Content Ownership

Some random thoughts on intellectual property particularly on the web and on social networking web sites. Somewhat sparked, obviously, by the recent Facebook debacle.

I am not a lawyer.  This (intellectual property) is a very technical area of the law, and also a very active area lately.  I’d love to see a version of this article written by an expert.

What, under current law, is it necessary for a site like Facebook to claim?  At a minimum, they have to store your content on their servers, and they have to distribute your content to users who have permission to view it (largely controlled by the poster).

Furthermore, they have to make backup copies, and keep some of those copies off-site (and in fact Facebook itself probably isn’t housed in one datacenter, so the information is already replicated around the country or world just to be accessible on the site).  And they have to be able to restore an entire backup even if they then need to delete parts of it.

What if you want to cancel your account?  Well, they can’t possibly extract your data from among the backups; it’s not technically feasible. And they still need to be able to restore backups to their live servers without becoming criminals.  It’s also perfectly possible (though I’m sure they make efforts to minimize the chance) that your deletion might get lost (not backed up when the datastore crashes), and they don’t want to be criminals if that happens.  The best they can reasonably offer is some sort of good effort to stop distributing your content.  (Also, in the facebook case, some of “your” content is part of other people’s sites, because you wrote it on their wall or such.  Pulling it all down makes other people’s sites incomplete. Legally you seem to have the right to demand that, but it’s not good  for the site.)

They might reasonably want protection from software glitches that displayed your content to people you hadn’t authorized (not your friends, in Facebook terms).  Sure, such glitches would be their fault, but criminal copyright violation comes high, and it’s not something they really want to worry about when writing social networking security code.

Beyond this, they have a reasonable interest in promoting the site. To do that, one thing they’d want to show is some of the content on the site, at least in the form of screenshots.  This is a bit of a rights grab; arguably they should have to negotiate individually with each person whose content they use in advertising.  However, the agreement they make with those people should be long-term, probably open-ended, because otherwise any provider of content they used in the ad could require that they instantly pull that ad.

Previous systems have had interesting histories.  Usenet, for example, was never successfully challenged as a whole.  It appears that submitting an article to a newsgroup adequately serves as permission for it to be stored and propagated and quoted.  I’m not sure it’s been explicitly litigated; but since the system has been in place for more than 20 years, working that way consistently, with no central controlling hub (technical) or owner  (administrative), it’s the only feasible outcome other than saying you can’t have Usenet.

Deja News (and now Google) archiving of Usenet, including old Usenet articles retrieved from magtapes where they could find them, is an even more interesting situation.  Again, it hasn’t been seriously litigated that I know of.  Google has deep pockets, so if a prolific poster was in a position to get damages per copy of each post, or some such, it would be huge.  Of course people with deep pockets also have good lawyers.  (I have to say here that I think the archiving of Usenet is a wonderful thing.  I love having access to the old discussion I was involved in, they form part of my external memory. I’m glad the legal world seems to be finding such uses legal.)

Some people are concerned that stuff they say online may last forever.  Well, that’s true for stuff published as a newspaper op-ed or letter, too, or even in letters sent to friends.  The net, and Google, make it easier to find such things, but if they’ve been recorded in writing, they’re capable of coming back to haunt you even before the net.  I think the obscurity and ephemeral nature of human interaction was giving people an unreasonable feeling of safety that history doesn’t justify.

It may be, however, that this is bringing a level of scrutiny
previously only feasible for high-profile people onto everybody.  That would be a big change, not necessarily a good one.  If the governor of New York patronizes prostitutes, and somebody suspects it and the news media start publishing the speculation, it’s nearly certain that the people in a position to testify to it will learn of it; and they may well decide to come forward and take the notoriety (and the money). The news media is unlikely to widely publish such speculations about ordinary citizens, so the people in a position to testify are less likely to hear about it, and the rewards in cash or notoriety for coming forward are less.  Unless, of course, something happens to make you a celebrity suddenly (like Joe the Plumber, say). seems to be in an interesting position.  Lots of the sites they mirror they have no contractual arrangement with (such as mine), which would seem to put them technically in violation of copyright. Nevertheless they remain in business.  And I find them a tremendously valuable resource.

