Now we’ve released a new album and a couple of new videos. But the fans and bloggers who helped spread “Here It Goes Again” across the Internet can no longer do what they did before, because our record company has blocked them from embedding our video on their sites. Believe it or not, in the four years since our treadmill dance got such attention, YouTube and EMI have actually made it harder to share our videos.

[...]

But this isn’t how the Internet works. Viral content doesn’t spread just from primary sources like YouTube or Flickr. Blogs, Web sites and video aggregators serve as cultural curators, daily collecting the items that will interest their audiences the most. By ignoring the power of these tastemakers, our record company is cutting off its nose to spite its face.

The numbers are shocking: When EMI disabled the embedding feature, views of our treadmill video dropped 90 percent, from about 10,000 per day to just over 1,000. Our last royalty statement from the label, which covered six months of streams, shows a whopping $27.77 credit to our account.

And there is much more good stuff in the article, but I don’t want to “take” more than my fair use quote from the NYT, so you can read the whole thing there.

The Bird Song

Which leads me to the “Bird Song.” This is what my daughter calls the music video for “Bathtime in Clerkenwell,” by The Real Tuesday Weld.

I first encountered this band and video in late 2008 at the web site of Dave Winer. (More accurately — and aptly for Dave, “the father of RSS” — I would have found this in my feed reader.) He gave it no introduction other than the post title of “Bathtime in Clerkenwell.” There was just an embedded YouTube video. The black and white still image of a cartoon bird caught my eye, I clicked on the play button, and I instantly loved the wonderful absurdity of the animation and the nonsense vocals. I followed the trail back to The Real Tuesday Weld’s official YouTube channel and found other great videos there, including “Kix.”

In turn, I published a couple of posts embedding the Clerkenwell video and others, to which at least one person enjoyed them enough to comment on, and I hope I might have spread the word to a few others as well.

Fast forward to November of 2009 when I was doing some maintenance on my site and noticed that embedding had been disabled for both the Clerkenwell video and for Kix. Not that my old posts were getting traffic anymore, but I like things to be current and functional, so it was an annoyance.

And it was perplexing. Why make it harder to share this stuff? It’s out on the Internet already, why not make it as convenient as possible for people to view it? Had Dave not embedded the video on his site, there is a good chance I wouldn’t have followed a link back to YouTube to see it there. But since I was already scanning his feed, it was easy to try.

I updated my posts with notes about the dis-embedding and encouraged people to make the trip to YouTube to check out the videos. It was worth all that effort of clicking on the link, I figured.

Get Off My Lawn

Now fast forward to this month, and when I visit the official YouTube page for “Bathtime in Clerkenwell,” I get: “This video contains content from UMG. It is no longer available in your country.”

I guess one promotional theory is that it’s a good idea to hide things under a rock.

Or, maybe it would be better to see the videos as advertisements. As seeds. Planted out there on the Internet and eventually bearing fruit. For example: Despite this foolishness, I’ve recently purchased three albums by these guys. I love the music. But I might not ever have found it without embedding and easy sharing.

Thank you, Stephen Coates. I’m enjoying your art. I would have embedded at least one video with this post to try sharing the love forward, but your business partners don’t want me to do that.

Update, 15 March 2010: And now the word can be spread! For today, anyway. Our voice has been heard.

Bathtime in Clerkenwell

Kix

(free photo!)

Someone might ask: “How will artists make a living in this la-la dreamland of sharing and cooperation and free love? How are we going to pay people to make all this great content to which you feel entitled?”

Well, I’m not 100% in love with your tone there, Mr. Someone, but one way of paying for free is to go back to the good old days of patronage. Paying artists directly to produce art. But in these good new days of the Internet, we don’t need kings, rich merchants, and other well-to-do types to commission the work. The Internet enables us little folk to cooperate and support creative work. We can be micropatrons of the arts.

Micropatrons, not Micropayers

I’d like to disassociate micropatronage from micropayments. Micropayments have gotten a bad wrap, for good reasons. I don’t want all that decision-making overhead in my day to day browsing, to pay pennies for this or that web page I come across.

However, there are people out there who’s work I support and want to encourage, and I would happily make some kind of micro-arrangement to help fund their work, especially if they agree to publish under a free license. Here’s where we need established ways of exchanging money for art. In particular, we want to aggregate a lot of small payments to commission the work of the artist.

Fund and Release

There are already people making money from free art, and mechanisms to support this. For example, with “Fund and Release,” or threshold pledge systems, an artist will promise to create something for a given price. Maybe a book or an album, but it could be anything. A middleman will collect pledges for the promised work, and when the required amount is collected, the work is released and the artist paid. (Another term for this is the “Ransom Model,” although that sounds rather antagonistic.) If the artist’s target amount is not met by a certain date, the money is refunded to the project’s backers. This allows a potential patron to pledge their money with the assurance that they will only pay for the work if others share in the commissioning, and the work is finished and released.

