Mashups, which have been repeatedly attacked by the entertainment industry, are by no means a new art form; they’ve been central to creativity for years (related examples are embedded below). Bach’s “Goldberg Variations” incorporate a number of popular songs of the era, including the always popular “Cabbages and Beets drove me away from you,” in its entirety, along with “Get closer to me, baby” (that’s what the German really means, except the “baby” part). So did Beethoven’s sonatas, particularly the second movement of the magnificent Opus 110 piano sonata (“Our cat had kittens” and ” I’m a slob, you’re a slob”). I could list examples for pages; musicologists spend entire careers searching for this stuff. The complexity with which these songs are woven into a much greater piece is amazing, but they’re there, they’ve obviously there once you know what to look for, and they go way beyond what would survive “fair use” and the DMCA, let alone SOPA and PIPA.
Even more fundamentally, there is no such thing as creativity that doesn’t rely on the past. Sometimes the links are very subtle and hidden; sometimes they’re out in the open, and we don’t notice them only because we’ve declared Bach and Beethoven “great composers” and forgotten the popular music of their day. Our peculiar post-Romantic notion that all real artists somehow create their works out of nothing is partly to blame. Nothing could be further from the truth. And it’s not just art. In a very rare moment of humility, Isaac Newton said “If I have seen further it is by standing on the shoulders of Giants.”
So the notion that creativity can be owned, and that any use of someone else’s ideas requires compensation, is nothing but an attempt to steal all of creativity. Whoever can pay their lawyers the most wins. Anyone smell pirates in the room? I am not willing to sacrifice this generation’s great artists on the altar of Hollywood. I’m not willing to have the next Bach, Beethoven, or Shakespeare post their work online, only to have it taken down because they haven’t paid off a bunch of executives who think they own creativity.
» via O’Reilly Radar
(emphasis mine)
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And this is the true evil of software piracy. Those users who don’t need any features specific to the software that they’re pirating are actively shrinking the user base for the free software that fills the same niche. Every user that pirates Photoshop when they could be using The Gimp (or paint.net or pixlr or any of these). Of course, when the price of The Gimp (or whatever) is the same price as Photoshop CS, they make the same choice as when they choose between CS and Elements.
These users aren’t stealing software, they’re stealing userbase.
Does that affect you? Yeah, absolutely. How?
Because publishers can write losses to piracy off of their taxes.
So these people who pirate software casually are increasing the counts of piracy, which allows the publishers to claim losses that aren’t really losses, as I’ve explained. Because the publishers are claiming less income, they pay less in taxes…which essentially robs the government of its income. So who is stealing from who?
"— The real loser in software piracy isn’t who you think | Standalone Sysadmin
"Valve’s Gabe Newell said it best, “Piracy is almost always a service problem and not a pricing problem.” Users flock to sites like MegaUpload, TVShack, and in the past, Napster, because they offer additional functionality and convenience. Look at Netflix, RDIO, MOG, Spotify: They all charge a fee for access to the same material that can be downloaded freely. People who care about their time don’t bother to download illegally. These services thrive because they offer the utmost in convenience, which is something the media companies have failed to provide yet."
— With MegaUpload Down, Who’s Next? RapidShare? SoundCloud? DropBox? | TechCrunch
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It’s really incredible that Dodd can go from saying that this shouldn’t have been seen as Hollywood fat-cats asking for handouts… and then immediately shift into talking about how much money they gave the administration, and how they expected the administration to simply give them what they wanted. That is a big part of the problem. That is what the internet is complaining about. People were upset that Hollywood can “buy” legislation that goes against the public’s best interests.
Furthermore, the idea that Hollywood donors did not “push the issue to the fore” is pretty laughable. Hollywood has been pushing incredibly hard to get this bill passed over the past year. We’ve heard time and time again about how much time and effort have gone into lobbying for this bill, and how there were ever-increasing efforts over the past few months, with some Congressional staffers saying it was an unprecedented push for a particular bill. They pushed. But they failed to recognize the reality outside the beltway.
