Transcript from April 20, 2006 presentation:
Mia Wombat: Shall we start?
...Hopefully, the ideas I throw out there stimulate some debate and questions and so we can maybe have a more interactive session once I've gone through the slides we're going to make a transcript of this, by the way, so if anyone doesn't want to be included in the transcript please IM me.
Just to set the framework: copyright law is the law that governs creative expression. It is intended to achieve a balance between - sorry, the slides might take a little while to load-- on the one hand, providing incentives to creators in the form of a grant of monopoly rights to their creations, and on the other hand, promoting the dissemination of creative works to the public .
Current debates that rage around the issue of copyright is about whether that balance is being fairly struck. There is a natural tension that exists between these two goals. Exclusive control of certain acts such as the right to copy, the right to adapt, the right to distribute a creative work, and public benefit from access to creative work.
With the advent of digital technologies that tension was exacerbated . The very functioning of digital technologies cause temporary copies of content and software to be made and from those temporary copies, permanent copies can be made. This implicates copyright's core right-- the right to copy. Digital technologies also allow us to manipulate and share content in unprecedented ways which implicates copyright's other exclusive rights.
A virtual world like SL exemplifies this digital tension.
Everything we do here implicates copyright. The text I am typing now, the script that creates this auditorium, the visual images we see, the snapshots we take. All of these are copyrightable works that can be saved and manipulated and shared. Virtual worlds such as SL introduces a new genre of experience where consumption and production are synonymous, where we as consumers buy into a piece of entertainment to produce our own entertainment . This hybrid role of a consumer/producer has been described as that of a "conducer." And so the question arises as to who owns this creativity of the conducer.
When you think about who contributes what to a virtual world, there are really two spaces. The first is a topography of space which is a set of pre-determined constraints created by the original developer. The original world developer develops the initial code for the world and sets out the basic parameters for the world. The second is the possibility space which is the realm in which we as participants can choose to create and experience a range of variables. This world gets populated by us, our interactions with each other and our creativity but all within the series of parameters set by the initial developer.
This conducer phenomenon is not just limited to virtual worlds such as Second Life. It is reflective of the greater interactivity which digital technologies as a whole enable for us all to experience information and entertainment. It is in virtual worlds such as SL, however, that this phenomenon is most apparent. And it raises foundational questions such as, what is authorship, and who is entitled to claim copyright?s exclusive rights as an author and owner of copyright to in world creativity. Does the law recognize creativity in only the topography space? Or only the possibility space? Or both?
So you will be pleased and perhaps not surprised to know that no court in the US has considered this to date.
There have been cases in the mid-1980s that considered the issue of video games. These cases are not directly analogous to virtual worlds such as SL. Virtual worlds such as SL allow greater interactivity. Video game technology allowed only a more limited level of participant interaction.
Another point of difference is that the cases were brought between competing video game providers. They did not involve disputes between game developers and users of those games. So the perspective of the court was focused differently: who owns copyright as between two different companies, not who owns copyright as between a developer and participants. But the cases are interesting nonetheless...
In one of the cases, Midway Manufacturing Co. versus Artic International, Inc., the judge said of gamer participation: ?Playing a video game is more like changing channels on a television than it is like writing a novel or painting a picture. The player of a video game does not have any control over the sequence of images that appears on the video game screen. He cannot create any sequence he wants out of the images stored on the game?s circuit boards. The most he can do is choose one of a limited number of sequences the game allows him to choose. He is unlike the writer or the painter because the video game in effect writes the sentences and paints the painting for him; he merely chooses one of the sentences stored in its memory, one of the paintings stored in its collection.?
In another case, Stern Electronics v. Kaufman, the defendant argued that the plaintiff did not have a copyright in the game because the images that appeared on the screen during each game play varied with player interaction, they were not sufficiently fixed or original to attract copyright protection. That court dismissed this argument. A CD is a sequence of bits of finite length. The musician is just choosing one of a finite number of large numbers for their music (in my humble opinion). It said that that although that while there were several aspects of a user?s experience of a game that remained constant during each play of the game, some aspects may not be seen or heard each time the game is played. But the sights and sounds were stored and capable of being seen, as thus, were a copyrightable work.
In both cases, it seems as though the courts focused on the topography of space. And recognized a copyright owned by the original developers by their act of setting the parameters for the game. Both cases, particularly Midway, did not recognize participant interaction, in Midway going so far as to say that players were not real authors or painters.
