Fact is, in that old debate, Dave demonstrated a fundamental misunderstanding of how copyright law works.

He says programmers give the public nothing in return for copyrights. How insulting. We give our time and our ideas, just like lawyers and college professors.

There’s no equivalent of source code in his two professions. If there were, I could just invoke the Lessig Defense in court and get the exact same result, every time, and even better not have to bother with a lengthy trial.

The problem, of course, is that neither “time” nor “ideas” are protected by copyright only the exploitation of creative works. So as a closed-source programmer’s contribution to the world of intellectual property goes, there really isn’t one. See, for example, Pride and Prejudice and Zombies. Because Austen had to release her work in order to distribute it, we all get the benefit of it entering the public domain decades later. This is not the case with software. The only way it will enter the public domain decades later is by reverse engineering and/or leaking it. At that point, though, it will be so antiquated as to be almost useless (see, for example, Frontier).

On the contrary, requiring software to release its source in order to be granted copyright protection would allow us all to learn right now, increasing the capability and knowledge of programmers the world over.

Still, Winer getting schooled by Lessig so badly that Dave doesn’t even know he lost isn’t all that strange. Also not strange, but noteworthy, is Dave pointing to the release of Frontier into the open source community as an example that he was actually right:

[I]n 2004 I released my main work under the GPL. There was no parade, no new respect or even thanks from people outside the community that already used the software. Did it inspire any young would-be designers? Time will tell, but it’s looking doubtful. Just saying it’s harder to influence the future than it should be, or maybe not — who knows.

The premise, clearly faulty to all of us, is that Dave’s work is so amazing that it should have inspired a young would-be designer, or that it was parade-worthy. Even aside from that, his situation isn’t like what Lessig was proposing. He released it to try to save it from fading into obscurity, rather than initially in order to bolster the community . . . it was one last attempt to make a bloated and dying software platform meaningful. Now, he says because that didn’t, that source disclosure is dangerous?

At the end of the day, it comes down to a very simple principle upon which Copyright (and patent) are based: in order to encourage contributions to the world in the arts and sciences, the government is permitted to offer those who contribute their works to the public a temporary monopoly on their exploitation.

The key here is that the creative folks are expected to contribute. In the day and age that copyright was conceived, there wasn’t a way to exploit one’s creativity without releasing it into the wild. These days, creativity can be holed up and hidden away in compilation and encryption, never to be seen by anyone but its author, but still granted a monopoly all the same.

I can’t say that I agree with all of what Lessig has to say, but he certainly has a very valid point as it relates to the copyright of source code.

Now, he’s decided to make the ability to steal and re-host other people’s tweets widely available.

If you’re still not sold on the copyright, take a look at this passage from Dave when it was about his content:

The next step is to look at the copyright issues his service raises. They are quite interesting. Scripting News, both in HTML and RSS, has a clear copyright on it. Should I have a say in publications created from my content? I generally don’t mind, but shouldn’t I have to give permission? Suppose a magazine started publishing all my writing. Would I have recourse? I am not a lawyer, but it seems clear that I would. Is Pilgrim somehow immune to copyright law? I’d love to hear the legal theory that allows him to do what he’s doing with my work.

So . . . is Dave “somehow immune to copyright law?”

Almost everyone seems to be making the story bigger than it is

Here’s the point that Dave is missing (intentionally, in my opinion). There is nothing bigger than a news syndicate trying to control the “conversation of the day.” This is one of the fundamental problems that blogging was intended to “route around” as Dave would put it. He suggests that take-down notices are no big deal. “Their lawsuits will not happen,” he says.

He’s right about the fact that no suits are going to happen. He’s wrong to think that’s an important point in defense of the AP. The reason is simple: if you’re a fat cat like Dave and can afford to defend yourself against a big civil suit, the threat of a law suit is no big deal. If you’re an average person, though, you could not defend yourself against even the most frivolous of suits filed by the AP.

The AP won’t be filing any suits to back-up these take-downs. That doesn’t make the situation better, it makes it worse. It means that somewhere in the bowels of the AP, one of two things is happening: 1) they have a team who really believes they have the right to profit froma 5-word quote, or 2) they know they’re going beyond their rights here and that their threats are unenforceable, but they’re sending the legal threats anyway.

For someone who likes to bad-mouth lawyers and scummy lawyer behavior, he’s really missed the boat on this one. This is bullying, pure and simple.

I find this ironic, though:

the bloggers who just want to lynch AP are engaging in the worst kind of discourse, it’s anti-intellectual, they jump to conclusions, ignore information that contradicts their assumptions that’s easily available, and points of view that don’t agree with theirs.

Dave, rushing to the defense of intellectual discourse. He could not have described his typical course more succinctly.

He starts, right off the bat, by giving the AP an excuse, saying that because they’re large, they can’t possibly be of “one mind” about this. It’s a cop-out. There might be some internal disagreement, but the legal strategy is unmistakable.

There’s a bizarre comment about the AP being “a not-for-profit cooperative”, conveniently ignoring that while the AP itself is not-for-profit, the entities composing the AP are decidedly for profit. To explore that a bit further, consider one of the suggested reasons for the decline in revenue for many news outlets: bloggers. Consider that the AP is a cooperative of for-profit news entities. The AP is going after bloggers. No connection here? Really?