And that’s why Chris Dodd failed.
If he wants to turn things around, it’s time for him to stop focusing on the DC inside ballgame. It’s time for him to join the internet community and actually engage. That may be tough to do, and he’s certainly burnt a lot of bridges, but there are ways to build new relationships. But it can’t happen if he’s still taking the attitude he takes in this article. It’s still about getting what he wants, and not actually listening to the concerns of the wider internet. And until he understands that basic fact, Chris Dodd is going to continue to fail.
"— Why Chris Dodd Failed With His SOPA/PIPA Strategy | Techdirt
"Alarmed by the mogul boycott, Sarandos sent a personal plea to the Hollywood studio chiefs over the weekend begging them to continue supporting the Obama re-election campaign even though he knows they are disappointed with the Obama administration’s position on the piracy bills. Several moguls, in response, ”sent back word saying ‘F*ck You’ basically,” one insider tells me, expressing how they feel used and abused by the President despite their campaign contributions."
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Hollywood’s Obama Donors On President’s Piracy Stand: Not Give A Dime Anymore
“what do you mean, our money can’t buy us the laws we want?! BUT BUT” … oh, this is just too priceless. what a delightful thing, to watch this bubble of entitlement being deflated, ever so slightly.
The Unprecedented Audacity of the iBooks Author EULA
Apple just released iBooks Author, a free Mac app for creating digital books for the new version of iBooks. I haven’t played with it much, but so far it looks like a very good tool. However, a curious thing happens when you go to export your work in iBooks format:
This restriction — that iBooks can be sold only in the iBookstore — isn’t enforced on a technical level. You can save the document, move it to your iPad in any of the usual ways (including just emailing it to yourself), and it happily opens in the iBooks app.
But if you look at the end-user license agreement (EULA) for iBooks Author, accessible via the app’s About box, the following bold note appears at the top:
IMPORTANT NOTE:
If you charge a fee for any book or other work you generate using this software (a “Work”), you may only sell or distribute such Work through Apple (e.g., through the iBookstore) and such distribution will be subject to a separate agreement with Apple.And in section 2:
B. Distribution of your Work. As a condition of this License and provided you are in compliance with its terms, your Work may be distributed as follows:
(i) if your Work is provided for free (at no charge), you may distribute the Work by any available means;
(ii) if your Work is provided for a fee (including as part of any subscription-based product or service), you may only distribute the Work through Apple and such distribution is subject to the following limitations and conditions: (a) you will be required to enter into a separate written agreement with Apple (or an Apple affiliate or subsidiary) before any commercial distribution of your Work may take place; and (b) Apple may determine for any reason and in its sole discretion not to select your Work for distribution.In other words: Apple is trying to establish a rule that whatever I create with this application, if I sell it, I have to give them a cut. And iBooks Author is free, so this arrangement sounds pretty reasonable.
Here’s the problem: I didn’t agree to it. Apple wants me to believe I did, of course, just by using the software:
PLEASE READ THIS SOFTWARE LICENSE AGREEMENT (“LICENSE”) CAREFULLY BEFORE USING THE APPLE SOFTWARE. BY USING THE APPLE SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT INSTALL AND/OR USE THE SOFTWARE.
But that language is in the EULA itself, a contract of adhesion which I was not required to sign (or even indicate my agreement to by clicking) before installing the software. So, to paraphrase: By using this software, you agree that anything you make with it is in part ours. But if it can say that and have legal force, can’t it say anything? Isn’t this the equivalent of a car dealer trying to bind you to additional terms by sticking a contract in the glove compartment? By driving this car, you agree to get all your oil changes from Honda of Cupertino?
Apple, in this EULA, is claiming a right not just to its software, but to its software’s output. It’s akin to Microsoft trying to restrict what people can do with Word documents, or Adobe declaring that if you use Photoshop to export a JPEG, you can’t freely sell it to Getty. As far as I know, in the consumer software industry, this practice is unprecedented. I’m sure it’s commonplace with enterprise software, but the difference is that those contracts are negotiated by corporate legal departments and signed the old-fashioned way, with pen and ink and penalties and termination clauses. A by-using-you-agree-to license that oh by the way asserts rights over a file format? Unheard of, in my experience.
