Journal tags: law

I work with words. Sometimes they’re my words. Sometimes they’re words that my colleagues have written:

One of my roles at Clearleft is “content buddy.” If anyone is writing a talk, or a blog post, or a proposal and they want an extra pair of eyes on it, I’m there to help.

I also work with web technologies, usually front-of-the-front-end stuff. HTML, CSS, and JavaScript. The technologies that users experience directly in web browsers.

I think a lot about design principles for the web. The two principles I keep coming back to are the robustness principle and the principle of least power.

When it comes to words, the guide that I return to again and again is George Orwell, specifically his short essay, Politics and the English Language.

Towards the end, he offers some rules for writing.

1. Never use a metaphor, simile, or other figure of speech which you are used to seeing in print.
2. Never use a long word where a short one will do.
3. If it is possible to cut a word out, always cut it out.
4. Never use the passive where you can use the active.
5. Never use a foreign phrase, a scientific word, or a jargon word if you can think of an everyday English equivalent.
6. Break any of these rules sooner than say anything outright barbarous.

These look a lot like design principles. Not only that, but some of them look like specific design principles. Take the robustness principle:

Be conservative in what you send, be liberal in what you accept.

That first part applies to Orwell’s third rule:

If it is possible to cut a word out, always cut it out.

Be conservative in what words you send.

Then there’s the principle of least power:

Choose the least powerful language suitable for a given purpose.

Compare that to Orwell’s second rule:

Never use a long word where a short one will do.

That could be rephrased as:

Choose the shortest word suitable for a given purpose.

Or, going in the other direction, the principle of least power could be rephrased in Orwell’s terms as:

Never use a powerful language where a simple language will do.

Oh, I like that! I like that a lot.

I was really looking forward to speaking at An Event Apart this year. I was going to be on the line-up for Seattle, Boston, and Minneapolis; three cities I really like.

At the start of the year, I decided to get a head-start on my new talk so I wouldn’t be too stressed out when the first event approached. I spent most of January and February going through the chaotic process of assembling a semi-coherent presentation out of a katamari of vague thoughts.

I was making good progress. Then The Situation happened. One by one, the in-person editions of An Event Apart were cancelled (quite rightly). But my talk preparation hasn’t been in vain. I’ll be presenting my talk at an online edition of An Event Apart on Monday, August 17th.

You should attend. Not for my talk, but for Ire’s talk on Future-Proof CSS which sounds like it was made for me:

In this talk, we’ll cover how to write CSS that stands the test of time. From progressive enhancement techniques to accessibility considerations, we’ll learn how to write CSS for 100 years in the future (and, of course, today).

My talk will be about design principles …kinda. As usual, it will be quite a rambling affair. At this point I almost take pride in evoking a reaction of “where’s he going with this?” during the first ten minutes of a talk.

When I do actually get around to the point of the talk—design principles—I ask whether it’s possible to have such a thing as universal principles. After all, the whole point of design principles is that they’re specific to an endeavour, whether that’s a company, an organisation, or a product.

I think that some principles are, if not universal, then at least very widely applicable. I’ve written before about two of my favourites: the robustness principle and the principle of least power:

There’s no shortage of principles, laws, and rules out there, and I find many of them very useful, but if I had to pick just two that are particularly applicable to my work, they would be the robustness principle and the rule of least of power.

What’s interesting about both of those principles is that they are imperative. They tell you how to act:

Be conservative in what you send, be liberal in what you accept.

Choose the least powerful language suitable for a given purpose.

Other princples are imperative, but they tell you what not to do. Take the razors of Occam and Hanlon, for example:

Entities are not to be multiplied without necessity.

Never attribute to malice that which is adequately explained by stupidity.

But these imperative principles are exceptions. The vast majority of “universal” principles take the form of laws that are observations. They describe the state of the world without providing any actions to take.

There’s Hofstadter’s Law, for example:

It always takes longer than you expect, even when you take into account Hofstadter’s Law.

