Wednesday, April 23, 2014

when "open" means "inferior"



I await with profound impatience the day when much if not all digital jargon appears on the Banished Words List from Lake Superior State University. LSSU has earned a well-deserved reputation (and a special place in my heart) for identifying the overuse and misuse of jargony catch-phrases that infect the popular lexicon and make us all just a little bit less exact than we perhaps should be in our communication.

The prominence of "selfie" at the top of the LSSU list this year is reason for hope, I think, as were previous appearances by "trending," "viral" and "fail." I've been running a personal campaign against "mash-up" for about six years now, and if "hack" doesn't make the list soon, there is no justice. With any luck, the online havoc created by this month's Heartbleed bug will have rocketed the cutesy term "open" or its extended versions "open-source" and "open access" to the top of the list - to be banished before their source word loses its meaning altogether.

In the last year, I've noticed with some hilarity a local Toronto home alarm service advertising itself with bold claims that it uses "open access" technology in its systems. Why, I wonder, would "open access" ever be thought of as a plus for something designed to secure one's property? What this service actually means is that it uses a system of direct access communication to local fire departments in order to cut response times on fire calls. Why, then, don't they say direct access? I suppose because "open" access sounds so much more welcoming and friendly - look, it's open; that MUST be good.

Well, as we've recently learned the hard way, open ain't always good. This past weekend, the New York Times published this article by Nicole Perlroth suggesting the recently revealed extreme vulnerability of much of our online commerce and communications systems is directly linked to the openness of these systems.
"Much of the invisible backbone of websites from Google to Amazon to the Federal Bureau of Investigation was built by volunteer programmers in what is known as the open-source community. Heartbleed originated in this community..."
The fact that the Heartbleed bug seems to have been surreptitiously undermining our global web security for up to two years before anyone noticed should make us all pause to re-assess how we feel about the fashionable ubiquitousness of "open." When the door to a bar is open, that's a good thing (almost always). When the door to an airliner is open, 30,000 feet up, something's probably gone wrong.

I did a quick search of the term "open source" on the New York Times website and found, naturally, that its use has increased dramatically since the turn of the 21st century and that, for the most part, it carries with it an aura of goodness. But if we look a bit further back, one notes the term has greater depth and darker connotations. A 1931 article on hygiene in the school system warns of "open sources of contagion"; a book review refers to "open sources of danger"; many articles praise the use of "open sources" for domestic and international spying.

But why would something with declared positive intentions, like the open source software movement, run into such a diabolical problem as Heartbleed. According to the New York Times, it all comes down to money.
"... for those that do work on this [open source coding and bug-checking], there's no financial support, no salaries, no health insurance... They either have to live like monks or work nights and weekends. That is a recipe for serious trouble down the road."
In other words, according to those most invested in the open source movement the open source economy would work a whole lot better if those creating and maintaining open source code got paid well to do so.

Of course, this has applications beyond the world of coding. Many educational institutions these days are banking big on open-access and open-source learning materials as a means to save money. While backing out of licensing arrangements that pay creators legally-required royalties every time our work is copied and used in the classroom, many schools reference the increased availability of open access materials. Why pay for something when you can get something else for free?

Because, as the Heartbleed bug has so dramatically demonstrated, when open also means cheap you get what you pay for.


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Image courtesy the open source of my own vacation snapshots. No one was paid for that photo, and I believe it shows it.



Thursday, April 17, 2014

back down the rabbit hole we go

“Alice came to a fork in the road. 'Which road do I take?' she asked.
'Where do you want to go?' responded the Cheshire Cat.
'I don't know,' Alice answered.
'Then,' said the Cat, 'it doesn't matter.” 

Trying to keep track of Canadian education's claims about copyright is a lot like trying to follow an agitated white rabbit with a pocket watch. Follow too closely and you're likely to end up in a wonderland where up is down and you'll almost certainly be asked to believe...


"...as many as six impossible things before breakfast." 

