
Houston, We Have A Public Domain Problem - sinak
http://medium.com/@xor/houston-we-have-a-public-domain-problem-bd971c57dfdc
======
quaunaut
The following comment isn't strictly on subject, but it speaks to the cultural
mindset toward all of this that seems pervasive even among the fastidiously
anti-corporate.

The attitude of content creators today scares me a bit. I was in a
conversation with two artists the other day, one professional and one amateur.
They both firmly agreed, that drawing someone else's characters as a
commission was morally wrong and legally grey, and when I asked why, they say,
"Because they're taking my money."

"But you wouldn't have gotten money there anyway, if they had never produced
the art." I argued. They countered by saying, it was stealing. "But what would
it cost you?" Nothing, they said, but it wrested control from them, and
potentially could lose them the rights to the work. "Wait- howso? You retain
ownership, you're simply letting others use your work as inspiration and get
paid for their efforts. It in turn, draws more to your story, your world- who
loses?" They argued that was the 'exposure' angle, and I didn't really know
what to say- I mean, I wouldn't have watched Sherlock if not for the legions
of fanart of it on Tumblr, or listened to Jay-Z if not for the works of Girl
Talk.

They argued, all content should be original- but I can't fathom that. Is art,
similarly to science, not an iterative process based on the input of dozens,
hundreds, thousands of people that came before us? Are we all not standing on
the shoulders of giants, pushing just a few steps forward more, both because
we like what came before us but want to see it go someplace new?

I wish we'd all stop feeling so threatened, I suppose.

EDIT: I should emphasize, I admitted they had the right to request no one use
their characters, and if anyone did they clearly were an asshole. But that
doesn't mean I wouldn't think doing so was a mistake.

~~~
sliverstorm
Losing control of your characters could be damaging to you.

For example, you create a popular, compelling character & world. E.g., Harry
Potter.

Now suppose that due to its popularity, other artists jump on the bandwagon
left and right.

Too many bandwagon-jumpers, and your creation is diluted. It is a commodity.
People see it every day.

With nobody else producing works with your characters & world, you are the
sole source. If we think about supply & demand, we know what that means.

~~~
sparkie
Is there actually any evidence that derivative works are damaging to the
original? If anything, they serve to advertise the original, making it more
well known, or even fueling the subcultures that arise around a piece of art.

If you're not familiar with it, have a look at the Touhou project (set of
Japanese arcade-style games, where the author explicitly gave permission for
people to remix his art, whilst retaining fully copyright over the games, and
forbidding commercial distribution of them). Touhou is huge - and it's not
just because of the games - the derived art works have significantly impacted
take up of the games, and created a somewhat unavoidable franchise, inspired
countless of creators to produce and share, and will probably have a long
lasting presence within otaku culture.

~~~
sliverstorm
Derivative works _in a different medium_ might be helpful, yes.

Notice the author in your example retained full copyright over the games. The
author is _not_ allowing derivative games.

~~~
sparkie
He is now allowing derivative games because they are protected by copyright,
however, his artwork is free to use with few exceptions, so there's nothing
preventing you from creating new games using the same characters, which are
not derivatives, as many have done:
[http://touhou.wikia.com/wiki/Other_Games](http://touhou.wikia.com/wiki/Other_Games)

In books, this would be equivalent to reusing characters, their personalities
or traits, but copying sections of the original works verbatim is obviously
still plagiarism.

------
jsmthrowaway
Could this be as simple as accidentally using the Tom Hanks recorded audio
from the film _Apollo 13_ instead of Jim Lovell's actual words from the
mission? That he misquoted it in the text has my attention, because Lovell
actually said "we've had a problem" on the NASA loop. "We have a problem" was
the interpretation and misquote in the film.

