will overturn the
Supreme Court of Appeal's judgment. The outcome is awaited with interest.

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Creative Commons and the GNU GPL: What's the difference?

Version 2.0 by Heather Ford, first published in Tectonic.co.za, October 20,
2004

A crash course in deciding which licence to use.

The GNU GPL was created by Richard Stallman in 1989 to grant users the right
to copy, modify, and redistribute software and to ensure that the same
rights were preserved in all derivative works.

Creative Commons was inspired by the GNU GPL. Lawrence Lessig and others
believed that the free and open source software movement's approach to
copyright held enormous promise in trying to solve some of the problems
around copyrighting music, film and books on the Internet. Creative Commons
believed that there was a need for some balance between extremes in the
debate around what constituted copyright and "copyleft" and that the
original author should be able to decide and, more importantly, understand
these conditions at first glance.

There are definitely similarities between the licences. Both the GNU GPL and
CC approach ownership and re-use of software, in the case of the GNU GPL,
and content, in the case of Creative Commons, in the following way:

- First, the software/content is protected by copyright.

- Then, the copyright holder grants permission to copy, distribute and/or
modify the software/content according to a licencing agreement.

While the conditions of the GNU GPL are unchangeable, Creative Commons
allows the user to simply choose the conditions under which they make their
work available on the Internet.

The three decisions that the user must make include:

1. Whether the work will be made available under non-commercial or
commercial terms;
2. Whether derivatives will be allowed to be made of the work or not; and
finally,
3. Whether derivative works must be made available under the same terms that
they were first used, or not.

According to Creative Commons Canada
http://www.cippic.ca/en/projects-cases/icommons-canada/, there are, in fact,
only two cc licences that would qualify as 'open source' if they were
applied to software: the Attribution
http://creativecommons.org/licenses/by/2.0/ and the Attribution-ShareAlike
http://creativecommons.org/licenses/by-sa/2.0/ licenses. The other four
permutations containing the requirement of "no derivatives" and/or "no
commercial use" wouldn't qualify because they don't allow users to make
changes to the work or to charge for its use (GPL allows authors to charge
nominal fees for reproducing CDs of the software etc).

Both licenses have their strengths, relating specifically to the types of
products that they aim to protect and innovate around. For many, the success
of Creative Commons lies in its user-friendly approach to licensing. The
simple CC format prompted the Brazilian government to combine the software
focus of the GNU GPL with the CC "human readable code" wrapper to create the
CC-GNU GPL http://creativecommons.org/licenses/GPL/2.0/. The CC-GNU GPL is
used to license all government-initiated software projects and has been
translated into Portuguese.

The combination of the two licences has also prompted a discussion within
the Creative Commons community on designing a Creative Commons licence
specifically for software.

According to Information Technology lawyer, Elizabeth Rader, "there are
already multiple off-the-shelf licenses meant to express 'some rights
reserved' for software, but these tend to be one-size-fits-all...

"The beauty of a Creative Commons licence is that humans, even lawyers, can
understand its scope instantly."

Although we may disagree about features of the licences, the goal of the GNU
GPL and of Creative Commons remains the same: a liberated information
society where innovation and creativity is open to all. Both movements
recognise that only when we are able to break monopoly market control
imposed by one-size-fits-all copyright rules, can we achieve the goals of
creating truly free markets and liberated societies.

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Porting learning from a local 'case' to global 'cause': Case Study of
learning practices in Creative Commons

by Rudy Nadler-Nir

This paper is a fascinating analysis of the local-to-global-to-local dynamic
of the iCommons movement. In it, Nadler-Nir discusses the iCommons 'porting'
of 'social reality' from one community to another, and the useful learning
that takes place in a world that acknowledges both local and global aspects
of learning. According to Nadler-Nir, 'As a local, American, civil society
organisation that globalised its case, 'porting' it to a cause, Creative
Commons epitomised this dialectic process by, firstly, rejecting existing
licensing practices,  secondly, through the formulation of alternatives
and - finally - mobilising support through adoption of the new licenses by
those most affected by the shortcomings of the current system.'

http://za.creativecommons.org/resources/Porting%20learning.pdf

Rudy Nadler-Nir is studying for his Intercontinental Master's Degree in
Adult Learning and Global Change at the University of the Western Cape,
South Africa.

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Download a pdf version at
http://za.creativecommons.org/commonssense/edition1.pdf

Commons-sense is licenced under the Creative Commons
Attribution-NonCommercial-ShareAlike 2.0 (go here
http://creativecommons.org/licenses/by-nc-sa/2.0/ for the licence
conditions) by the Association for Progressive Communications
(http://www.apc.org).

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heather at creativecommons.org