Dave’s typical attitude towards lawyers is strangely absent, with him insisting that we should try to hear the AP’s side of the story. Why are they sending ludicrous DMCA take-down notices? There must be a reason aside from intimidation, right?

By now, if you’re like me, you’re boggling at how or why Dave is taking the side of an organization that is attempting to lay claim to the news, stop the free flow of information, and is using a bunch of lawyers to try to force it through. What gives?

…

I want to testify on behalf of the AP. I did a deal with them at the end of last year, a quiet one, that the tech community mostly ignored.

FlickrFan. The bloated piece of crap-ware that Dave laments so few people took notice of. More accurately, everyone and their brother downloaded it, realized it was essentially worthless (aside from the AP feeds) and promptly uninstalled it. The AP scratched Dave’s back, and now he’s going to scratch theirs — reprehensible, anti-social legal tactics be damned.

The rest is classic. A massive organization flush with lawyers and cash is sending threatening letters to individuals, many of whom wouldn’t have the money to defend themselves against a traffic citation, let alone a massive IP civil suit… and this is no big deal? NetFlix doesn’t give Dave an easy way to export his movie ratings and he throws a fit, but an organization trying to control who reports the news is just a big joke?

Give me a break.

Dave is a sell-out. He’s probably worried that if he comes out too strongly against the AP they’ll end his sweetheart FlickrFan deal and make the app officially pointless. I would say that was smart business if FlickrFan actually stood to make any money, but it’s really more cowardice than anything.

Speaking of which, why no overt disclosure about the nature of the relationship between himself and the AP? We know that one exists, but we have no idea what the terms are.

What the AP is doing is dangerous. They’re trying to control the news, and they’re starting by pushing people around who they don’t think can defend themselves against it. They’re trying to centralize FACTS to lock everyone in their giant trunk… but I guess as long as Dave and the AP are in bed together, we can count on him to be their Yes-Man.

eye,
I was fascinated by the prospect of having AP photos on my screensaver, so I downloaded Dave’s flickrfan software. After a day or so, however, I became concerned about the copyright implications so, to assuage my fears, I decided to give them a call. The guy I spoke with said he would look into the matter. He called back about an hour later to say that he doesn’t know where Dave is getting the images, but he doesn’t believe that this is on the up-and-up. He said he’d continue to look into it, but he doesn’t think he’ll find anything. He also, in our initial conversation, asked what sort of resolution the pictures were coming in at and seemed genuinely shocked by my reply.

Unless there’s some memo that didn’t get circulated at the AP, it appears that Dave is passing out their pics without their permission. If I hear anything back, I’ll let you know.

[Name Redacted]

Two things, for the record: First, I have not verified the content of the above email and make no representations as to its truth. Second, I would be very, very concerned about enabling the AP feed in FlickrFan. If there’s no agreement between Dave and the AP, simply pulling the enclosures from that feed would likely be considered a copyright infringement (and could bring with it some serious liability).

One grain of salt to add to the above email: I believe a lot of things about Dave, but I have trouble believing that he’d be so stupid as to distribute these images without permission from the AP.

UPDATE: Got some down-time and called around. After a few transfers I was told that FlickrFan is an AP Digital client, although most of the people I talked to had the same reaction cited in the email. What that means, of course, is that Dave is paying for all of us to see the photos. I didn’t get the sense that anyone I talked to really understood the repercussions of allowing thousands of AP photos to be automatically downloaded to one’s harddrive but that’s not really my concern. It appears that FlickrFan is licensed. (While posting this update I got an email from the previous emailer saying essentially the same thing.)

Here’s pretty much the bottom line: when you post something — anything — publicly on the web you’re basically giving the world the freedom to take a copy of it for their own personal use and enjoyment. Not to sell, not to display publicly, not to give away, but for personal, private use.

Lane Hartwell says, in a comment:

if I have my images marked ALL RIGHTS RESERVED I mean just that…no reproduction in any form without my consent.

Unfortunately for her, that’s not really how it works. In fact, it really can’t work that way. It’s impossible for Computer B to display an image that’s stored on Computer A without reproduction. Does Lane really expect everyone who loads up Flickr to pick up the phone and call her before their browser makes a cache copy?

Besides, isn’t the real problem here that Flickr is transmitting the URLs of JPGs that are supposed to be marked “all rights reserved”?

After all, when Dave says: “When you publish an RSS feed with enclosures you’re inviting people to download your content and store it locally.” He’s absolutely right — that’s the whole point of RSS enclosures.

Arguing that downloading things from RSS enclosures is copyright infringement is like putting all of your valuables in a vending machine and then trying to press charges against the people who use it for “theft”.

Then again…

When Dave’s website was being marked up by Google’s Toolbar he didn’t like it, but it was basically the same thing as FlickrFan is doing (although far more innocuous). If we’re very, very generous to FlickrFan, we can say that the software is remixing Flickr so that we can view it our own way, which is what Google Toolbar did when it added links to pages at our request.

The contrast is that in the first scenario it was Dave’s site being remixed and here Dave is the remixer. In Dave’s world, that makes all the difference.