When I make something myself, no matter what software I use to make it, then — assuming it doesn’t infringe any copyrights — it’s my right to distribute it however I want, in whatever format I choose, for free or not. I don’t lose the right to publish my novel if Microsoft determines that I wrote it using a pirated copy of Word. Would I lose that right if I tried to sell my iBook outside of the iBookstore and Apple got wind of it? I don’t know; we’re in uncharted waters here. Or how about this: for a moment I’ll stipulate that Apple’s EULA is valid and I’ve agreed to it implicitly by using the software. Now suppose I create an iBook and give it to someone else who has never downloaded iBooks Author and is not party to the EULA, and that person sells it on their own website. What happens now?
In ensuring that the App Store remains the only legitimate market for iOS apps, Apple doesn’t claim any legal rights to the content I create using its Xcode toolset. Instead, they enforce technical restrictions; apps must be cryptographically signed by Apple in order to run on unaltered iOS devices. Is this a good situation? For Apple and for novice users, maybe, but for developers it sucks and causes massive headaches. But in a way it’s better than a world in which software can assert whatever rights it wants over your stuff just by hiding a few paragraphs in its glove compartment.
Me, MIA?: On the SOPA soap opera
So it’s flattering to be missed, @JeffRoberts. Thank you for that. You’re right, I am not at the center of the SOPA fight (though obviously a strong supporter). Here’s a couple sentences why.
First, and again, this is a critical battle to wage and win. SOPA is just the latest, but in many ways, the most absurd campaign in the endless saga of America’s copyright wars. It will be yet another failed attempt in a failed war, and I obviously believe it should be opposed.
But second, and as you describe, this isn’t my war anymore. Not because my heart isn’t in it, but because I don’t believe we will win that war (or better, win the peace and move on) — even if we can win battles like this one — until the more basic corruption that is our government gets addressed. That’s the fight I have spent the last 4 years working on. That’s where I’ll be for at least the next 6.
Third, my going missing here is not something to miss. There is a world of fantastic and powerful new advocates here — my favorites include Fight for the Future and Demand Progress, and the just launched today, StopCensorship.org — and there remains the incredible gaggle of more traditional heros, including EFF and Public Knowledge. More importantly, there are crucial statesmen (and women) who are the rightful leaders on this fight — email Senator Wyden and Congresswoman Lofgren and thank them, please. If I have anything to contribute to these fights, I have contributed it again and again in writing and lectures. My lectures in this space are CC licensed (RSS); my books in this space are CC licensed (Remix, Free Culture, The Future of Ideas, Codev2, Code and Other Laws of Cyberspace). When your own writing gets called “derivative“ of your own writing, it is time to move on.
But fourth: I don’t think it’s fair to call the current project “quixotic and at worst as a Nader-like vanity project.” I’m not running for anything, and I’m not alone in this fight. There is an extraordinary range of powerful souls fighting now for this essential change — from Cenk Ugur’s WolfPAC, to Dylan Ratigan & Jimmy Williams’ GetMoneyOut, to the just launched United Re:Public, to the longstanding work of Americans for Campaign Reform, Public Campaign, Public Citizen and Common Cause. We are all working for the same fundamental change, as we are all convinced that until we achieve that change, this democracy will not work.
Of course, as my book, Republic, Lost: How Money Corrupts Congress and a Plan to Stop It (Twelve 2011), describes, this is an insanely difficult, possibly impossible, fight. But whether difficult or not, it is the fight that must be waged.
For this is what I know: We will never (as in not ever) win the war you care about until we win the war against this corruption of our Republic.
There is only one sacred text in this war: For every thousand hacking at the branches of evil, there is one striking at the root. So, please, Jeff: rally many many souls to those thousands. But please set aside at least some cycles to be one with that one as well.