One site that offers a fund and release service is Kickstarter. I found it in relation to Robin Sloan’s book writing project. I don’t think Robin has specifically promised to release his book under a free license, but in any case, as of today, he has received a total commitment of $10,000 to write and publish a short book. (He has specified a novella length of 30,000 words.)

In reading about the publishing industry, I’ve often seen a figure of $5,000 for an advance on a first novel, and that most first novels don’t earn out their advance. So, Mr. Sloan provides us one example of modern day patronage in action, with good results. (Or at least, comparable results to traditional publishing.) It may be an atypical example of funding and releasing, but then, getting any money at all for a novel has always been unlikely.

Other Ways

I think threshold pledges will grow in popularity and enable compensation for free culture production, but that’s just one of many possibilities. Another common technique is to give away the “content” and sell associated scarce goods, like music performances or personal appearances or limited-edition physical copies of the work.

And there are other models to look at and experiments to try. Different methods will be better suited to different kinds of production. All of this has been to introduce another micropatronage-enabling model currently under development, and one that supports payment for something near and dear to my heart: blogging!

But alas, we’ve run out of time and space today. Please stay tuned for more later about an exciting opportunity to help test a new “paying for free culture” service.

It’s a beautiful day in the network. Won’t… you be.. my micropatron.

There’s a boy a year ahead of me named Peter Jones who some of the kids say is the best guitar player in school. He has this reputation because apparently he can play the intro to “Move It,” which is a hit by Cliff Richards and the Shadows, but he won’t show it to anybody, so I get friendly with him with the ulterior motive of capturing the lick. We get chummy and one afternoon after school he invites me to his house to have a session in his mum’s front room. We play for half an hour, strumming along in unison on the simple chords that we know, and then I ask him if by chance he knows the intro to “Move It.” Oh yeah, comes the nonchalant and unsuspecting reply. He quickly rips it out, a very simple double stopping in fourths on the E and B strings ending on the E major chord. It’s a knockout, this simple lick that seems to contain everything for which I lust: the blues, sex, glamour, electric guitar, and the far-off shores of America. But casually, as if I already vaguely know it, I say, “Oh, I get it, yeah–now I remember,” for now that I have seen it, I possess it, and a new guitar door opens with the light of heaven pouring through.

–Andy Summers, One Train Later: A Memoir

What great imagery around the lusting and the possessing and the light! And it’s so illustrative of Jefferson’s argument:

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.

–Thomas Jefferson, letter to Isaac McPherson, 13 August 1813

Ideas. Guitar licks. Just about anything digital. Our culture. We’re talking about infinite goods, around which some people would like to build walls of artificial scarcity. (Do you suppose the light of heaven is similarly losslessly shareable?)

• Culture builds on culture.
• We share this common culture.
• Copying is natural and is a good thing.
• We should be free to copy and modify and share our culture.

Compensation for adding to our existing shared culture is a separate discussion. Nina Paley just wrote a great post about this, responding to the statement: “Artists Should Be Compensated For Their Work.” I highly recommend it.

That sounds like a good start at defining free culture, and is something I agree with. Copyright is a privilege that has been over-extended and is abused by many of those who hold copyright on artifacts of our culture. I am very much in favor of creative people earning rewards for their work if it is valued by others, but I don’t think the way to do this is to grant exclusive rights to the work for 100+ years.

Industries that rely on the intellectual monopolies of copyright and patents will have to adapt. There will be losers in the transition to a world of decriminalized file sharing (non-commercial, at least), but that isn’t a reason to keep the old ways. Effective copyright enforcement would require an intolerable control regime over our personal computing devices, and would take away precious freedom, digital and otherwise. And consider the effect on privacy:

File-sharing occurs whenever one individual sends a file to another. The only way to even try to limit this process is to monitor all communication between ordinary people. Despite the crackdown on Napster, Kazaa and other peer-to-peer services over the past decade, the volume of file-sharing has grown exponentially. Even if the authorities closed down all other possibilities, people could still send copyrighted files as attachments to e-mails or through private networks. If people start doing that, should we give the government the right to monitor all mail and all encrypted networks? Whenever there are ways of communicating in private, they will be used to share copyrighted material. If you want to stop people doing this, you must remove the right to communicate in private. There is no other option. Society has to make a choice.