The courts disregarded the "possibility space." Obviously, the technology was come a long way since the early 80s. The level of interactivity particularly for virtual world such as SL has increased considerably since these cases were decided.
Pennie Strauss: What court? It can wait to the end if you wish.
Mia Wombat: Not a problem. Just checking the exact citations? [pause] The Midway case was a Seventh Circuit Court of appeals case, which is for the area around Chicago. The stern case was a Second Circuit case, which sits around New York City. Both Appeals cases, though, which means kinda important.
Pennie Strauss [grinning]: Aye... thank you.
Mia Wombat: So just to finish up... A court could hold that conducer creativity was merely a derivative work based on the topography space, copyrighted to the original developer and not sufficiently deserving of its own separate copyright owned by the participant. And many developers, of course, have structured their Terms of Service to assert that all rights to in-world items are owned by them. And they have used this to also assert control in relation to out-of-world references to in-world events.
As we all know, SL has taken a different tack. Second Life's Terms of Service acknowledge that participants own the Intellectual Property rights to their creations. This is a great recognition of the conducer nature of worlds such as SL and the role that participants play to create and breathe life into such worlds. And, of course, because SL recognizes participants' rights to their own creations, this gives rise to the possibility for each of us to choose to apply Creative Commons licenses to our in-world creations.
In other online worlds, where the original developer claims all rights to everything in the world, individual creators and participants cannot use CC licensing because they have no rights to what they do in world. But in SL, as copyright owner of that which you create, you can choose to apply a CC license that suits your preferences to your creations.
Creative Commons licensing is designed to give individual creators an easy way to manage their copyright, and assert "some rights reserved" as opposed to the default "all rights reserved" level of copyright protection that attaches to a creative work. In an "all rights reserved" world, you must assume that you cannot do anything without asking for separate and special permission other than passively receive content.
In a "some rights reserved" world, you can clearly know and understand what you can or cannot do with a piece of content. CC licensing enables the conducer to legally engage with the content they encounter. CC licensing empowers content creators to clearly signal to conducers that they welcome their engagement with their creativity. And thanks to Zarf Vontongerloo, there is a CC license generator in world which lets you choose from the basic CC licenses by which to manage your copyright if you choose to.
Rizzermon Sopor: Could I CC license my avatar then?
FromMarkPerrys Hand: "Conducer" - sounds like another made-up word.
Mia Wombat [grinning]: "Conducer" is another made up word. [To Sopor] And if the avatar is your own creation, then you should be able to CC license it if that matches your preferences.
So I can explain the CC license conditions if people are interested?
Pennie Strauss and Endymion Mandelbrot [in unison from the audience]: Yes, please do.
Mia Wombat: OK. All CC licenses require attribution. The license generator lets you then mix and match between three additional license conditions. "NonCommercial", i.e., "Please feel free to use my work but don't make money from it.?" "No Derivatives", i.e., "Please feel free to use my work but only in verbatim form, please don?t change it." "ShareAlike", i.e., "Please feel free to make derivatives but if you do please put them back in the commons, share your derivatives under the same license terms (this is most similar to the copyleft condition, for those familiar with open source)."
These license options produce six different licenses. The least restrictive is the Attribution license which says "Feel free to copy my work, distribute it, change, all for commercial and non-commercial purposes, provided you give attribution." The most restrictive is the Attribution-NonCommercial, NoDerivatives license, which says "Please feel free to copy and distribute my work but only in verbatim form, for noncommercial purposes, and give me attribution."
Does anyone have any questions or comments?
Rizzermon Sopor: How about CC licensing of everything I say in-world? That is also possible?
Mia Wombat: Not sure how that would technically work to CC license your text in the text box, but yes.
Jarod Godel: Which is better for a conducer environment: CC or public domain?
Mia Wombat: So public domain means no copyright restrictions applies, so if it's in the public domain it is very conducive to the conducer environment.
Pennie Strauss: But even Public Domain can be limited, can it not?
Mia Wombat: No.
Joi Ito: Having attribution required or not has a big impact on the nature of the community around a collection of works. You would attract/create different behavior in either case.
[Some cross-talk due to technical glitches with "hearing" chat. Questions come up about her usage and meaning of "conducer"]
Mia Wombat: OK, so I mean it here, in the sense of a merging of the producer and consumer functions. A conducer obviously causes things to come about in my meaning, but it is more focused on the blurring of traditional boundaries.
