Please Oppose Article 13 – A creators perspective.

This is an email sent to my MEPs (Lynn Boylan, Brian Hayes, and Nessa Childers) today, regarding the proposed change to copyright in the EU, known as ‘article 13‘. This change will endanger the ability of small production companies and artists to disseminate their work online. It represents the greatest threat to free communication and creative work online in the history of the EU. You can find out more here or send your own email here.

Dear MEP,

You are no doubt receiving a lot of emails about the vote on article 13 of the proposed European Union Directive on Copyright in the Digital Single Market tomorrow.

I am a small independent filmmaker and radio producer. I’ve been developing original programming for radio and web in Ireland since 2008. My website which provides free copies of all my programmes is http://garethstack.com

I wanted to explain to you exactly how article 13 would affect my business and creative output. As a radio producer all of my programmes have been funded through the Sound and Vision Scheme and developed using creative commons assets and public domain assets. These sound effects and music are created by a community of engaged creators who allow their work to be further developed by others for free. This means that when I write and produce a new radio drama, some of the sound effects are original, some are derived and remixed – legally and with blanket licensed permission – from other sources, such as the website freesound.org.

Similarly, when I release my programmes, they are available for others to remix as they see fit. When I record original sound effects foley, they are made available for others to use in their films, TV or radio programmes or in their hobby projects, such as short films. These flexible licences empower creators to decide exactly how their work may be used – remixed with or without credit, shared only when the derivative work uses a similar licence, etc etc.

My shows have been broadcast numerous times on RTE Lyric, Newstalk and local stations throughout Dublin. They have won international awards, and been rebroadcast in the United States. None of them would have been possible to produce or release under article 13.

The legal requirement for automatic upload filtering systems would place an undue burden on free public domain and creative commons hosting services like freesound. More seriously, these systems invariably operate on the assumption that the first uploader to lay claim to a sound or piece of video footage is the ‘owner’ of that footage – irrespective of who originally created it, or what the actual licence under which it is released was. Again and again it has been demonstrated, on youtube, on soundcloud and other platforms, that this leads to widespread abuse. That automated copyright enforcement is both intentionally and accidentally used to remove completely legal clips and programmes. This has already happened to me. In a situation where the delicate web of hosting companies that allow online distribution – from wordpress, to soundcloud, to freesound, to bandcamp; are forced to implement these filtering solutions, businesses like mine will be impossible.

Small media creators – every single one of whom is reliant on both purchasing samples and using free samples; whether sound effects, video clips or music; will be unable to reliably host and distribute their original, legally created content. This will enormously impact the following industries and many others – music production, independent music distribution, film post production, podcasting, radio production etc etc.

This is my personal experience – as someone who has already had content removed incorrectly by automated content system. Systems which cannot be challenged without endangering the creators access to the platform. Systems which operate as black boxes where decisions are made without fair and equal access for creators. Systems that ‘big content’ conglomerates have direct access to ‘take down’ content they do not own, without consequence merely by laying claim to it.

This is not even the primary danger of such systems – which can be abused to limit political speech and to target contentious individuals or political groups. It is not the primary danger of article 13 – which will limit the ability to freely disseminate news and information.

It is however the element of article 13 which directly and immediately affects my livelihood and the livelihood of ALL of those working in the Irish radio and film industry, whether directly or indirectly, from actors to grips, from radio hosts to newspaper delivery drivers.

A regime like this will enable a small number of large conglomerates to lay claim to content they did not create, and to serve as gatekeepers for what is disseminated online. It will not help creators. It will not protect jobs. It is copyright law run amok in the service of corporations that exist explicitly and exclusively to exploit the creative work of others.

I ask you as my MEP to please oppose this legislation. As a voter, I will remember your actions on this issue which threatens my income, and more importantly the continued availability of every piece of work I have created in my adult life.

Thank you,
Gareth Stack

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Lawrence Lessig on the criminalisation of culture

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Lawrence Lessig has consistently been one of the most important figures in the debate over copyright reform, ‘piracy’, and remix culture over the last decade. He’s recently switched his energies to battling the corrupting effect of PACs, lobbyists and outright bribery in the US political system, so it’s rare these days to hear him talk about how the law is prohibiting the development of culture, criminalising creativity and creating and extremism on both sides of the debate. A development that Lessig argues, has led to the social normalisation of copyright infringement on one side, and to the legal persecution of thousands of otherwise law abiding citizens on the other.