–Christian Engstrom, Copyright laws threaten our online freedom

Question copyright! Check out this great essay by Karl Fogel about the history of copyright and the promise of a post-copyright world.

Related

• Free Software (Briefly)

It was music to my ears, coming from someone enjoying success (financial and otherwise) with their blog and their writing, and it really showed that he “gets” Free Culture. Since then I’ve subscribed to Leo’s blog and have found many things to inspire me there.

Given Leo’s generous and enlightened attitude about his own work and the importance of sharing freely, it made his post from yesterday even more disappointing. In “Feel the Fear and Do It Anyway (or, the Privatization of the English Language),” Leo starts:

Today I received an email from the lawyers of author Susan Jeffers, PhD., notifying me that I’d infringed on her trademark by inadvertently using the phrase “feel the fear and do it anyway” in my post last week, A Guide to Beating the Fears That Hold You Back.

The phrase, apparently, is the title of one of her books … a book I’d never heard of. I wasn’t referring to her book. I’m not using the phrase as a title of a book or product or to sell anything. I was just referring to something a friend said on Twitter.

Her lawyers asked me to insert the (R) symbol after the phrase, in my post, and add this sentence: “This is the registered trademark of Susan Jeffers, Ph.D. and is used with her permission.”

Yeah. I’m not gonna do that.

I find it unbelievable that a common phrase (that was used way before it was the title of any book) can be trademarked. We’re not talking about the names of products … we’re talking about the English language. You know, the words many of us use for such things as … talking, and writing, and general communication? Perhaps I’m a little behind the times, but is it really possible to claim whole chunks of the language, and force people to get permission to use the language, just in everyday speech?

Pretty much the same kind of idiocy that you read about every day on Techdirt, I guess, but it still has the power to irritate me. What a load of crap. I’m happy to see Leo dismiss the threat. I hope he doesn’t face any more harassment or intimidation over this.

I’m not going to give this woman’s book the time of day to find out what it’s about, but I imagine she’s trying to empower her readers to work through their fears. I wonder how she might counsel me and my fear of the crippling effects of an ever expanding “intellectual property” regime? What of my fear that free expression and creativity will be stifled by the threat of lawsuits and legal fees?

Perhaps she would say: “Feel the fear and cave in to my petty bullying.”

The Power of Less

On the subject of Zen Habits, take a look at Leo’s new book, The Power of Less. I don’t see where this one is freely available in digital format yet, but I imagine it will be, eventually. I may have to buy a copy to support The Power of Free.

(Note: Amazon affiliate link uses Zen Habits’ tag, so kickbacks will go to Leo.)

There is so much great stuff on the Internet that you might despair of all that you will never see. But then there are the gems you find.

For example: Thru-You.

Kutiman, according to Wikipedia, is an Israeli musician, composer, producer, and animator. And he has made something wonderful for which I’m very grateful.

This is the first of a collection of songs that Kutiman created by mixing together clips of people singing and playing instruments on YouTube:

Kutiman, Mother of All Funk Chords

The artistry in weaving together these songs out of the cacophony of YouTube is extraordinary. The song above credits and links to 22 different videos. It’s interesting to look at the source videos. They range from mundane to very good on their own, and I just can’t get over Kutiman’s creativity in making something so beautiful from them. The audio and visual presentation is stunning. How do you find and piece all that together in a coherent way?

I missed this one at first. I seem to remember passing over something about it one day when skimming through my feeds, but I got another chance when Crosbie Fitch posted Art Outlaws Without Lawful Reward.

Mike Masnick at techdirt (linked above) and Crosbie both have good commentary (as usual) about the copyright implications. For me it’s yet another example of why artists must be free to do this kind of work. Kutiman is an amazing artist. The thought that he could be prevented from making these songs, or that they could be forced down because of claims by the “rights holders,” is intolerable. Okay: maybe not intolerable, but it is awful that our current copyright law puts this kind of expression at risk.

The individual contributors to this art are conscientiously credited at the Thru-You website and on the YouTube pages, and I think that’s all that is called for. They uploaded their bits to YouTube, where a brilliant creative mind found and collected their work to create something new. Something exciting. Internet-enabled synthesis, art born out of the multitude expressing themselves and sharing with the world. I want to see and be inspired by more like this, and read less about the hindrance of copyright.

I urge you to check out these songs, and to explore some of the source material. Like this unassuming snippet of trombone playing:

Estudo em Fa Maior – Thiago Soares – Trombone

Which takes on a haunting significance in Thru-You #2:

Kutiman, This Is What It Became

I enjoyed reading (and contributing) some of the comments on the source videos from people who discovered them through Kutiman’s remixes. What I’ve seen so far has been complimentary. It’s neat that the videos have taken on a new life. I hope that the individual performers are enjoying the attention brought on by their unexpected participation in such a fun project.