Or Clarke’s third law:

Any sufficiently advanced technology is indistinguishable from magic.

By themselves, these observational laws are interesting but they leave it up to you to decide on a course of action. On the other hand, imperative principles tell you what to do but don’t tell you why.

It strikes me that it could be fun (and useful) to pair up observational and imperative principles:

Because of observation A, apply action B.

For example:

Because of Murphy’s Law, apply the principle of least power.

Or in its full form:

Because anything that can go wrong will go wrong, choose the least powerful language suitable for a given purpose.

I feel like the Jevons paradox is another observational principle that should inform our work on the web:

The Jevons paradox occurs when technological progress increases the efficiency with which a resource is used, but the rate of consumption of that resource rises because of increasing demand.

For example, even though devices, browsers, and networks are much, much better now than they were, say, ten years ago, that doesn’t mean that websites have become better or faster. Instead, it’s precisely because there’s more power available that people think nothing of throwing megabytes of JavaScript at users. See Scott’s theory that 5G Will Definitely Make the Web Slower, Maybe:

JavaScript size has ballooned as networks have improved.

This problem would be addressed if web developers were more conservative in what they sent. The robustness principle in action.

Because of the Jevons paradox, apply the robustness principle.

Admittedly, the expanded version of that is far too verbose:

Because technological progress increases the efficiency with which a resource is used, but the rate of consumption of that resource rises because of increasing demand, be conservative in what you send, be liberal in what you accept.

I’m sure there are more and better pairings to be made: an observational principle to tell you why you should take action, and an imperative principle to tell you what action you should take.

There’s a great article by Steven Garrity over on A List Apart called Design with Difficult Data. It runs through the advantages of using unusual content to stress-test interfaces, referencing Postel’s Law, AKA the robustness principle:

Be conservative in what you send, be liberal in what you accept.

Even though the robustness principle was formulated for packet-switching, I see it at work in all sorts of disciplines, including design. A good example is in best practices for designing forms:

Every field you ask users to fill out requires some effort. The more effort is needed to fill out a form, the less likely users will complete the form. That’s why the foundational rule of form design is shorter is better — get rid of all inessential fields.

In other words, be conservative in the number of form fields you send to users. But then, when it comes to users filling in those fields:

It’s very common for a few variations of an answer to a question to be possible; for example, when a form asks users to provide information about their state, and a user responds by typing their state’s abbreviation instead of the full name (for example, CA instead of California). The form should accept both formats, and it’s the developer job to convert the data into a consistent format.

In other words, be liberal in what you accept from users.

I find the robustness principle to be an immensely powerful way of figuring out how to approach many design problems. When it comes to figuring out what specific tools or technologies to use, there’s an equally useful principle: the rule of least power:

Choose the least powerful language suitable for a given purpose.

On the face of it, this sounds counter-intuitive; why forego a powerful technology in favour of something less powerful?

Well, power comes with a price. Powerful technologies tend to be more complex, which means they can be trickier to use and trickier to swap out later.

Take the front-end stack, for example: HTML, CSS, and JavaScript. HTML and CSS are declarative, so you don’t get as much precise control as you get with an imperative language like JavaScript. But JavaScript comes with a steeper learning curve and a stricter error-handling model than HTML or CSS.

As a general rule, it’s always worth asking if you can accomplish something with a less powerful technology:

In the web front-end stack — HTML, CSS, JS, and ARIA — if you can solve a problem with a simpler solution lower in the stack, you should. It’s less fragile, more foolproof, and just works.

• Instead of using JavaScript to do animation, see if you can do it in CSS instead.
• Instead of using JavaScript to do simple client-side form validation, try to use HTML input types and attributes like required.
• Instead of using ARIA to give a certain role value to a div or span, try to use a more suitable HTML element instead.

It sounds a lot like the KISS principle: Keep It Simple, Stupid. But whereas the KISS principle can be applied within a specific technology—like keeping your CSS manageable—the rule of least power is all about evaluating technology; choosing the most appropriate technology for the task at hand.