Arguably, Lessig stands to the right of most of this generations creative community, but compared to the current legal prohibitions in place around the world, from the DMCA to the EUCD, he’s a leftist loon; and that’s how he’s frequently been portrayed in the media.

In these three video interviews with San Francisco’s ‘Booksmith‘, Lessig briefly outlines the moderate copyright reform position he advocates in his book ‘Remix: Making Art and Commerce Thrive in the Hybrid Economy’ .

More Lawrence Lessig videos..

TED 2007, How creativity is being strangled by the law
Google Lecture

Great Episode of ‘This American Life’ on Habeas Corpus

logo_chrisThis weeks award winning episode of radio show and podcast ‘This American Life‘, addresses the issue of Habeas Corpus. Broadly speaking, Habeas Corpus is the right of a prisoner to apply to be brought before a court to have the legality of their detention adjudicated. ‘This American Life’ examines how it’s suspension for detainees of Guantanamo Bay Naval Base, and in secret extraterritorial prisons run by the CIA, has effected their treatment. The episode includes eye opening interviews with two former inmates of ‘Gitmo’.

In addition to providing a predictably terrifying list of interrogation techniques in use against detainees accused of ‘terrorist activities’, from electrocution, to sexual humiliation, water deprivation and physical violence; and documenting how bounties offered for Al-Qaeda members led to the imprisonment of innocent civilians; this episode also describes a fascinating chapter in the history of Habeas Corpus.

John Ronson, an author and documentarist in the vein of Louis Theroux, takes a look at the suspension of this Magna Carta granted right, during the British restoration, an act which led to the impeachment of the Earl responsible (Lord Clarendon); and 450 years later, to an amicus curiae (friend of the court) brief to the US Supreme court, by All-Party Parliamentary Group of 175 members of the British parliament.

Compelling and disturbing listening.

Links: MP3, Transcript, Podcast Feed

Why a ‘Bloggers Code of Conduct’ is a bad idea

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Paul Walch of Segala, asks ‘Do we want a code for blogs?’

This question has arisen due to the Kathy Sierra controversy, the case of the online harassment of an O’Reily writer by an anonymous group of commenters, at a blog created specifically for uncensored criticism. Very quickly the ‘blogosphere’ divided into two camps, those who repudiated the hate speech directed at Sierra, but considered it a cost of the freedom of speech that blogging affords. And those, like tech writer and Web2.0 pioneer Tim O’Reilly, who believed a response was needed (beyond the specific legal retaliation sought against the perpetrators). O’Reilly’s proposal was a code of conduct for bloggers. Here’s the wiki for the code under development.

What follows is my response to Paul’s question, both in terms of the idea of a bloggers code of conduct, and the specific code O’Reilly proposes.

In short

Absolutely not, as Glen Farrelly points out, ‘good’ bloggers will follow their own individual codes regarding what they perceive as responsible behavior, ‘bad’ or ‘irresponsible’ bloggers will not follow any informal codes.

In detail

Apologies in advance for my inevitable mistakes in attempting to characterise Irish Law, a complex area in which I am not qualified to comment.

The blogosphere already has the means to deal with antisocial behavior, whether it be the denial of links to hate sites, or taking legal action against defamation. It could spell disaster if additional forms of policing emerge from within blogging, at a time when freedom of speech is being implicitly reduced through the dumbing down of media and the normalisation of embedded reporting; and explicitly prevented by anti scientific and religious extremist movements, by totalitarian governments (witness the insidious sousveillence built into the Chinese version of MySpace), and by the misuse of legislation regulating speech online.

Generally speaking, the blogosphere is a broad church with respectful members. A vanishingly small number of individuals abuse the anonymity blogging makes possible to besmirch others, beyond the acceptable realms of satire or parody. Their actions are to be repudiated, but should not be used as an excuse to sacrifice the freedoms enjoyed by all. Luckily, the centralised, intercommunicative nature of the blogosphere, means indubitably antisocial behavior is rapidly identified and denied an audience.

Copyright:

Adding copyright to the debate, as O’Reilly has done, appears an example of abusing a controversy for personal ends. Copyright and patent law are in a state of flux right now, and in a sense a culture war has developed. On one side neoliberals like the WTO and corporate lobbyists, are seeking to maximise copyright duration, and criminalize copyright infringement through legislation like IPRED2 in Europe and in the DMCA in the US. On the other, NGO’s like the Free Software Foundation, Creative Commons, the Open Science Project, and the Electronic Frontier Foundation, are developing methodologies for the open exchange and development of ideas; and seeking to defend fair use and ensure a viable digital commons.