Abaga Rutabaga: I love the term, did you coin it?
Mia Wombat: No, I didn't. I can send a reference for the person who coined the term that I can send you offline. I came across researching for a virtual worlds paper. And similarly loved it.
Cletus Rothschild: If I am an independent content producer that uses a CC license and a corporation violates the license, what action can I pursue assuming that I don't have comparable resources?
Mia Wombat: If you use a CC license and someone violates it then the license automatically terminates and the big corporation becomes an infringer, and you have the usual rights at law. In our experience, this is usually enough to get people to remedy their violation, and we help put people who need relief in touch with lawyers to assist them if they need it.
[Joi Ito excuses himself to go to the airport]
Nic Marx: Often the best enforcement for open licenses is done by bad press and community protest-- as we see in the free software sphere, license violations rarely get to court.
Mia Wombat: Yeah, and community and bad press keeps the pressure on.
Cletus Rothschild: Has there ever been a situation where this has to be pursued in court for extended periods?
Mia Wombat: Yes, there has been a case in the Netherlands: A Dutch publisher was held to have violated the license condition. There hasn't been a case in the States yet. There has also been a case in Spain, but it didn't involve whether our licenses were enforceable.
Icky Commons: Mia, can you give an example of places other than SL where we operate as conducers?
Mia Wombat: So I think that there are many forms in which we operate as conducers. So much that we find on the Web we can take and manipulate and repurpose into our own. There are 7 million CC-licensed images on Flickr that people take and put on their blogs.
Illykai Pussycat: There's an interesting example of acting as conducers in the roleplaying games hobby. Gamers create their own stories and characters. Recently, though, White Wolf, a games company, required that people must pay a fee and register if they charge a fee to run the game. The justification for this being that the game depends on their copyrighted material.
Abaga Rutabaga: Mia-- in Second Life, we all go by different names. Does that have any impact on our own use of CC?
Mia Wombat: There is no reason to think that a CC license will not be held up in a US court. I don't think that using a pseudonym impacts the use of CC. Many people use a different name online.
Nic Marx: I've heard rumors that Linden Lab was considering integrating CC licenses directly in the SL client-- is this a real possibility?
Mia Wombat: When I talked with the people at Linden, they said they wanted to give people the choice as to whether they used CC licenses or not. Not to make it a default, which is kind of what CC is about-- giving people options.
Zenigma Suntzu: I have a proposal to integrate CC into the SL system... I'd like to at least see a place to specify your intended license in the "properties" metadata [of objects you create]. See [this Resident-voted proposition for a new feature.]
Jarod Godel: Are "conducer" and "remix" synonymous ideas?
Mia Wombat: I think conducer and remix are similar concepts, but the conducer is the person, remix is what you do to the thing.
ChuckNorris Mission: How much "derivation" can an object stand until it loses any reasonable semblance to the original object that held the CC license?
Mia Wombat: If the CC license was not enforceable, then ordinary copyright rules would presumably apply. As a lawyer though, you know I love to say that it depends on the facts.
ChuckNorris Mission grins.
Mia Wombat: What constitutes a derivative is an interesting question that is really not easily answerable. Obviously at some point a derivation is not based on the original work, but a recent US court held that really small samples required the copyright owner's permission. So maybe even tiny amounts could still be a derivative.
Jarod Godel: Have there been any studies that compare CC and Public Domain's impact on creativity?
Rizzermon Sopor: CC licensing is not intent on doing away with copyright , just a license to give up some rights if one chooses, correct?
Mia Wombat: No studies on CC v. PD - we wish!!! And yes, CC is not about giving up copyright-- it is about licensing some rights to the public if you choose. It's a voluntary system.
Nic Marx: Is using CC music on a parcel in a house in SL, where you also vend items, a violation of the NC licenses?*
Jarod Godel: Re: music samples-- was that the Grey Album case?
Mia Wombat: No, it was another case. But the Grey case is a great example of how crazy things can be under the law.
ChuckNorris Mission [winking]: We'll need paternity/DNA testing on content to determine who the parents are...
Mia Wombat [laughing]: The privacy advocates would love DNA testing...
Dexter Aquitaine: Is it appropriate to use CC licensing for SL scripts?
Mia Wombat: So I probably do not understand enough about scripts. In general CC licenses are designed for content, there are software licenses for code. But I'm not sure if people can/want to open source SL scripts. I should probably investigate in more detail.