There are some associated principles, like YAGNI: You Ain’t Gonna Need It. That helps you avoid picking a technology that’s too powerful for your current needs, but which might be suitable in the future: premature optimisation. Or, as Rachel put it, stop solving problems you don’t yet have:

So make sure every bit of code added to your project is there for a reason you can explain, not just because it is part of some standard toolkit or boilerplate.

There’s no shortage of principles, laws, and rules out there, and I find many of them very useful, but if I had to pick just two that are particularly applicable to my work, they would be the robustness principle and the rule of least of power.

After all, if they’re good enough for Tim Berners-Lee…

Creative Commons licences have a variety of attributes, that can be combined together:

• No-derivatives: the work can be reused, but not altered.
• Attribution: the work must be credited.
• Share-alike: any derivates must share the same licence.
• Non-commercial: the work can be used, but not for commercial purposes.

That last one is important. If you don’t attach a non-commercial licence to your work, then your work can be resold for profit (it might be remixed first, or it might have to include your name—that all depends on what other attributes you’ve included in the licence).

If you’re not comfortable with anyone reselling your work, you should definitely choose a non-commercial licence.

Flickr is planning to sell canvas prints of photos that have been licensed under Creative Commons licenses that don’t include the non-commercial clause. They are perfectly within their rights to do this—this is exactly what the licence allows—but some people are very upset about it.

Jeffrey says it’s short-sighted and sucky because it violates the spirit in which the photos were originally licensed. I understand that feeling, but that’s simply not the way that the licences work. If you want to be able to say “It’s okay for some people to use my work for profit, but it’s not okay for others”, then you need to apply a more restrictive licence (like copyright, or Creative Commons Non-commercial) and then negotiate on a case-by-case basis for each usage.

But if you apply a licence that allows commercial usage, you must accept that there will be commercial usages that you aren’t comfortable with. Frankly, Flickr selling canvas prints of your photos is far from a worst-case scenario.

I licence my photos under a Creative Commons Attribution licence. That means they can be used anywhere—including being resold for profit—as long as I’m credited as the photographer. Because of that, my photos have shown up in all sorts of great places: food blogs, Wikipedia, travel guides, newspapers. But they’ve also shown up in some awful places, like Techcrunch. I might not like that, but it’s no good me complaining that an organisation (even one whose values I disagree with) is using my work exactly as the licence permits.

Before allowing commercial use of your creative works, you should ask “What’s the worst that could happen?” The worst that could happen includes scenarios like white supremacists, misogynists, or whacko conspiracy theorists using your work on their websites, newsletters, and billboards (with your name included if you’ve used an attribution licence). If you aren’t willing to live with that, do not allow commercial use of your work.

When I chose to apply a Creative Commons Attribution licence to my photographs, it was because I decided I could live with those worst-case scenarios. I decided that the potential positives outweighed the potential negatives. I stand by that decision. My photos might appear on a mudsucking site like Techcrunch, or get sold as canvas prints to make money for Flickr, but I’m willing to accept those usages in order to allow others to freely use my photos.

Some people have remarked that this move by Flickr to sell photos for profit will make people think twice about allowing commercial use of their work. To that I say …good! It has become clear that some people haven’t put enough thought into their licensing choices—they never asked “What’s the worst that could happen?”

And let’s be clear here: this isn’t some kind of bait’n’switch by Flickr. It’s not like liberal Creative Commons licensing is the default setting for photos hosted on that site. The default setting is copyright, all rights reserved. You have to actively choose a more liberal licence.

So I’m trying to figure out how it ended up that people chose the wrong licence for their photos. Because I want this to be perfectly clear: if you chose a licence that allows for commercial usage of your photos, but you’re now upset that a company is making commercial usage of your photos, you chose the wrong licence.

Perhaps the licence-choosing interface could have been clearer. Instead of simply saying “here’s what attribution means” or “here’s what non-commercial means”, perhaps it should also include lists of pros and cons: “here’s some of the uses you’ll be enabling”, but also “here’s the worst that could happen.”