Not that I'm disagreeing with the article, just caught my eye.

~~~
pajop
Jim Lovell via
[http://apollo13.spacelog.org/page/02:07:55:19/](http://apollo13.spacelog.org/page/02:07:55:19/)
\- "Houston, we've had a problem. We've had a MAIN B BUS UNDERVOLT."

Jim Lovell as played by Tom Hanks via
[http://www.imdb.com/title/tt0112384/quotes?item=qt0476805](http://www.imdb.com/title/tt0112384/quotes?item=qt0476805)
\- "Houston, we have a problem."

------
Hannan
I hate to even post this, because I agree with everything else the OP has to
say but this part:

>> Beyond that, the public domain was once the default in the United States:
unless you put a proper notice with a copyright sign and the year, and sent in
a registration form and fee, your essay or film or recording or picture would
never carry copyright restrictions at all.

...I don't like. And maybe that's just because I've never created anything of
interest, or of value, or maybe simply because I don't understand the
implications. But it seems to me that it's better, or at least more efficient,
to assume everything is copyrighted once it has been created rather than
requiring everyone to file a form with an associated fee for everything that a
person ever decides to create ("What if somebody decides they would use it in
a commercial??).

Of course I would like to see the above coupled with _extremely_ short default
copyright lengths, and then perhaps an escalating fee for subsequent
extensions. And given our current copyright climate, I suppose I would still
side with the author. But I think there's a middle ground where content
creators aren't spending their time filing forms and paying fees, but rather
_creating_.

But maybe if that creative work isn't popular immediately, you move on to
other creative endeavors. And the copyright-free diaspora of your previous
work serves as advertising or "proof of merit" of your new works, if you're
truly creative. And if you're not (like me), but you happened to have one and
only one monetizable work that happened to be extremely ahead of its time...
well then maybe at that point you should just be happy that humanity
eventually discovered what a genius you were.

I look forward to hearing about where I'm wrong about this particular aspect,
because I feel like I must be overlooking something.

~~~
betterunix
"it seems to me that it's better, or at least more efficient, to assume
everything is copyrighted once it has been created rather than requiring
everyone to file a form with an associated fee for everything that a person
ever decides to create"

More efficient for what, exactly? Because it is much more efficient for me to
just assume that nothing is copyright when I creating something new that
incorporates the work of others. It is overwhelmingly more efficient to just
ignore copyright on the Internet -- our computers are the greatest copying
machines ever made, and spending our time trying to figure out if some data is
copyrighted is nothing but a retarding force.

~~~
bangin
I'm all for free works and the Public Domain. The only problem with assuming
that some work is free unless otherwise noted is that an entity with more
resources can claim the same rights, and therefore profits, to a given work
until presented with a significant challenge. A smaller entity can easily
placed on a disadvantage.

~~~
Fuxy
If there's a public database of all copyrighted content they can't just assume
without checking.

As far as copyrighting is concerned I think it's fair to require you to put
some effort into protecting your works.

However free copyright should only last about 20 years after that a small fee
should be required on the 21'st year and that fee should grow exponentially[1]
every 10 years from then on.

If it's valuable enough to you you will pay the fee but if it isn't you will
release it into the public domain.

That will prevent people keeping thing copyrighted for too long and companies
like Disney could keep their stuff copyrighted for at least 100 years before
the fees get too large.

If it's no profitable there's no point in keeping it copyrighted and you're
just hurting the public domain by doing so.

[1][https://en.wikipedia.org/wiki/Exponential_growth](https://en.wikipedia.org/wiki/Exponential_growth)

------
skywhopper
DMCA takedown procedures constitute a Denial of Service attack vector that's
been embedded into copyright law. Given that it's been 18 years since the DMCA
retroactively extended copyright for 20 years, it's time to start gearing up
for the fight over the next attempted expansion of copyright law. Copyrights
that last longer than a lifetime are a cultural cancer. And we're now well
into Stage III.