I think the current copyright term, life of the creator plus 70 years, is tremendously too long.  I don’t really approve of granting copyright for the full life of the creator; tacking 70 years onto that is absurd.  We got into this situation (starting at life plus 50) by signing on to the Berne copyright convention, which is the major international agreement on copyrights, so this will be very hard to change.  But still.  Too long.  Far too long.

(The argument for life of the creator, of course, is that one
shouldn’t have to live to see what people do to your work when you can’t stop them.  Also, that it’s very often not until the end of a creative lifetime that the financial rewards start to come in, and seeing your early books be bestsellers while living in poverty is cruel.  The argument for life plus something is then that the publisher can’t say “Well, you’re not looking too healthy, so I won’t pay much now, I’ll just wait.”)

I know in publishing it can be dificult to include a story in an anthology because the editor can’t find who currently holds the rights.  Much of the stuff I care about is not a big money property like a blockbuster movie, and people just don’t focus on keeping track of the rights.  The tremendously extended term of today’s copyright is making this part harder for the parts of popular culture I care about, I guess for the purpose of extending the commercial life of big properties owned by big media companies.  I believe big chunks of culture are being lost because the copyright ownership is unclear. The longer the term of copyright, the more this will happen.

Possibly different terms for corporate and individual copyright are appropriate; the corporations are better at keeping track of details over time, and deal with more expensive properties (movies inherently cost a bunch to produce).  Perhaps giving them a fairly long fixed term, say 50 years, with a renewal option (renewal seems to have made it much easier for Gutenberg to get things considered to be public domain even though published after 1922) would be good.  Whereas individual creators could have life plus 10, or something.  (However, corporate terms are available to an individual for the cost of incorporating, so maybe splitting them doesn’t make sense.  One idea I’m picking around at is offering real corporate creations a good deal essentially as a bribe to keep them from fucking up the rest of the system, which has rather different needs.)

The orphan works bill that raised such a stink was attempting to resolve some of these same issues.  There are certainly problems with works being orphaned, or at least with the owner not being easily determinable, it’s a real problem.

Seems to me the rights for the musical Hair Godspell were badly tied up for years because they were too widely distributed (in a well-meaning egalitarian gesture).  This seems to have hurt everybody, in all communities of interest, in the end.  At the time that arrangement was made there was no reason to expect it to be a valuable commercial property, but the arrangement to some extent caused that result.

There are a number of cases where copyright has been used essentially to keep something unavailable.  Cults use it when muckrakers try to publish their secret documents, for example.  I’ve also heard of cases where parents or spouses or the author themselves want a particular work to be unavailable.  Once something has been published (which lets out some of the cult cases), I don’t really believe in using copyright to try to un-publish it.  I never like the results.

The Mythical “Gun-Show Loophole”

Another myth perpetrated by anti-gun forces. There are no  transactions permitted at a gun show that are not permitted anywhere else. (State law controls much of private transfer of firearms; I believe what I say is correct for Minnesota, and I think it’s true in a lot of other states as well, but be sure to check what the law really is in your state before transferring any firearms! I am not a lawyer and this is not legal advice!)

What the anti-gun forces really want to do is to ban all private transfers of firearms, and force us to go through a federally licensed dealer for each one. This would drastically restrict availability of firearms to legal owners, and probably significantly raise costs. Licensed dealers are hard to find.  There isn’t one in the city of Minneapolis, for example; you have to drive out to the suburbs quite a ways to get to one. The dealers would of course charge money for this service, too. In more rural areas, there may not be one for 100 miles; since one thing “accomplished” during the Clinton administration was to revoke the licenses of a lot of part-time dealers (they targeted everybody without a full-time store-front).

Officially, the goal is to make sure the people who buy through private transactions aren’t people barred from owning firearms.

