Infringing Tropes, Part 3: An Eyewitness

Since my last post, I have come across a page written by someone who was an eyewitness to the events: The Edge of the Creative Commons, by Brent Laabs. He validates my criticism and also offers some additional information about when and why the change from BY-SA to BY-NC-SA happened. Well worth reading.

I’ve submitted this as a story to Techdirt, and I’m contacting others. Let’s see if I can make a fuss over this.

Addendum: Did TV Tropes violate their own license?

In my previous post, I noted that TV Tropes used to be available under a BY-SA license, but then they changed to a BY-NC-SA license. I consider this a bad move, of course, but after I finished my post, another thought occurred to me: what if it’s illegal?

To understand why this would be illegal, you’ve got to know a few things about Creative Commons licenses and how they work. First off, they are supposed to be irrevocable. Consider the following excerpts from the BY-SA legal code:

Subject to the terms and conditions of this License, Licensor hereby grants You a worldwide, royalty-free, non-exclusive, perpetual (for the duration of the applicable copyright) license to exercise the rights in the Work…

The above rights may be exercised in all media and formats whether now known or hereafter devised. The above rights include the right to make such modifications as are technically necessary to exercise the rights in other media and formats….

Subject to the above terms and conditions, the license granted here is perpetual (for the duration of the applicable copyright in the Work). Notwithstanding the above, Licensor reserves the right to release the Work under different license terms or to stop distributing the Work at any time; provided, however that any such election will not serve to withdraw this License (or any other license that has been, or is required to be, granted under the terms of this License), and this License will continue in full force and effect unless terminated as stated above.

The code is long and boring to read, but the parts I just quoted seem pretty clear that the license lasts as long as the copyright. This doesn’t mean that TV Tropes can’t re-release stuff under the BY-NC-SA license, but it does mean that everything is still covered by the more liberal BY-SA license. This is why All The Tropes has the right to take all of TV Tropes’s old stuff and repost it under the BY-SA license. So, at the very least, it is misleading for TV Tropes to imply that none of their current content is covered by BY-SA.

But there’s a deeper problem than that. It comes down to a question of “ownership”. The Creative Commons legal code notes that the “Licensor” reserves the right to release the Work under different license terms. So the question is: who is the proper “Licensor” for TV Tropes’s content?

If TV Tropes, LLC, is the proper “owner” of the content in question, then they do have the right to relicense their stuff, although I question the ethics of doing so. But I don’t think they can call themselves the “owner” of most of their content! Their current administrative policy is to take “irrevocable ownership…with all rights surrendered” of everything they receive, but some of their older administrative pages say nothing about that at all! In other words, TV Tropes simply cannot claim to own the copyrights on anything submitted to them before they changed their policy, which happened in November 2013. If TV Tropes does not own that stuff, then the contributors (and there are a lot of contributors) still have the rights to it, according to the Berne Convention. They gave TV Tropes permission to use it under the BY-SA license, but that doesn’t include the right to relicense their contributions under the BY-NC-SA license! Did the legions of contributors ever explicitly give TV Tropes permission to relicense their work? If not, then TV Tropes is violating the BY-SA license, and by so doing, they lose their rights under that license, meaning that they lose the rights to use the work at all! Their relicensing the content to BY-NC-SA is a massive act of infringement, and they had better pay up – or else!

Of course, it’s been nearly a year since TV Tropes started claiming irrevocable ownership, and over two years since they started marking everything as BY-NC-SA. Why hasn’t anything bad happened to them yet? I believe it is because of the inherent weakness of Creative Commons licenses: they rely on copyright for their power, and copyright is not a tool for the masses. Copyright is now, as it has ever been, a tool for the few to oppress the many. Expecting it to come through in our favor is a foolish proposition, and everyone who does so (including Creative Commons) has made the fatal mistake of believing hype over substance.

But perhaps I am being too pessimistic. Time will tell. In the meantime, I intend to probe this issue further, and see if we can’t actually use these licenses to put some pressure on TV Tropes. Maybe I’m a fool, but I know that large organizations live and die by the words on paper, and there are cases on the books of the lowly bringing down the haughty using the law. Wish me luck.

P.S. For a good bit of reading on the trouble with copyright, check out this essay: ‘Balanced’ Copyright: Not A Magic Solving Word, by Alan Story (and some good follow-up on Techdirt). I’ll have to give that essay a more thorough reading later, but for now, let me just say that I fully agree with Alan Story’s suggestion to “burn Berne”.