Dexter Aquitaine: Yep, some have open-sourced scripts.
Nic Marx: Open question: What will happen to the SL economy if much of the content available here is freely distributable?
Zenigma Suntzu: People are doing so... the Box Office sponsored by Foundation For Rich Content [an SL building group] is CC with attribution (intentionally allowing commercial derivatives).
Jarod Godel: Technically speaking, most all content is freely distributable in Second Life. GLIntercept and OGLE allow you to grab textures and shapes, and [chat] listeners and logs give you text. So far the economy has held up.
Mia Wombat: CC licensing is fair use plus ( i.e., it gives a layer of permissions on top of fair use). As for the economy and whether CC can be held up in SL - we are hoping to encourage new business models and innovative ways of interacting and making money.
Pennie Strauss: Will CC licensing hold up in SL?
Mia Wombat: Yes, copyright will hold up in SL in a more general sense. It is a question of who owns it and what people can do with it. Copyright equals original, creative expression in tangible form - that is, the images and code and text we see and record
Rizzermon Sopor: Mia, any comments about groups saying that in the digital age copyright is or is becoming a moot point? Maybe this question is waaay off topic, if so disregard
Mia Wombat [laughs]: So the argument that copyright is dead or about to die has been going on since the Internet first went commercial but someone forgot to tell the content owners who continually enforce it in the courts and get new legislation passed to protect it - including trying to change how our tech tools are to protect copyright.
Pennie Strauss: Going beyond scripts to images... be it textures for walls or original art imported to SL. Will a Copyright hold up in SL in a more traditional sense?
Jarod Godel: The ones who don't use CC?
Endymion Mandelbrot: Perhaps a Creative Commons SL store on this island would be a good way to spread the CC ideals.
Rizzermon Sopor: Just because Linden Lab "recognizes" content creator rights in SL, do they even have the legal right to do that, or might that need tested in court some day?
Mia Wombat: So I think they do have the legal right to do it. The bigger question is for those providers who claim all rights in all content, including user-generated content-- do they have the right to do that? Copyright does not have to be registered to be enforced.
Jarod Godel: Does Linden Lab's [Terms of Service] clause "you [then user] automatically grant ... to Linden: (a) a royalty-free, fully paid-up, perpetual, irrevocable, non-exclusive right and license to use and reproduce ... any of your Content in any or all media for marketing" affect ...the Creative Commons licensing?
Mia Wombat: No, that Terms of Service is a license that can co-exist with a CC license. The CC license is non-exclusive. So is the Linden license. We are moving to "disambiguate" our licenses so people can be very specific about which license they support and which they don't.
Jarod Godel: So, would you recommend all MMOGs support CC? I've heard that "City of Heroes" retains ownership of characters so they can use player characters in comics without worrying about copyright. Since SL seems to have a co-license that allows user ownership and "provider" marketing access, is there anything besides fear of change preventing any game from using CC?
Mia Wombat: No, other games could do it-- but they would have to give up some control... which can be painful. Mia smiles.
FromMarkPerrys Hand (from the audience): Hi everyone, just a quick note to invite you to an event we're running next week, for World IP Day QUT. They run the Australian Creative Commons project (I'm visiting). We're going to be holding a discussion: "21st Century Creativity in a Copyright World: How Can the Potential Be Realized?" We have some good speakers, including Richard Neville, Toby Miller, Professor Brian Fitzgerald and self, on 9pm SLT, Tuesday 25 April 2006, at Pooley.
Mia Wombat: Yes, we can all continue these discussions as the event next week!!
We have some CC t-shirts if people are interested.
Audience applause, cheers, and a rush to grab Creative Commons T-shirts.
Credits: Main Creative Commons theater made and donated by the Electric Sheep Company. Kula Roman amphitheater created and donated by Aimee Weber. Transcript provided by Zenigmu Suntzu; backup by Genevieve Junot. Linden Lab CC-in-SL coordinator: Liana Linden.
During crosschat, a couple questions were inadvertantly left unanswered. I'll be contacting Mia Wombat to get her reply to them in the Comments to this post.
ChuckNorris Mission: If I create a complex piece of content from several pieces of CC licensed content one of which is non-commercial, is there any point at which I can use the new object for commercial reasons?
Nic Marx: Is using CC music on a parcel in a house in SL, where you also vend items, a violation of the NC licenses?