Of course, it’s already illegal for me to sell to somebody I have reason to believe isn’t allowed to own the firearm, but I’m not required (and in fact I have no means) to run a background check on the buyer. What most people I know do in Minnesota is only sell to people who have a carry permit or a “permit to purchase” issued by their local police; these documents show the person has passed the background check.  This isn’t legally required, but the gun-owners I know don’t like the idea of guns getting into the hands of bad guys any more than anybody else.

More to the point, there isn’t any evidence pointing to legal sales through private owners being a significant source of guns used in crimes.  Most of them are stolen, from stores or police cars or private homes, or smuggled into the country by gangs (who, after all, routinely smuggle in tons of other contraband; do you really believe they won’t have guns if they want guns?). Some are bought by legal purchasers who are friends of the intended illegal recipients (often their girlfriends); these transactions are called “straw purchases” and are already a felony. In other countries, raids on police and military armories have been resorted to.

Incidentally, one of the reasons gun shows are so important is precisely that there aren’t that many gun stores around.  For a lot of people, waiting for a gun show to come by is their best way to see a wide range of merchandise and be able to decide what they want to buy. At a gun show, you get to see merchandise from a lot of dealers from a very large geographic area, conveniently exhibiting in one room for your convenience.

The existence of a vibrant used market in guns helps keep prices down (back to my theme that guns shouldn’t be a tool or hobby reserved for the rich). Collectors do some speculating as well, and late in their lives often cash in much of their collection; requiring each transaction to go through a licensed dealer would be a hideous barrier to selling off a collection, and would no doubt cost these people huge amounts of money (good collections are easily worth tens of thousands of dollars, even if they haven’t invested nearly that much into them, as guns have appreciated a lot over the last few decades).

Where is the line between somebody selling off a collection, and somebody making a living as an unlicensed dealer?  There’s lots of law about this, and the BATFE is fairly active in pursuing unlicensed dealers (in fact, over-active; they lose a lot of cases, that is, the courts decide the person is not in fact acting as an unlicensed dealer). The point is, there isn’t a “problem” with unlicensed dealers. A person who sells off a collection he’s owned for a long time, without buying a lot of new guns he then sells off, is clearly a collector selling a collection, even if the numbers sold are fairly high (for a while); he’s not any sort of dealer, and shouldn’t have the extreme limits applied to dealers applied to him. Even if he happens to rent a table at a gun show to sell some of them.

I won’t even try to go into the additional complexities this would add to gifts and inheritances.

I’d love to talk to anybody who wants to understand this in more detail, has questions, or whatever, in the comments sections here, in email, in person, or however is convenient.

“Assault” Weapons

This term has two nearly-unrelated meanings.  It has a technical military meaning (where it’s a sub-caliber fully-automatic weapon for close combat), and a modern political meaning (where it’s any semi-automatic rifle that looks aggressive). I’m talking largely about the meaning given the term in the 1994 Assault Weapons Ban (which was allowed to expire in 2004).

Let’s take a quick look at those two degrees of automation. A “fully-automatic” rifle is a small machine-gun; holding back the trigger causes the rifle to continue firing (until the magazine is empty, which would be pretty quickly with a 30-round magazine and a 600 rounds per minute firing rate, for example). A “semi-automatic” or “auto-loading” rifle is one where the recoil or gas generated from one round is used to load the next round and cock the rifle, ready to fire again. With a semi-automatic rifle, you get one bang per trigger pull.