Fork TV Tropes – use All The Tropes instead!

All of you who are reading this are probably already familiar with TV Tropes, the great wiki of the elements of fiction. It’s a fun resource, and a powerful time sink. But there’s a problem with it, and from my vantage point as a free culture fanatic, it’s a big problem: the license.

TV Tropes uses Creative Commons’s BY-NC-SA license. This license means that you can copy and modify the content however you want, but subject to these four conditions:
1. You must give proper attribution to the content creator (BY)
2. You must not use it commercially (NC)
3. You must make your content available under the same license (SA)
4. You must not add any DRM to what you make (this is standard in all Creative Commons licenses)

Now, conditions 1 and 4 are great by me, and condition 3 wouldn’t be so bad, except for condition 2. That’s actually a very profound restriction, dictating how someone can use the information. While conditions 1, 3, and 4 just tell you what you must do when you use it, condition 2 tells you how you must use it. This is a broad restriction, and not a very helpful one.

Smarter folks than myself have written a lot about the potential harm in non-commercial restrictions. The good folks at Freedom Defined have put together an excellent page: The case for Free use: reasons not to use a Creative Commons -NC license. I also recommend the following post: Why The NC Permission Culture Simply Doesn’t Work.

But there’s an even better argument against the NC provision, especially since TV Tropes is a wiki: the most popular wiki of all doesn’t use it! Wikipedia’s license is BY-SA, commercial reuse fully allowed. It doesn’t seem to have harmed Wikipedia at all, and it makes Wikipedia’s content more useful to the world. Curiously enough, TV Tropes used to be available under the BY-SA license, as this archived page shows. Why did they change? I can’t say for sure, but I suspect it was because they wanted more control over the submissions they were getting. Wikipedia notes here that TV Tropes even changed their terms of use to demand total ownership of user contributions.

Well, some folks weren’t happy about the change, and they decided to do something about it. Taking advantage of the freeing nature of the BY-SA license, these folks took TV Tropes’s stuff and forked it, creating a new tropes wiki: All The Tropes (also available on Wikia). All The Tropes offers folks a place to give and receive truly free content when discussing culture, creating a repository of knowledge and opinion that’s available for anyone to use for any reason, commercial or not. There is no top-down control, nor top-down censorship, and they even use better software to run their wiki. Seriously, check the place out.

So, the next time you want to discuss some incredibly overused cliche, or some element of fiction that seems to be everywhere you look, or some magnificent moment in fiction that was just so awesome, forget the control freaks over at TV Tropes. Go to All The Tropes instead. Choose freedom. You’ll be glad you did.

The Rights of a Rabbit

In the course of my research for my upcoming post, I came across an unusual story. It is part of the larger story of Oswald the Lucky Rabbit, one of the first “characters” created by Walt Disney. If you’ve never heard of Oswald and you’re wondering why rabbit is so obscure while the mouse is so famous, the reason is that Walt lost the rights to draw the rabbit. Walt didn’t like the deal he was getting from Universal Studios, and they refused to pay him any more, so he left, but they kept Oswald. Walt went on to create Mickey, and Universal cried in their beer.

Time went on, and Mickey rose to a great price while Oswald languished in obscurity. The Walt Disney Company decided that they wanted the rabbit back, and Universal was willing to let go, for a price. So Disney and Universal made a trade: Disney got the rights to Oswald, and Universal got the contract for Al Michaels, plus some other stuff related to sports coverage.

Now, both Disney and Univeral seemed happy with this deal, but it strikes me as very strange. Consider what Univeral got: a valuable new employee, with decades of experience and a large fanbase. Consider what Disney got: the right to draw pictures of a certain kind of made-up rabbit.

How does this make any sense?

But to answer my own rhetorical question: Disney didn’t just get the right to draw a rabbit, they got the rights to prevent other people from drawing that rabbit. That’s something worth plenty of money, and that’s how the trade makes sense.

Perhaps, one day in the future, a generation wiser than ours will look back on our strange permission culture and wonder why we did such a thing to ourselves. Will we be able to provide a meaningful answer? Or will we have to confess to a kind of madness, that compelled us to prevent each other from doing harmless things, out of some strange idea of propriety?

I don’t know what the future will bring, but I sure hope it’s better than what we’ve currently got.

All politicians are Nazis (thoughts on the death of irony)

There’s a fellow running for State Senate not far from where I live, by the name of Steven Zachary. I don’t know much about his platform, but I do know his motto: “Family. Community. Jobs.”

