The Mandelbear's Musings

So for non-lawgeeks, this won't seem important. But trust me, this is huge.

I am very proud to report today that the Court of Appeals for the Federal Circuit (THE "IP" court in the US) has upheld a free (ok, they call them "open source") copyright license, explicitly pointing to the work of Creative Commons and others. (The specific license at issue was the Artistic License.) This is a very important victory, and I am very very happy that the Stanford Center for Internet and Society played a key role in securing it. Congratulations especially to Chris Ridder and Anthony Falzone at the Center.

In non-technical terms, the Court has held that free licenses such as the CC licenses set conditions (rather than covenants) on the use of copyrighted work. When you violate the condition, the license disappears, meaning you're simply a copyright infringer. This is the theory of the GPL and all CC licenses. Put precisely, whether or not they are also contracts, they are copyright licenses which expire if you fail to abide by the terms of the license.

Important clarity and certainty by a critically important US Court.

filkertom

A couple of days ago, one of my CD customers asked me to confirm that it was OK for him to have put one of my tracks on a mix CD that he'd sent to 20 friends for Christmas. I assured him that it was perfectly OK, and told him, "fair use is free advertising." And besides, it's not even fair use, but explicitly authorized under the Creative Commons attribution, non-commercial, share-alike license , extracts of which are actually printed inside the jewel case.

It has come to my attention that the RIAA is now trying to claim that ripping songs from a CD and putting them on your hard drive is "unauthorized copying" and strongly imply that it's illegal. Here's another article. filkertom mentions it in this post -- he apparently got a similar query in email from a fan. He replied, in part,

I think the RIAA is full of shit on this. It's yet another avenue they're trying to close, another way they're treating customers like criminals.

My position is very simple: If you got the music from me (or an authorized dealer, e.g., Bill & Gretchen, Juanita, CD Baby, one of the digital distro sites that carry a few albums) legally, for your own use, you can do what you want.

I ask that you do not copy them and pass 'em around to people [...]. I insist that you do not copy them and sell them to people. I do not allow you to pass off my work as yours, or to sample it without permission for profit.

I go a little farther, because 20 friends with a copy of High Barratry on a mix CD are 20 more people who have my name and can easily figure out where they can buy my CD.

It's particularly appropriate that the song in question is about SCO, another company that had the brilliant idea of suing their customers when their business model started failing because of competition from free goods on the Internet. They're currently in Chapter 11, and their stock is now worth about a dime a share, on a good day. It's an open question whether they'll make it to 2009.

Computerworld's IT Blogwatch posting yesterday points to a prediction that the RIAA won't make it to 2009, either. BoingBoing points out that, like SCO (which used to be a Linux distributer called Caldera), the RIAA has changed its tune about the legality of fair-use copies. In any case, SCO and the RIAA appear to be headed down the same road, in matching handbaskets.

I have an idea: let's help. If you ever get a letter from the RIAA claiming that making personal copies of my CD, Coffee, Computers, and Song, is "unauthorized" or "illegal", send me a copy. Because I would just love an excuse to sue their ass for product disparagement, slander of title, unfair business practices, barratry, and anything else a clever lawyer can cook up.

But say it does come to pass that electronic books are all anyone wants.

I don't think it's practical to charge for copies of electronic works. Bits aren't ever going to get harder to copy. So we'll have to figure out how to charge for something else. That's not to say you can't charge for a copy-able bit, but you sure can't force a reader to pay for access to information anymore.

This isn't the first time creative entrepreneurs have gone through one of these transitions. Vaudeville performers had to transition to radio, an abrupt shift from having perfect control over who could hear a performance (if they don't buy a ticket, you throw them out) to no control whatsoever (any family whose 12-year-old could build a crystal set, the day's equivalent of installing file-sharing software, could tune in). There were business models for radio, but predicting them a priori wasn't easy. Who could have foreseen that radio's great fortunes would be had through creating a blanket license, securing a Congressional consent decree, chartering a collecting society and inventing a new form of statistical mathematics to fund it?

Predicting the future of publishing--should the wind change and printed books become obsolete--is just as hard. I don't know how writers would earn their living in such a world, but I do know that I'll never find out by turning my back on the Internet. By being in the middle of electronic publishing, by watching what hundreds of thousands of my readers do with my e-books, I get better market intelligence than I could through any other means. As does my publisher. As serious as I am about continuing to work as a writer for the foreseeable future, Tor Books and Holtzbrinck are just as serious. They've got even more riding on the future of publishing than me. So when I approached my publisher with this plan to give away books to sell books, it was a no-brainer for them.

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