History of Copyright as Researched by a Web Comic Artist

If you are familiar with Wondermark then David Malki’s keen eye for interesting oddbits of history will come as no surprise. His interest in copyright is not surprising either as much of the artwork he uses comes from the public domain.

Both of these interests have clearly come together in a new post on his blog. It is the first of a promised series of historical research posts delving into the antecedents of modern debates around intellectual property. Malki provides further proof of what I’ve found to be true in my own historical research, than none of the arguments being leveled are really new. The forces–in the market, in policy and stemming from behavioral norms–have all existed pretty much since the birth of copyright.
Whether you are a copyright nerd, like me, or want to understand the broader context of SOPA/PIPA, Malki’s writings here are well worth a read. If you subscribe to Wondermark, you should see the promised next in the series too.

First Sale Doctrine Eroded by Ruling over Watches

I am a bit at a loss to understand what a copyrighted logo on a watch has to do with our engine of free expression. As Matthew Lasar at Ars Technica explains, it factors into a new Ninth Circuit ruling involving CostCo’s sale of Omega watches sourced from a distributor other than the watchmaker itself.

What really makes my head hurt is that this issue has been tested before, with the opposite result, that the first sale doctrine did indeed apply to goods purchased outside of the US. If you can follow the historical case and the twisted logic this newer case uses to slip past precedent, you are smarter or more dedicated than me.

As the amicus briefs from EFF and PK are quick to point out, commerce increasingly knows fewer borders. We’ve especially seen manufacturing take flight from the US for parts of the world where labor costs yield a fatter bottom line. The implication is that the likelihood of this sort of complaint arising again is actually higher than you might think hence this is a more dangerous precedent than it might otherwise seem.

Since this is a copyright ruling, I am very concerned about how this erodes the first sale doctrine, an important limitation on copyright in the US. I guess this is to be expected, consistent with an increasingly market-centric interpretation of copyright. I am worried, not just by this turn of events but by the trend in general, over the future of copyright’s compatibility with free speech concerns if all our limits and exceptions are mowed under in service of trade and licensing.

A Book Review of “Property Outlaws”

Michel Bauwens at the P2P Foundation links to and exercepts a review of the book, “Property Outlaws: How Squatters, Pirates and Protesters Improve the Law of Ownership” by Professors Eduardo M. Penalver and Sonia Katyal, post by David Bollier at On the Commons. Bollier is no stranger to the spaces outside of property law, having written “Viral Spiral“. Bollier’s book has been on my list to read since it came out and I am pretty sure I already added “Property Outlaws” based on a previous recommendation.

The actions of big content, often over reaching and clumsily inflicting collateral damage, make it easy on one level to lionize the pirates. The Pirate Party has made much out of this response in advancing a pretty sophisticate platform predicated on what they view as necessary reform. Reading through Bollier’s remarks the copyright pirate is plausibly part of a larger trajectory that charts the progression of how property law is drawn and redrawn based on changes in norms. There is an apt neologism here, “altlaw”, that dovetails with other discussions I’ve read emphasizing the importance of limits and exceptions on copyright, such as Boyle’s very engaging “The Public Domain“.

Protests against private property are a conspicuous form of social and political communication, note Peñalver and Katyal, because they enable people to “send a message” that is not effectively communicated otherwise. That was the point of the Woolworth lunch counter sit-ins, and that was the point of anti-globalization protesters smashing the windows of Starbucks stores. “There is a difference between talking about something and being confronted with an actual example of it,” write Peñalver and Katyal.

Heady stuff. I may just have to pull this one to the top of my reading queue, past some less provocative but no doubt equally enjoyable titles in the broader space of the history of copyright and the current debate around the need for reform.

The History of Unintended Consequences of IP Terrorism

A few people posted a link to this Washington Post guest editorial by Adrian Johns.  Johns has a new book out, “Piracy: The Intellectual Property Wars from Gutenberg to Gates,” published last month by University of Chicago Press. Johns is a professor of history at the University of Chicago and chair of the Committee on Conceptual and Historical Studies of Science.