I was happy to share my Hawaii vacation pictures under the Creative Commons Attribution-ShareAlike license, but it occurred to me that I may not have the legal right to do so for several of them.

Three were taken by my wife, but I’m pretty sure she’ll go along with me on the licensing choice.

Two of the pictures I placed online were of my wife and me together, and these were taken by random bystanders. Since I neglected to bring copyright assignment forms to be filled out and signed in triplicate, I think that means the copyright belongs to those unknown — and by now almost thoroughly unknowable — people.

Since they agreed to take the pictures, it seems safe to suppose that they consented for them to be captured to the memory card on the camera, but I don’t know if we can assume they would give permission for me to copy them to my hard drive, to CD, and to print them, send via email, or display them on the Internet. I certainly doubt that by taking the photos we can assume they were assenting to the liberal terms of the chosen Creative Commons license.

Maybe we can argue that by handing someone the camera and choosing where we stand, we are sufficiently involved in the composition of the photograph that we are joint copyright owners of the photo?

In any case, doesn’t it seem awkward and uncomfortable, these contortions that our copyright law forces us into?

However, this situation illustrates my carelessness with attribution. Although I believe the photos should be free as in free speech, I also believe in providing proper attribution, and I neglected to do that here. But it seems that this is the expected fate of the conscripted tourist photographer.

If a wiki site exercises the relicensing option, that entails trusting Creative Commons rather than the Free Software Foundation regarding its future license changes. In theory one might consider this a matter of concern, but I think we can be confident that Creative Commons will follow its stated mission in the maintenance of its licenses. Millions of users trust Creative Commons for this, and I think we can do likewise.

Sounds like a strong endorsement from someone with demanding standards.

<SALES_PITCH>

And seems like an opportunity to shill for donations to Creative Commons. They are running their annual fundraiser right now, and for $50 ($25 for students) you can become a member of the CC Network, which allows you to sport a button on your web page to proudly show your support (and link to your CC Network profile page):

And, I think you get a USB-drive with CC songs from Jonathan Coulton. (Code Monkey like Tab, Mountain Dew, and Free Culture.)

And more.

And it’s tax-deductible!

To help Creative Commons in a non-monetary way, you can participate in a questionnaire about understanding non-commercial uses of content. I think it took me 10-15 minutes to complete. They need responses by December 7. (Update: Extended to December 14.)

And let’s not forget the FSF

Final pitch. If you’re in the giving mood: become an associate member of the Free Software Foundation. They’re also in the market for donations, and you get another attractive Badge of Freedom:

And it’s tax-deductible!

These two organizations do tons to promote free culture and free software. If these things are important to you, please consider giving what you can to help them continue in their missions.

</SALES_PITCH>

I was excited yesterday to hear about a new book, The Public Domain: Enclosing the Commons of the Mind. (Also mentioned in a Creative Commons blog post.)

I wasn’t familiar with James Boyle and his work, which is disturbing, because it seems like I should already have been a fan of such a free culture luminary. He has lots of good things to say on the topic. (I’ve since tried to remedy my negligence by adding him to my “Free Links.”)

The book is available for free online under the Creative Commons Attribution Noncommercial ShareAlike License. After downloading it and reading through part of the first chapter, I ordered the paper copy from Amazon.

I fully expect it to reinforce my beliefs and give me some good talking points about the value of free culture and the public domain. I think it will also challenge me to think about the subject in a more rounded and nuanced way. And I hope also that it successfully influences people outside of the choir. You can see for yourself! Check out the book’s website. (Where you will find an interesting article about the book’s cover and the contest that produced it.)

One thing I liked in the first chapter was his discussion of the term “intellectual property.” Whenever I see this, my RMS radar beeps as I think about Richard Stallman’s rejection of the term and his insistence that copyright, patents, and trademarks be considered as separate items. While I admire Richard’s rigor in discussing things clearly, I don’t agree that the label has no value. So I liked this thoughtful passage as a counter:

Some readers will find my use of the term “intellectual property” mistaken and offensive. They will argue, and I agree, that the use of the term “property” can cause people mistakenly to conflate these rights with those to physical property. (I outline that process and its negative consequences in the next chapter.) They will argue, and again I agree, that there are big differences between the three fields I have described. Should we not just list the specific rights about which we are speaking—copyright, patent, or trademark? Both of these concerns are real and well-founded, but I respectfully disagree with the conclusion that we should give up the term “intellectual property.”