------
deciplex
I wonder if this was actually a DMCA takedown? The article isn't clear.
Shouldn't Parker be initiating a counterclaim process and taking to court the
assholes who filed this fraudulent claim? If not, is this Soundcloud acting on
behalf of the assholes, circumventing DMCA altogether? That's worse, and if
that's the case, it's a shame the article doesn't mention it.

~~~
mutagen
I thought it was fairly clear that this was not a DMCA takedown but part of an
automated process by Soundcloud, similar to YouTube's Content ID [1], that
attempts to identify copyrighted content and preemptively block it rather than
wait for DMCA takedown notices from copyright holders.

 _So I was disheartened when I got the takedown, and even more so when I
looked through the guidelines for disputing an automatic match and found that
I faced a presumption of guilt._

The scary part of this system, which you touch on, is that there is no clear
procedure for contesting public domain audio and recourse for ensuring that
mistakes get corrected. It circumvents the DMCA entirely by choice of
Soundcloud, presumably to build a monetization model that generates revenue
for copyright holders that opt into their system, similar to YouTube.

[1]
[https://support.google.com/youtube/answer/2797370?hl=en](https://support.google.com/youtube/answer/2797370?hl=en)

~~~
deciplex
I guess it's clear, and he never mentions DMCA by name. I'm just confused why
the author isn't more pointedly calling out Soundcloud _for circumventing DMCA
on behalf of (alleged) copyright holders._ The DMCA, for all its faults, at
least has some token protection for end-users. For someone whose job is
primary copyright activist for the EFF, this guy is cutting Soundcloud an
_awful lot_ of slack for what are anti-creative, anti-cultural, and anti-
social policies.

I mean look at this:

>I’m sure my particular uploading situation will work out fine. SoundCloud is
full of smart people, and this automated match will get cleared up in days, if
not hours.

So, what... nothing to see here, then? Is he trying to get his job at
Soundcloud back? What bootlicking horseshit is this? It is not copyright
activism.

~~~
thisisparker
Hey there, OP here.

These are good questions, though I disagree with the characterization here.
Like: I don't think anybody's __circumventing __the DMCA, so much as tacking
on additional measures not required by law. Anybody who 's doing algorithmic
enforcement, including YouTube and newly Vimeo, is in the same boat; in large
part it's the result of negotiations with media partners who demand it in
exchange for access to content. So, they're doing something separate from what
the law requires (in addition to what the law requires) in order to satisfy
partners... not really circumvention.

BUT it sucks. And it especially sucks when it's done in a way that doesn't
respect users. And I've written about that lots, though not so much in this
particular piece.

Sites have all kinds of "guidelines", and some of them are offensive and
others aren't as much. Vimeo used to prohibit video gameplay uploads, for
example; that's probably not something I'd campaign on.

I probably should have put an extra sentence at the end to explain what I mean
by the line you quoted, but I guess I didn't think people would read it as
"bootlicking horseshit." In fact, I'm sorry to say I think you've read it
exactly backwards.

I meant to emphasize: the issue is not my particular upload of Apollo 13
audio, which is obviously also available from a million other places. If you
read the thing and think it's about my complaining that this particular audio
is taken down, that gives SoundCloud WAY too easy an out: they just comply
with their own policies, maybe expedite the process for a (1) former employee
who (2) works in copyright policy and (3) got the dispute to the top of Hacker
News, and then they can wipe their hands of it.

No, making this issue about any one piece of content, my own included, misses
the forest for the trees. I am mad, and I will stay mad even once SoundCloud's
reasonable employees doing their job flick a switch and reinstate my upload. I
don't want other people to feel like they can relax once my upload is back in
place. It will be back in place, but what we need is systemic improvements to
eradicate the creeping permissions culture.

~~~
deciplex
>I don't think anybody's circumventing the DMCA, so much as tacking on
additional measures not required by law. Anybody who's doing algorithmic
enforcement, including YouTube and newly Vimeo, is in the same boat; in large
part it's the result of negotiations with media partners who demand it in
exchange for access to content. So, they're doing something separate from what
the law requires (in addition to what the law requires) in order to satisfy
partners... not really circumvention.

To me, it seems that these hosting providers have traded safe harbor under the
law, for safe harbor under contract with their media partners, in exchange for
content. In so doing, they enable those partners to send what effectively
amounts to takedown spam, where under the DMCA regime they'd open themselves
to a lawsuit if they didn't conduct due diligence.

