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).
Archive.org 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.