First, as I have tried to show above, while there are considerable differences between the three fields I discussed, there is also a core similarity—the attempt to use a legally created privilege to solve a potential “public goods problem.” That similarity can enlighten as well as confuse. Yes, copyright looks very different from patent, just as a whale looks very different from a mouse. But we do not condemn the scientist who notes that they are both “mammals”—a socially constructed category—so long as he has a reason for focusing on that commonality. Second, the language of intellectual property exists. It has political reality in the world. Sometimes the language confuses and misleads. There are two possible reactions to such a reality. One can reject it and insist on a different and “purified” nomenclature, or one can attempt to point out the misperceptions and confusions using the very language in which they are embedded. I do not reject the first tactic. It can be useful. Here, though, I have embraced the second.

–James Boyle, The Public Domain, Chapter 1

Ice House ruins in Tyler, Texas
photo by Terry Shuck (crowt59)

I can’t remember when or how I first found Terry Shuck’s work on Flickr, but I immediately became a fan of his photography. It appears that he uses HDR techniques quite a bit, although I can’t tell what all magic he summons with different lens and filters and whatnot.

I liked that he often shared his images under Creative Commons licenses, including the liberal Attribution license which allows for commercial reuse. It was for this reason as much as anything that I subscribed to his photostream. It’s good to find kindred free culture spirits. But then he increasingly released new photos under standard copyright with “All Rights Reserved,” and I soon unsubscribed.

For random things that I stumble across on the Net, “free” has the edge in keeping my attention. When I find good, freely licensed work, I want to share it and spread the word (or the image!). For example, I had used one of Terry’s photos, “Old Ice House Chamber Door” in this post, where I linked to its Flickr home. I recently visited that page, and was surprised to find it now encumbered as “All Rights Reserved” where it had previously been licensed as CC Attribution. And there are no longer larger images available; there’s just the 334 x 500 version you find on the landing page.

Hmmm

I had saved a handful of his photos to my hard drive, and checking another one, it also had been “taken back.” I left a comment on the one photo, pointing out this change in licensing. Terry’s work receives lots of comments on Flickr and this picture was posted almost a year and a half ago, so I didn’t expect much in the way of a response, but he sent me an email thanking me for my comment and saying, “Yes I had to change the rights as I started finding my photography being used without my permission for advertising and other professional media.”

Which is very interesting. Perhaps the photos were being used without attribution, which would be wrong, but it seems as likely that he decided he didn’t like the consequences of free licensing. The CC Attribution license doesn’t call for permission to be granted beyond the permission inherent in the license itself. And it doesn’t forbid commercial use.

Of course Terry is free to choose his terms and take advantage of the existing monopoly available under copyright. It’s disappointing to me, because I’d rather see people choosing freedom. But I can also understand the desire to make money from creative work, and it’s true that restricting sharing may increase revenue opportunities.

It may also hinder those opportunities, by making it harder for people to share the work and attract more attention and fans. Now that all of his work is (apparently) released under standard copyright, and only small images are available, other people may be similarly less-inclined as I am to follow and promote him and his work. This post notwithstanding. And not that I think my meager posts constitute a huge boost to Mr. Shuck’s career.

Free Culture Pedigree

The situation raises questions about the provenance of free culture artifacts. How do we establish the freedom of a work when its source no longer grants the previous liberty? It’s my understanding that Creative Commons licenses are irrevocable. If you receive a work under a free license, you will always have the right to use and share it under the original terms. Without that permanence, free culture wouldn’t be free at all.

But it feels kind of shaky when the original artist has taken away their blessing. How do I prove that I received this work under a free license? I do have larger versions of the photos that are no longer available, but that doesn’t prove anything. Taking screen shots of the earlier page or downloading the HTML source would be not only cumbersome, but even worse proof, given that they could be easily modified/faked.

Think about all the photos available on Flickr. (Millions?) Along with many others, I’ve often mined the Flickr vein for images to accompany my posts, using the advanced search specifically to look for free images. Should Flickr track license choices and make public a “licensing change log” for each photo page? And what about all the other sites out there, including this one? If movingtofreedom.org went dark tomorrow, where would that leave the status of all my priceless free work?

It would help if we weren’t burdened with copyright law that by default makes the enjoyment and sharing of our common culture so tedious. But even then, even if free culture became more of the norm, we’d still have the challenge of proper attribution, which I believe is much more important than securing an unworkable monopoly that lasts forever on the copying of digital bits (or of analog atoms, for that matter). But I think most people are happy to provide attribution, which makes it a much smaller problem than the huge problem of how to prevent copying and sharing when they are the most natural and easy things to do in the world.

Related

• Crosbie Fitch has more to say about this: The Fickle and Fleeting Freedom of a Creative Commons License