How is that not circumvention?

Excuse the tone of my posts here: I'm very perplexed. I get that you're upset,
but you seem to be completely ignoring, and here even dismissing, the
underlying cause for your spurious takedown notice.

~~~
thisisparker
Ok, I think I see what's going on here.

DMCA says: if you want to have a safe harbor, these are the basic things you
have to do. You have to name an agent, take notices, takedown promptly, have a
repeat infringer policy, etc. If you don't do those things, you lose your safe
harbor.

SoundCloud does all those things, so they get the safe harbor.

The additional systems they have chosen to put in place are just that,
additional. Adhering to DMCA is not required (though you don't get the safe
harbor if you don't) and it's not a ceiling on what kinds of arrangements
companies can make with each other.

But again, you're right that it's the thing that burned me here, and I think
they merit a lot more scrutiny than they get, and I'm trying to lead that
scrutiny more in other places. Prohibiting additional measures would also
tangle up other site "guidelines" like the Vimeo one I mentioned, or even
YouTube's ability to do content matching and revenue splitting.

You've identified a really key problem though, that those additional rules,
whether offensive or inoffensive, are made completely at the discretion of
online services and generally without input from users.

------
ChuckMcM
I hope he can get Soundcloud to add the option 'this work is in the public
domain' to their choices.

~~~
totoroisalive
This is actually what bothers me the most, no option of public domain.

[https://d262ilb51hltx0.cloudfront.net/max/829/1*wewubAYhViyr...](https://d262ilb51hltx0.cloudfront.net/max/829/1*wewubAYhViyr86Xzmp8jdQ.png)

~~~
pilif
This could be related to the fact that soundcloud is an european company and
none of the legislation in Europe actually provides a means for donating works
to the public domain (see
[http://en.wikipedia.org/wiki/Public_domain#Dedicating_works_...](http://en.wikipedia.org/wiki/Public_domain#Dedicating_works_to_the_public_domain))

I remember the creator of SQLite talking about this on a very old episode of
the FLOSSWeekly podcast where he said that this was somewhat hindering
adoption because in Europe the legal status of SQLite wasn't clear.

~~~
skrebbel
He solved that by allowing us to buy an SQLite license for 1000 dollars,
though :)

I wonder how many of those have been sold!

------
jmarin
For anyone interested in more thoughts on copyright and (the killing of)
culture, I highly recommend this video on the Amen break:
[https://www.youtube.com/watch?v=5SaFTm2bcac](https://www.youtube.com/watch?v=5SaFTm2bcac)

Additionally, this comic is informative and fun:
[http://web.law.duke.edu/cspd/comics/](http://web.law.duke.edu/cspd/comics/)

------
ArchD
I seems that some copyright claimants spam website operators with bogus
takedown notices. What the DMCA takedown procedure lacks is a provision
allowing website operators to just ignore takedown notices from claimants with
a spotty track record of bogus claims. The standard for 'bogus' could be
something as simple as a hit-rate threshold (fraction of claims in past x days
that are not shown to be bogus).

~~~
alloyed
A reputation system would be trivial to circumvent, though, through a shell
entity. an easy way I'd imagine to limit bogus claims would be to make it so
that a bogus claim has a negative effect, in the small. Normal law has this
pretty well figured out: you win, you get reimbursed, you lose, pay up.

------
aikah
Sorry but that's the price to pay today when one puts content on third
parties.

There are enough open source projects outthere to allow anyone a bit tech
saavy to host his own stuff.

Dont use soundcloud,youtube,or whatever and you wont have to deal with all
these automatic take downs. For the record i've been victim of abusive DMCA td
requests on music i've produced MYSELF since then I host my own stuff,period.