Jen suggests a new Creative Commons licence that essentially inverts the current no-derivates licence; this would be a “derivative works only” licence. But unfortunately it sounds a bit too much like a read-my-mind licence:

What if I want to allow someone to use a photo in a conference slide deck, even if they are paid to present, but I don’t want to allow a company that sells stock photos to snatch up my photo and resell it?

Jen’s post is entitled I Don’t Want “Creative Commons By” To Mean You Can Rip Me Off …but that’s exactly what a Creative Commons licence without a non-commercial clause can mean. Of course, it’s not the only usage that such a licence allows (it allows many, many positive scenarios), but it’s no good pretending it were otherwise. If you’re not comfortable with that use-case, don’t enable it. Personally, I’m okay with that use-case because I believe it is offset by the more positive usages.

And that’s an important point: this is a personal decision, and not one to be taken lightly. Personally, I’m not a professional or even amateur photographer, so commercial uses of my photos are fine with me. Most professional photographers wouldn’t dream of allowing commercial use of their photos without payment, and rightly so. But even for non-professionals like myself, there are implications to allowing commercial use (one of those implications being that there will be usages you won’t necessarily be happy about).

So, going back to my earlier question, does the licence-choosing interface on Flickr make the implications of your choice clear?

Here’s the page for applying licences. You get to it by going to “Settings”, then “Privacy and Permissions,” then under “Defaults for new uploads,” the setting “What license will your content have.”

On that page, there’s a heading “Which license is right for you?” That has three hyperlinks:

1. A page on Creative Commons about the licences,
2. Frequently Asked Questions,
3. A page of issues specifically related to images.

In that list of Frequently Asked Questions, there’s What things should I think about before I apply a Creative Commons license? and How should I decide which license to choose? There’s some good advice in there (like when in doubt, talk to a lawyer), but at no point does it suggest that you should ask yourself “What’s the worst that could happen?”

So it certainly seems that Flickr could be doing a better job of making the consequences of your licensing choice clearer. That might have the effect of making it a scarier choice, and it might put some people off using Creative Commons licences. But I don’t think that’s a bad thing. I would much rather that people made an informed decision.

When I chose to apply a Creative Commons Attribution licence to my photos, I did not make the decision lightly. I assumed that others who made the same choice also understood the consequences of that decision. Now I’m not so sure. Now I think that some people made uninformed licensing decisions in the past, which explains why they’re upset now (and I’m not blaming them for making the wrong decision—Flickr, and even Creative Commons, could have done a better job of providing relevant, easily understable information).

But this is one Internet Outrage train that I won’t be climbing aboard. Alas, that means I must now be considered a corporate shill who’s sold out to The Man.

Pointing out that a particular Creative Commons licence allows the Klu Klux Klan to use your work isn’t the same as defending the Klu Klux Klan.

Pointing out that a particular Creative Commons licence allows a hardcore porn film to use your music isn’t the same as defending hardcore porn.

Pointing out that a particular Creative Commons licence allows Yahoo to flog canvas prints of your photos isn’t the same as defending Yahoo.

You never forget your first DMCA takedown notice. In my case it was the Perfect Pitch incident, in which an incompetent business was sending out automatic takedown notices to Google for any website that contained a combination of the words Burge Pitch Torrent. That situation, which affected The Session, was resolved with an apology from the offending party.

Now I’ve received my second DMCA takedown notice. Or rather, my hosting company has. This time it involves Huffduffer.

When I created Huffduffer, I thought about offering hosting for audio files. One of the reasons I decided not to is because of the potential legal pitfalls. As it stands, Huffduffer is pretty much entirely text—it just links to audio files elsewhere on the web. That’s basically what an RSS enclosure is: another form of hypertext.

Linking is simply the act of pointing to a resource, and apart from a few extreme cases, it isn’t illegal.