Anyone who wonders why the issue of educational copying is so sunk in confusion in Canada, need look no further than this blog posting from free-culture megaphone, Michael Geist. In it, Geist coyly suggests that Canadian creators really have nothing to complain about these days since we seemed well aware of "the effect of the fair dealing legislative change in Bill C-32/C-11" well before the new law was passed. If we all knew what was intended with the legislative change, shouldn't we all accept the change? Look, we predicted what the new law would do, so if we were worried about it we should have stopped it. Right?

"I can't go back to yesterday because I was a different person then."

Did we all know what was intended? Did the legislators even know what was intended? Hard to tell, because words seem to have lost all meaning in this strange new world of maddeningly smiling tenured professors.

Back before the legislative change, in testimony before a Senate Sub-Committee, Geist assured Canadians "the government rightly rejected misleading claims that the changes will permit unlimited, uncompensated copying" (emphasis mine). Yet, today's blog posting from Geist seems to suggest those earlier claims were not misleading, but were "unequivocal positions, which the government rejected."

An outcome described by Canadian creators, and rejected as misleading by both Geist and the government is now what was intended all along?

“I'm afraid I can't explain myself, sir. Because I am not myself, you see?” 

Way back in 2010, Geist interviewed himself about potential changes to the law and whether or not creator fears were warranted. In that instructive document we see this:

Q. Won't the fair dealing reforms allow education to make unlimited copies without compensation?

A. No

Q. Won't extending fair dealing to education dramatically reshape the ability for education institutions to copy works without compensation?

A. No.

Q. Isn't the fair dealing reforms (sic) really about saving money for education?

A. No.

Q. Aren't educational institutions reducing payments to Access Copyright because of the C-32 fair dealing reforms?

A. No.


“In another moment down went Alice after it, 
never once considering how in the world she was to get out again.”


Curiouser and curiouser, I say.

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Wednesday, April 16, 2014

friends of the court


Authors Around the World Tell Google to Step Back

I'm sure it's felt at times like a lonely fight for the US Authors Guild as they persevere in their lawsuit against Google, Inc. The AG launched its action against the global search leader back in 2005, citing the works of a small number of American authors (including the great Jim Bouton, baseballer turned author) "and on behalf of all others similarly situated."

After all, in an increasingly borderless world, Google's wholesale appropriation - sorry, alleged wholesale appropriation - of millions of books in copyright would surely, eventually, affect the rights of all authors, no matter their nationality. But this fight is being fought on American turf, so the valiant little Authors Guild is stepping into the ring for all of us, and against an opponent the size of a small planet. Last week, the AG filed an appeal brief to the US Court of Appeals for the Second Circuit Court in New York - an appeal being necessary because, somehow, the Second Circuit previously found that the unpermitted, uncompensated copying of millions of complete, in-copyright works by a huge for-profit corporation with an eye on increasing their overall profitability was somehow a "fair use." That ruling came down last fall, and the head-shaking among professional creators hasn't stopped since.*

And so, the rest of the world has stepped up to support the AG's appeal. This week, no fewer than 8 amicus briefs were filed with the court declaring the original ruling unacceptable.Two of those briefs included participation from The Writers' Union of Canada. Longtime TWUC members Margaret Atwood, Lawrence Hill and Yann Martel joined a brief prepared on behalf of 17 of the world's most beloved authors. As a founding member of the International Authors Forum, TWUC itself is represented in the IAF's amicus brief before the court.



Some highlights:

"In exchange for access to books for copying — which the universities were not authorized to give — Google distributed to the universities digital copies of all the books copied from their collections — which Google was not authorized to do. The result of this transaction was the copying of over 20 million books without the permission of any copyright owner..." (Gladwell, et al) 
"This Court should not fall victim to Google’s attempt to avoid the limits of the law by presenting the broader “Books Program” as a fait accompli that is too big to fail. No example of fair use allows the degree of copying undertaken by Google." (Gladwell, et al) 
"...the issue comes down to this: an author asked about why he wrote what he did may give many answers. He may say that it was a labor of love. He may say that it was to make a living. He may say many things. But what he will not say is that he wrote his book so it could be subsumed into a corporate meta-database optimized for searching." (IAF) 
"The mere fact that Google’s infringement scheme is clever should not make it permissible under the law." (IAF)

Thanks to all around the world who continue to fight the good fight on this one, and special thanks to our friends in New York. 