~~~
adrusi
Self hosting music is one thing, but it's hard to imagine self hosting video
being a reasonable alternative to youtube any time soon. The bandwidth
involved in delivering video should it become popular is far too expensive to
justify the benefits over a hosted solution for the majority of purposes. A
10MB video (small) with 100,000 views (a modest number for a somewhat popular
video) is a full terabyte of bandwidth. By AWS s3 pricing, that's 120 USD.
It's possible that if you invest quite a bit of time into getting ads set up,
their revenue could cover that cost, but on youtube, a video with 100,000
views and a fairly average level of advertising nets about 180 USD to the
uploader, and they don't have to pay a cent for hosting it (except of course
for a cut of their revenue).

------
nthitz
I listen to a lot of mashups. Previously a lot of mashup artists hosted their
tunes on SC. Lately. SC has been deleting the entire profile of many of these
artists, or just removing all/many of their songs. Some of these people only
used SC for hosting so it is an unfortunate loss.

Still quite a grey area if mashups are fair use. (Girl Talk has an album for
sale on iTunes)

~~~
aikah
Nothing grey here.

Since when one choose the license of the product one uses?

Not getting caught violating a license=/= grey area.

If you write a software and state one must pay 100$ to use it, and you find
that software sold on ebay without the seller giving you a cent,or in a
torrent , would you call it "grey area"?

So why things have to be different with music or movies?

If you ask me ,did I ever pirate something,i'd answer yes of course I did like
most of us.

But I would never try to justify my actions by saying "Oh but you know it's
kind of grey".It's not,i'm violating a license by enjoying something i got
through illegal means.There is no grey area here. Let's stop the hypccrisy.

Mashups are not fair use.Would be like saying sampling is fair us,it makes no
sense.If you dont have the explicit authorization from the artist or the label
you cant just use something you didnt created that is not public domain.There
is no grey area here.

~~~
nthitz
I appreciate your comments. But I wouldn't compare the distribution of an
identical copy of other's copyrighted content with mashups. Mashups are
usually transformative, as opposed to merely derivative.

The EFF has interesting thoughts on the subject [1]. I wouldn't equate mashups
to piracy quite like you, but I can see where you are coming from.

[1] [https://www.eff.org/deeplinks/2012/05/rip-mca-tribute-
pauls-...](https://www.eff.org/deeplinks/2012/05/rip-mca-tribute-pauls-
boutique-and-music-sampling)

~~~
anigbrowl
Transformative is not a binary thing. Most mashups are not that
transformative, and indeed many depend upon ease of recognition for their
appeal.

------
Mithaldu
I'm a bit confused here. He says Soundcloud does not provide a fitting reason,
but i see "I have a valid license" listed among the reasons, which seems to
fit perfectly in this case, as a PD work is implicitly licensed to everyone.
Why would he skip that?

~~~
chalst
If it was "I have a valid license", then I would agree - in fact, I could cite

[http://www.usa.gov/copyright.shtml](http://www.usa.gov/copyright.shtml)

as an explicit assertion of permission from the _creator_. But the actual
wording is "I have a valid license from the copyright holder", and that page
is not from the copyright holder, since no one holds the copyright...

------
gdewilde
We just have to go back to the peer to peer internet. Then you can be
responsible for your own deeds again.

------
electronous
This comes about because nerds are cowards by default. We're entirely too
unwilling to really bother to get the message about this sort of thing out to
the layperson, and we're even more unmotivated to actually do something about
it. I love to lambast the baby boomers as much as the next neckbeard, but at
least some of them actually had the chutzpah to do something.

~~~
themartorana
This OP works on the front lines at the EFF. Most nerds are smart enough to be
disillusioned by the plutocracy we live in. If by "do something" you mean sit-
ins, marches, protests, and whatnot, you have only to look at the Occupy
movement. I don't think people, or "nerds" specifically, are as passive as you
think.

We just know the fight, who it's against, and the apathy of the general public
that constitutes the fight before the fight.

I wouldn't call being mass-pepper-sprayed while sitting down at an Occupy
movement that much different from being hosed down during the Civil Rights
movement. Different cause, different day - same fortitude.