You often hear people talking about “high-powered assault weapons”. This always makes me laugh, because being low powered is part of the military definition, and the civilian definition doesn’t relate to power at all. Most of the rifles classified as “assault weapons” by the 1994 ban fired the NATO 5.56mm round (or very similar civilian .223 Remington round) or the Russian 7.62×39 round.  The .223 (650 foot-pounds at 200 yards)  is too weak to be legal for deer in many states. The 7.62×39 (900 foot-pounds at 200 yards) is just barely powerful enough to be legal for deer, putting it at the very bottom of the range of big-game hunting rounds (along with the classic .30-30 (900 foot-pounds at 200 yards)).  Both are far, far less powerful than for example the .30-06 (1700 foot-pounds at 200 yards), which is itself a midrange round, marginal except in the most expert hands for even big North American game like moose (don’t even think about taking on Cape buffalo, elephant, rhinoceros, or hippopotamus with a .30-06; yeah, I know people have done it).

Civilians can legally own machine guns in many states, if they meet the state requirements plus pay a special transfer tax and grant special permissions (including the right to conduct surprise visits at any time) to the BATFE. The transfer tax is $200.  In addition, they can (these days) only buy machine guns manufactured before 1986, so the prices are astronomical (ten thousand dollars and up). For these reasons, very very few people actually do (mostly serious hobbiests who get licensed as machine gun manufacturers so they can make their own). Legal civilian machine-guns don’t seem to ever show up at crime scenes.

The 1994 federal ban named certain specific models, and in addition to that specified features that, if a rifle had too many of, would automatically ban it.  From Wikipedia, those characteristics were:

Semi-automatic rifles able to accept detachable magazines and two or more of the following:
  • Folding stock
  • Conspicuous pistol grip
  • Bayonet mount
  • Flash suppressor, or threaded barrel designed to accommodate one
  • Grenade launcher (more precisely, a muzzle device which enables the launching or firing of rifle grenades)

So far as anybody has been able to tell, this list has nothing whatsoever to do with utility in criminal activities or even popularity among criminals.  What it is, is an attempt to ban “evil black rifles”.

The AR-15 is the most popular evil black rifle.

The AR-15 Rifle
The AR-15 Rifle

There are at least four reasons why they shouldn’t be banned:

  1. Nobody has shown any benefit to be gained from banning them.
  2. Our individual right to keep and bear arms (affirmed by the 2nd amendment to the US Constitution) certainly includes military-type weapons.
  3. They include many of the cheapest hunting rifles available (military surplus SKSs, for example). They also include many of the rifles that fire cheap (surplus) ammunition. Firearms should not be a hobby reserved for the rich!
  4. The characteristics that make them subject to the ban are not related to any danger factor.

There should be no need to show a “need” for civilian ownership of this kind of firearm; the burden of proof should rest on the other side, to show some compelling reason for banning them. But as long as I’m scribbling on the topic, I’ll point out that these rifles are widely used in marksmanship competition, home defense, varmint and small game hunting, “plinking” (informal non-competitive target shooting), and some of them for hunting larger game (where legal). Collectors also like to have examples of them, because of their military heritage.

I don’t think I can describe very well the degree to which the assault weapons ban was reviled in the gun community. Baldly, it was viewed as the first big move towards banning most guns and confiscating existing guns (a move which the gun community believes is intended by the anti-gun groups; they’ve admitted it in public now and then, so I think that’s accurate). Taking away fun, popular, widely-used guns, some of them inexpensive, for no apparent reason (and, with 10 years of statistics to sort through, no sign of any benefit), could only be something done for spite and as part of a larger plan.  It was also viewed as a clear sign that the people supporting it “just don’t get it”.  They don’t get that these guns are not especially dangerous, not widely used in crime, and are widely popular among gun people.

And despite his assurances (couched in language carefully avoiding the question), I’m afraid our president elect would support a new attempt at an assault weapons ban.  I really hope I’m wrong–because we need him for eight years.  And if he really motivates the gun rights bloc, we may not have him (or a supportive congress) that long.

Please, if you can possibly bring yourself to do it, actively resist another assault weapons ban. If it were passed, it would accomplish nothing good, and even trying and failing would be very polarizing. And it’s a distraction from much more important things that are worth fighting over, like health care, and the economy and taxes and financial regulation, and extricating ourselves from Iraq, and starting to restore our world stature. I’d love to talk to anybody who wants to know more about the subject.