There’s nothing particularly special about that motto. You’ve probably heard variations on it dozens of times already, in previous political campaigns. In fact, when I first read that motto, it reminded me of another motto that’s over 70 years old: Travail, famille, patrie, the motto of Vichy France. Travail (work), famille (family), patrie (homeland): all good things that a politician would want to promote, right?

But there’s a problem with borrowing Vichy France’s slogan: Vichy France was a puppet government, a fascistic regime installed by German occupiers. And not just any Germans, but Nazis, who they actively cooperated with in suppressing dissent and exterminating Jews. Thus, Reverend Zachary’s motto comes off less like the mantra of a trustworthy statesman and more like the snake-oil promise of a quisling. Is Reverend Zachary aware of this resemblance?

Alas, it probably doesn’t matter. Steven designed his slogan to have a shallow appeal, and the irony of a black man sounding like a Nazi collaborator won’t reduce his appeal to the people he’s trying to appeal to. For comparison, consider this magazine cover advocating “the case for Romney”. The resemblance to Soviet propaganda is obvious, even without the side-by-side comparison offered in the link, and yet that picture was on a conservative-leaning magazine in favor of a Republican presidential candidate; these are folks who pride themselves on being anti-Communist! And yet there they are, looking to all the world like the Glorious People’s Revolutionary Central Planners, and loving it.

All the irony has gone out of American politics, and we are poorer for it.

On a related note, Century Link is offering a television service called “prism”, and they’re inviting everyone to see prism tv. It seems they are unaware that in Soviet Amerika, PRISM sees you.

Nice things

Hello again, readers. I’m working on a long post, tentatively titled “The Costs of Copyright”, but before that’s ready, I’d like to share with you something that was going to be in the post, but which I removed because it didn’t fit the tone I was going for, but I just couldn’t throw it out, so here it is now: I am taking three people who I’m inclined to disagree with, and finding things that we agree upon.

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The three people who disagree with me are J. Neil Schulman (see my disagreements with him here), Alexander Baker (see here) and a mysterious fellow who I know only as Strangerous Thoughts. I haven’t publicly sparred with Strangerous before, but they’ve written posts like The ultimate justification for natural and intellectual property and The economic principles of intellectual property and the fallacies of intellectual communism, so you can see why I am inclined to list them alongside Alexander and Neil. But before I get to disagreeing with these fellows once more, I must first say nice things about them (one of these days, I’m going to say nice things about Jack Valenti).

First, about J. Neil Schulman. Neil wrote a little essay called Human Property, seeking to explain his views on what property is and what it should be. Sadly, early on the essay, he insists: “There is no more of a distinction to be made between “intellectual” property and “stupid” property than there are distinctions between any other kinds of property.” But! Just before Neil says that, he says this:

Nothing in a state of nature is property.

It’s only the application of human intellect to things found in a state of nature that makes anything property.

Why, that’s right! And it’s something that I’ve been overlooking.

As Neil puts it, nothing in nature has the stamp of ownership on it. There is no natural property. So how does property come into being? Quoting Neil:

Then come human beings who look around, put up fences, take stuff and turn it into other — sometimes brand new — stuff, and say to other human beings, “This which I messed around with is mine and not yours. Use it without my permission and there’s going to be big trouble.”

Now, when I read that, I remembered this phrase from Jean-Jacques Rousseau’s Discourse on Inequality:

The first man who, having enclosed a piece of ground, bethought himself of saying This is mine, and found people simple enough to believe him, was the real founder of civil society. From how many crimes, wars, and murders, from how many horrors and misfortunes might not any one have saved mankind, by pulling up the stakes, or filling up the ditch, and crying to his fellows: Beware of listening to this imposter; you are undone if you once forget that the fruits of the earth belong to us all, and the earth itself to nobody.

It seems that Mr. Rousseau and Mr. Schulman do not agree on the utility of the idea of “property”. Who is right? I say that J. Neil Schulman is right. To support Neil’s position, I quote Crosbie Fitch:

Tell a bear his cave is not his property because he has no government to legislate it so. Tell a wolf the carcass he’s enjoying is not his property because he has no government to legislate it so.

Property derives from privacy, the individual’s innate power and natural right to exclude others from the spaces they inhabit and the objects they possess. Governments are supposed to secure such exclusive rights – on the basis of equality – as opposed to whoever is the more powerful.

Rousseau saw property as a wicked institution, but Fitch does not agree, and neither does Neil, and neither do I. Animals recognize property just as much as humans. Birds do it (nests), bees do it (hives), even educated fleas do it (citation needed). The idea of property is a functional, useful idea. But it is an idea, and I thank Mr. Schulman for pointing that out to me.