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*In case anyone's wondering, there is historical precedent for head-shakingly bizarre rulings coming from New York courts. In 1883, New York State passed a law aimed at stopping cigar-making corporations from  using labor situated in grossly unsanitary tenement housing. The companies brought suit against the State and eventually won when the court declared "the legislation did not constitute a legitimate use of the state's police power to regulate behavior detrimental to the public welfare for tobacco was in no way 'injurious to the public health.' On the contrary, it was 'a disinfectant and a prophylactic.'" (quoted from The Bully Pulpit, by Doris Kearns Goodwin)

Wednesday, March 26, 2014

Canadian University Degrees Now Free!

I posted earlier about a writer protest at the University of Toronto. Here is the video from that very cold day.



... and from the YouTube page:

Many Canadian colleges and universities are copying and using massive amounts of published work without paying for it or even informing the writers and publishers. The Writers' Union of Canada (TWUC) and the Professional Writers Association of Canada (PWAC) wondered how those schools would feel if their work was copied and given away for free, so we went to the University of Toronto and handed out "free" copies of university degrees. It turns out, students love getting free degrees, but universities don't like it so much when writers give away "education".

On January 24th, 2014, in -35C wind-chill, a small group of writers documented the "Free Degrees" protest.

Many thanks to our partner organizations, the League of Canadian Poets (LCP), The Playwrights Guild of Canada (PGC) and the Canadian Society of Children's Authors, Illustrators and Performers (CANSCAIP).

Please share the link to this video as widely as you can - it's free!

For more information about the dramatic expansion of unpermitted copying at Canadian universities and colleges, check out these links on The Writers' Union of Canada's website:

A Fair and Better Way Forward

It's Time to Talk About Fair Dealing

Quill & Quire Covers TWUC Protest of UBC Policy



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Thursday, March 13, 2014

learning how to NOT get along


People often ask me why I get involved in confrontational tactics around copyright. Why do I go to meetings to which I'm not invited? Why do I organize light-hearted, yet serious protests on very cold campuses? Why don't I just sit down with educators and talk about this stuff? Well, here's an answer to those questions.

I do talk to students, teachers and librarians all the time about my own personal copyright concerns, and the copyright concerns of my constituency. In the past year, I've given many talks and presentations on the subject in classrooms, and I have more presentations scheduled soon. Often when I'm talking to these folks we disagree on small points. Mostly, we agree on the main points: 

  • Students need affordable materials (and affordable education in general); 
  • teachers need ease of access; 
  • library professionals need flexibility of use within a constrained budget; 
  • writers and publishers need to be paid fairly for their work and property. 

In my experience, everyone agrees with these starting points, and everyone is willing to keep talking once those points are established. Everyone, that is, except the folks who actually make the ultimate decisions about copying in schools and on campuses.

Students, teachers, writers and library workers can chat all we want about this stuff, but if the budget- and policy-makers refuse to even come to the table for a talk, there's little to no point in the rest of us reaching a consensus position.

As a member of the Canadian Copyright Institute (CCI), The Writers' Union of Canada (TWUC) recently participated in the publication of A Fair and Better Way Forward. The CCI is a decades old cooperative group representing, essentially, the entire Canadian writing and publishing sector on matters of copyright. TWUC has loaded A Fair and Better Way Forward on its website, along with the CCI's recent public release.

A Fair and Better Way Forward is a position paper - a fair-minded analysis of recent changes to the Copyright Act. It contains, I believe, all of the consensus starting points I mentioned. It also suggests that certain overly broad interpretations of copyright changes have led to a damaging expansion of industrial-scale copying, without payment, in schools and on campuses across the country, and that such uncompensated use is unsustainable.

At the end of 2013, CCI sent their paper to provincial Ministries of Education, the heads of all post-secondary administrations and all relevant educational organizations in Canada, with an invitation to meet and discuss the issues. To date, no organization or administration has agreed to talk. 

The invitation remains open. 

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