Chris Lott

[photo by Éole]

[Part 2. See: Part 1]

What I would not like to see emerge from the BNN imbroglio is a movement supporting the addition of even more restrictions to an overly-confining copyright system that is already heavily slanted towards one class/kind of creator and their sometime corporate backers/users. Copyright law has already gutted what should have been the richest information commons we have ever seen by imposing restrictions that are ridiculously extreme in both form and length. Adding objections to systems which provide added value by making use of (the already too limiting) Fair Use provisions to the vast repertoire mass media interest use to enrich themselves at the expense of the entire creative culture seems precisely the wrong way to go.

It’s perfectly OK with me that Fair Use provisions allow people to make a profit by building on the work of others. Without such a system we would have to do without many useful publications and artifacts: from scholarly criticism and review that must cite from sources to be useful, to indexes and concordances which owe their existence solely to the original work(s), to news and content summary and analysis services and publications used by a variety of people and businesses.

Further, figuring out ways to quantify and share the value of attention and respect paid to words and work by readers is a fundamental need that comes as part of the explosion of the new social, participatory web. Sites which provide added value to and through existing works based on reputation, attention, suggestion, and various social acts of consumption and sharing are a key to the humanized network we are all living in.

That profit on these activities can be accrued by people I don’t like and/or in service of philosophies I don’t subscribe to– or even used in a profit-free way by and for the same– is immaterial in the same way that the content, philosophy and speaker is immaterial to their right to be protected by the tenets of free speech. Which means there are limits, but they aren’t based on profitability or philosophical disagreement. Despite feeling this way rationally, I’ve had my own "AHA!" moments of frustration and resentment when my own words have been re-used in ways that were personally vexing.

To my shame I have also, in a moment of extreme frustration, used the protections of Fair Use as a cudgel to attack someone I felt was being unfair to me, threatening to continue using fair excerpts of their words and posts despite their expressed desire that I stop doing so. Taking advantage of Fair Use provisions to hurt or annoy someone (which is different from doing so in service of another end that might also have the same effect) is a passive-aggressive act of the highest order, like prominently linking to someone who has repeatedly asked that you not do so. Legal? Yes. Ethical? No. Unprofitable? Almost completely.

Instead of trying to find ways to add more warp to an already twisted body of legislation, people who are perturbed with the way a site like BNN is operation should be doing just what they are doing now: target people who run ethically questionable if probably legal sites using the same system of social information sharing and reputation that make such an operation potentially profitable in the first place. Rally the site-owners to protest and ask for removal, have all of them note their grievance(s) clearly on their pages so people following from the aggregating site are apprised, foment the discussion in the blogosphere, and counter with– and promote– more ethical reputation sites.

As a general rule and for reasons both sociological and economic, we have more power as individuals to bring about change in this area through our social action than we do through legal action. And if we find that we don’t have the support from the others we feel have been wronged then our first action should probably be to look at ourselves and our cause to figure out why.

[photo by Celeste]

Robert likes to tweak my nose a little by making references to the "fiction of intellectual property." It seems clear that he means it in a dismissive way, but I’ve always been confused by this notion. Is the dismissive nature of the term because it is a "fiction" or because that fiction is in service of the similarly imagined materiality of intellectual artifacts and ownership?

Either way, I recognize that intellectual property is a fiction… in the same way much of our society is based on fictions like "free speech" and "civil rights." These are all fictions used to frame cultural positions and actions which we view as advantageous or right. But we can be more specific than that, differentiating intellectual property from the broader category it shares with free speech: intellectual property is a fictive device. It’s a metaphor. And I’m not casually dismissive of metaphors (in fact, I’m not sure of the existence of much else).

I’m the last person anyone should turn to in order to defend the current system of copyright that is so obviously out of date and dangerously built on the foundation of intellectual property having a physical form. But I do not stand in opposition to the metaphor of intellectual property, which is something I think we need in order to have a working system that protects *and promotes* intellectual property in the second sense, as an artifact– with physically tangible manifestation or not– coming from, and of, human engagement with the world. What we need to protect isn’t really intellectual property, per se, but intellectual properties of expression.

Not recognizing intellectual property seems precisely retrograde, devaluing the creation of creative work of ephemeral and repeated instantiation at the very time that the power to create that kind of work is becoming available to everyone, like proscribing the ability to sell books just after Gutenberg has unveiled movable type.

  
[photo by lovelypetal]

[Part 1 - The Problem]

My friend Victoria’s recent entanglement with a bloggregator site (BNN) that was aggregating her site without permission has me thinking again about the dissonance between provisions for fair use and the way the current information environment operates.

The basic outline of the problem is this: BNN apparently used to, without asking for any permission, re-purpose the full-content feeds of the sites it aggregated without providing any links back to the source (not to mention any easy way to opt-out). The illegality of that enterprise is obvious at the first order of operation– all else aside, you can’t simply publish, in full, someone else’s content regardless of what else you are doing. Rightly, many people protested this, including some of Victoria’s peers for whom the matter still resonates. [redacted as I can find no evidence that this was ever true of BNN]

However, the situation is this: BNN uses 50-word excerpts of the original feed, with the title and the "more" link both pointing back to the original source. The site provides a place for comments and a rating system, making it a form of reputation site. The new configuration is arousing similar ire even though the changes to it make the legal situation considerably different.

As I see it, what BNN is doing is legal. Making a legal case against BNN’s current practice is a non-starter and, even if it weren’t, much of the legality or not of an action governed by copyright law is practically determined by whoever has pockets deep enough to wage a successful legal challenge or defense.

But there’s a good case that BNN isn’t being very ethical… or at least that the owner isn’t paying much attention to how it could operate in a way that would be more profitable, ultimately, to both BNN and the bloggers it aggregates. Here are a few ways it could improve:

• Most importantly, ask site owners if they would like to be included (and if they insist on not asking permission, which seems foolish, provide a clear opt-out system other than waiting to receive invective-filled email from unknowing contributors)
• Recognize not just the source of the information by link, but by title– accompany each entry with a simple citation of original blog’s title and address
• Beef up the associative links to the original sources by providing "more stories from" and "related stories" links with each article
• Extend the voting, commenting, and click-through system to create some kind of leaderboard or other reputation-based ranking system to recognize those who are receiving increased attention [updated: this, among other things, is being done]

In other words, work to establish the service as a legitimate and more valuable enterprise rather than the quickest way to approach making a profit regardless of the ethics in doing so.

This won’t necessarily alleviate the discomfort that comes from finding out that someone (or some organization) you don’t like is using your words. Fair Use is essentially a kind of open license focused on limited bits of content, and like open content initiatives, anyone who puts material out into the world may experience the discomfort that comes from the flip-side of openness and rights…namely that the same rights that protect and allow you to participate in the intellectual commons protect and allow for those dissonant uses as well. Which is why I’ve not only given up on the prospect of preventing that kind of use, but I’ve made (and am much happier) the philosophical switch that the value of enriching the commons outweighs the ramifications of limiting my contributions and that the positive uses far outweigh the negative uses. That’s why I not only adopt open content licensing such as Creative Commons licenses for as much of what I write and share as I can, but I even adopt one of the more liberal licenses of that kind, requiring only attribution with all other uses being permissible