This debate is far from over, and to seek to propose a set of guidelines for blogs, enforcing laws which in many cases have been imposed in complete contradiction with how the web has evolved, and the means by which humans most effectively proliferate knowledge and opinion, is both absurd and dangerous. Let me provide an example. In Ireland, where this blog is written (though not hosted), the legally allowable extent of ‘fair dealing‘ (equivalent to the concept of fair use), is more restrictive than in the United States. Under Irish statute, it may be literally illegal not merely to host copyrighted music (as the highly influential, promotional music blogs regularly do), or images (as most bloggers do to illustrate their articles), but also to quote small sections from newspapers, books, blogs or other material under copyright, as is almost universally done by blogs to illustrate a conversation. To quote Daithi MacSithigh (who I’m almost certain won’t sue), “Copyright violations are either legal or illegal – we don’t need a Bloggers’ Scout’s Honour Code to deal with things that people post.”

Defamation:

Defamation and liable laws are also much stricter in this country, with both the hosting company, and the owner of a blog liable, not merely for a blogs content, but for the defamatory content of its comments. This host liability is regularly misused by aggrieved companies, who have for example received a negative review of their products, to have entire websites preemptively removed with a solicitors letter. A practice described by TJ McIntyre, in the Sunday Business Post, as ‘a form of privatised and cheap censorship that’s quicker than going to court’. A ‘liable’ can consist of merely repeating published allegations. Just as I, in this very article, am repeating the allegations regarding the alleged threats to Kathy Sierra.

And lest you think that such legislation is a quirk of a wee country’s decrepit legal system, the same removal procedures frequently occur in the United States. When a hosting company receives a complaint under the safe harbor provisions of the DMCA, it can protect itself from liability if it ‘responds expeditiously to remove, or disable access to, the material that is claimed to be infringing or to be the subject of infringing activity’ (DMCA SEC. 202, Amendment Sec. 512, C, 1). Irrespective of whether the material in question is actually infringing. This provision is often used to deny access to (or delete outright) entire business or personal websites on the basis of unsubstantiated ‘takedown’ letters.

Chilling Effects:

Now Paul Walch is not proposing Tim O’Reily’s guidelines specifically, and Tim O’Reilly’s evolving guideline do no currently seek to extend copyright, or the reach of defamation law. However, the examples quoted above are just some of the chilling effects which emerge when codes, guidelines and ultimately laws evolve – with the reasonable goals of protecting individuals from harassment, and businesses from copyright infringement; and ultimately act to dilute sometimes necessary anonymity, erase criticism, and create artificial fences around the communication of ideas.

It is sheer naiveté to assume that if a bloggers code does emerge, complete with microformat tags and shiny PNG badges, it will not be used within censoring applications, such as those which are manditory in US schools and libraries, to restrict access to information. Or by autocratic governments to censor their own citizenry. Moreover, it is insidious to conflate such codes of conduct with labels declaring compliance to web standards and accessibility, or opt in licensing agreements like Creative Commons; as Content Label appear to be attempting. While creative commons licenses facilitate the controlled sharing of information by it’s creators, and accessibility guideline facilitate the widest possible access to information, a bloggers code of conduct can only ever reduce the freedom of expression which blogs facilitate, and if successful could act to ghettoise speech outside its defined framework.

What’s the use?

While O’Reilly’s code and similar initiatives will most likely fail to win enough popular support to become enforceable, it’s not beyond the realms of possibility that they will succeed enough (for example by becoming default options on blogger and typepad, or in wordpress installs) to endanger debate. Without an enforcing body they are effectively powerless (unless separately enforced by governments or third party filters), with the backing an enforcing group they have the potential to become the internet equivalent of the much criticised MMPA rating system.

Paul Walch says ‘I’m not trying to police the Internet‘, and I believe him. But when codes like the one currently proposed emerge, they fill a vacuum in the control of internet speech, and are eagerly supported by individuals and governments who seek such control.

One interesting question to ask is, would such a code of conduct have prevented the Kathy Sierra incident? Markos Moulitsas Zúniga thinks not, “1) There are assholes that will 2) email stupid shit to any public figure (which includes bloggers, but 3) that won’t be stopped by any blogger code of conduct”.

Interestingly, under Irish law, my quoting Zúniga technically infringes copyright, thus violating O’Reilly’s proposed code – ‘We define unacceptable content as anything included or linked to that.. infringes upon a copyright or trademark’.


Creative Commons photo by Marie Richie. Attribution-NonCommercial-ShareAlike 2.0