Second, about Alexander Baker. In the comments on this recent post of his, he makes an excellent point, which I shall quote here:

“Use is only interfered with if the thing is physically interfered with.”
You’re free to define “use” that way, but then all you’ve done is smuggled your conclusion into your premise. With that definition, Kinsella could have written a very short book:
Property rights only apply to rivalrous things. Rivalrous means that use by one interferes with use by another. Interference must be physical. Therefore property rights only apply to physical things. QED.
And that is the sum and substance of what Kinsella did, although he goes on for 60 pages.

(Context: he’s responding to a commenter trying to nail down the definition of use, and he references this book by Kinsella.)

Now, to me, that sounds very reasonable! Why not make that a premise? But Mr. Baker is right to point out that it is a premise, and it’s important to question our premises, and it’s especially important to not assume what you’re trying to prove (except in mathematical proofs, but that’s a story for another time).

Finally, about Strangerous Thoughts. They’re new here, but it so happens that I have the nicest things to say about them (sorry, Neil and Alexander). I refer you to this post of theirs: The supply of and demand for rights and the fallacy of natural rights. I agree with the entire thing, and I will be basing this post on the theory that Strangerous offers therein. Here’s Strangerous’s own summary:

The pursuit of natural rights theory is a search for first principles that determine the unarguable right any human possesses at any time in any place. This idea cannot be transposed from theory to reality. In reality, rights only exist if they are enforced, and the enforcement of rights is limited by material scarcity. In a free market society there may be no avoiding positivist rights if costs must be suffered to have rights – each individual must pick and choose what rights to insure himself.

In other words, we cannot guarantee all conceivable rights, so we must economize. For example, we cannot grant ourselves the right to immortality. It’s too expensive! Generations have tried and failed to achieve it, without success, so it’s just not a good idea to try to guarantee it. Of course, none of us are very eager to die, so we grant ourselves the right to not be murdered. This is a much cheaper right, but it still comes at a cost: we must give up the right to murder. Most of us consider this right to be of very little value, so we give it up almost thoughtlessly, but it’s good to recognize that we have given up a right in exchange for a different right. Everything comes at a cost.

Now, all that said, what rights shall we grant ourselves? Here, like most libertarians, I take my cue from the viewpoint of individualism. As an individual, I exist independent of anyone else, and have the power to make my own decisions, just like every other individual out there. The libertarian style of economics, so often called “capitalism”, is better understood as economic individualism:

Economic individualism’s basic premise is that the pursuit of self-interest and the right to own private property are morally defensible and legally legitimate. Its major corollary is that the state exists to protect individual rights. Subject to certain restrictions, individuals (alone or with others) are free to decide where to invest, what to produce or sell, and what prices to charge.

This approach applies to civil rights as well. As Neil put in the title of one of his posts: No, Not Gay Rights — Individual Rights! I couldn’t have put it better myself.

Now let me get back to the subject of economizing rights. Since we’re trying to maximize individual rights, we must ask: “What rights do individuals want most, and what rights can individuals afford?” From here, we can turn to physical reality as our guide, to help us determine which rights an individual needs most to survive and which rights an individual is most able to secure for themselves. Crosbie Fitch, pondering a similar question, came up with this response:

Rights are the vital powers of all human beings. We have rights to life, privacy, truth, and liberty.

- We have a right to life, to protect the health and integrity of our minds and bodies.
– We have a right to privacy, to exclude others from the objects we possess and spaces we inhabit.
– We have a right to truth, to guard against deceit.
– We have a right to liberty, to move and communicate freely.

Regrettably, Fitch calls these “natural rights”, but the term here might be appropriate, because these rights stem from powers that we all naturally possess, and needs that we all naturally have! As such, we can describe them in market terms as high-value, low-cost rights, just the sort of thing that a free market in rights can effectively deliver. Better yet, the enforcement of these kinds of rights is subject to economies of scale: the more people have them and defend them, the easier they are to defend. By cooperating in mutual defense, we can strengthen our claims to these rights, lowering their effective price, which leaves us room in our “rights budget” to secure further rights for ourselves (or, alternatively, to take the time and energy that we used to spend securing our rights, and use it to secure other goods, such as material wealth of leisure time). This is called progress.

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That was all going to be in the introduction, but I changed my mind. I hope you don’t mind me putting it here, to stand or fall on its own merits alone.