I of course like that Johns’ book digs into the cyclical nature of the copyfight as played out since the very first statute passed to grant a monopoly to the earliest printers.  While the medium, digital files, may be radically different from movable type, the rhetoric, sides and issues haven’t really changed.

Johns exposes an aspect I haven’t seen discussed before though.  Specifically that the perpetration of IP Terrorism (a term coined by Jan Wildeboer which I instantly liked) is as as old as any other aspect of the evolution of copyright.  Further the histories he shares give cause for encouragement in the form of past efforts in this vein yielding considerable backlash, usually in the form of legislation but also as considerable damage in public opinion.

Johns doesn’t take this outcome for today’s clash as a foregone conclusion.  He emphasizes core principles of which past copyright expansion has run afoul.  It is unclear if those values are strongly appreciated enough to trigger yet another re-definition of intellectual monopoly.  Past reshaping of intellectual monopoly has typically restored a better balance between rights and public interests.  He poses the question of whether such a change is contours is possible today.  This is a key question we need to consider very seriously to focus our efforts as activists.

I’d add there may be one genuinely new wrinkle to factor into the present equation in the form of laws like the DMCA, DEB and trade agreements like ACTA.  That is the ability for rights holders to effectively grant themselves new rights through essentially private laws built on anti-circumvention measures and now potential obligations placed on ISPs.  I see the potential for a much more severe backlash in the face of these but it still is unclear how to incite such a vital response.

Vintage Music Piracy Device, The War for the Web, and More

  • Charter for Innovation, Creativity and Access to Knowledge
    Michel Bauwens posted this announcement at the P2P Foundation blog. In looking over the site to which he links, the details of the charter reads like my own personal laundry list of ideal goals in this arena. The members so far is a liberal mixture of groups and individuals.
  • The war for the web
    At O’Reilly Radar, the site’s namesake, Tim himself, pulls together some recent and not so recent stories from around the web to continue the discussion of appliancized devices and walled gardens. This is an interesting variation on Zittrain’s hypothesis in his last book, but O’Reilly looks at potentially escalation competitive pressures between giants, rather than the direct constraining of consumers by those same giants in the name of security.
  • Interactive tutorial for advanced JavaScript
    Jon Gruber at Daring Fireball links to this tutorial by John Resig. I am increasingly enjoy these sort of browser based, interactive sandboxes that vastly lower the cost to simply experiment with something new. In this instance, the tutorial is also an advanced peek at Resig’s forthcoming book.
  • Two new projects and a tour for the Web Foundation
    As RWW points out, the well known and respected creator of the Web, Sir Tim Berners-Lee is on tour through Africa as part of fund raising for the Web Foundation that he founded last year to work on issues of the digital divide. The two specific partnerships this drive is meant to help are around re-greening efforts and youth education.
  • Vintage music piracy devices
    I really love stories from the history of copyright that can help illuminate the discusses and challenges with which we grapple today, in the midst of this digital revolution. These diagrams that Cory shared on Boing Boing of 19th century record duplicators is genuinely novel to me, showing not just the practice and norms of piracy stretching back but also the technology.
  • Clarifications on Microsoft’s “sudo” patent
    Trusty Ryan Paul has done some excellent investigation, including reading into the body of the patent, something which I wouldn’t have had time. In addition he contacted the sudo maintainer to get his opinion. The results he posted at Ars is that the patent probably has no bearing on the command line tool itself but may on the more recent development of the user interface for PolicyKit and similar GUIs used in the Linux desktop.
  • Service provider backing up source search
    RWW has a pretty good profile of an outfit aiming to become to search what Red Hat is to Linux. Search here however refers to custom search, behind a prospective company’s firewall, not general web search. While the increasing traction of projects like Lucene, of which I am a user and a fan, is excellent news, I was hoping this piece would be discussing a moral successor to Wikia, bracketing Google and Bing in its sights.