Now it could be argued that pointing to an audio file on another site through a Flash player (or HTML5 audio element) is more like hotlinking with an img element than regular linking through an a element. The legal status of hotlinking isn’t quite as clear cut as plain ol’ linking, as explained on the Chilling Effects site:

When people complain about inline images, they are most often complaining about web pages that include graphics from external sources. The legal status of inlining images without permission has not been settled.

So the situation with inline audio is similarly murky.

Here’s the threatening email that was sent to the hosting company:

Notice of Copyright Infringement. {Our ref: [$#121809/228552]}

Sender: Robert Nichol
AudioGO Ltd
The Home of BBC Audiobooks
St James House, The Square, Lower Bristol Road
Bath
BA2 3BH
Phone number not available

Recipient: Rackspace Hosting

RE: Copyright Infringement.

This notice complies with the Digital Millennium Copyright Act (17 U.S.C. §512(c)(3))

I, Robert Nichol, swear under penalty of perjury that I am authorised to act on behalf of AudioGO Ltd, the owner(s) of the copyright or of an exclusive licence in the work(s) The Moving Finger by Agatha Christie BBC Audio.

It has come to my attention that the website huffduffer.com is engaged in the electronic distribution of copies of these works. It is my good faith belief that the use of these works in this manner is not authorised by the copyright owner, his agent or the law. This is in clear violation of United States, European Union, and International copyright law, and I now request that you expeditiously remove this material from huffduffer.com, or block or disable access to it, as required under both US and EU law.

The works are The Moving Finger by Agatha Christie BBC Audio.

The following URLs identify the infringing files and the means to locate them.

https://huffduffer.com/TimesPastOTR/68635 (IP: 67.192.7.4)

The information in this notice is accurate and I request that you expeditiously remove or block or disable access to all the infringing material or the entire site.

/Robert Nichol/
Robert Nichol

Wednesday April 18, 2012

Initially, my hosting company rebutted Robert Nichol’s claim but he’s not letting it go. He insists that the offending URL be removed or he will get the servers taken offline. So now I’ve been asked by my host to delete the relevant page on Huffduffer.

But the question of whether audio hotlinking counts as copyright infringement is a moot point in this case…

Go to the page in question. If you try to play the audio file, or click on the “download” link, you will find yourself at a 404 page. Whatever infringing material may have once been located at the end of the link is long gone …and yet AudioGO Ltd are still insisting that the Huffduffer page be removed!

Just to be clear about this, Robert Nichol is using the Digital Millennium Copyright Act—and claiming “good faith belief” while doing so—to have a site removed from the web that mentions the name of a work by his client, and yet that site not only doesn’t host any infringing material, it doesn’t even link to any infringing material!

It seems that, once again, the DMCA is being used in a scattergun approach like a machine-gun in the hands of a child. There could be serious repercussions for Robert Nichol in abusing a piece of legislation in this way.

If I were to remove the page in question, even though it just contains linkrot, it would set a dangerous precedent. It would mean that if someone else—like you, for instance—were to create a page that contains the text “Agatha Christie — The Moving Finger” while pointing to a dead link …well, your hosting company might find themselves slapped with a takedown notice.

In that situation, you wouldn’t be able to copy and paste this markup into your blog, Tumblr, Facebook, or Google+ page:

<a href="http://dc436.4shared.com/img/892695085/b3c907d3/dlink__2Fdownload_2FaKhc8m9b_3Ftsid_3D20120318-72646-b4a59ab0/preview.mp3">Agatha Christie — The Moving Finger</a>

Remember: that link does not point to any infringing material. It points to nothing but a 404 page. There’s absolutely no way that you could have your site taken offline for pointing to a file that doesn’t exist, right?

That would be crazy.

The past

These talking machines are going to ruin the artistic development of music in this country. When I was a boy…in front of every house in the summer evenings, you would find young people together singing the songs of the day or old songs. Today you hear these infernal machines going night and day. We will not have a vocal cord left. The vocal cord will be eliminated by a process of evolution, as was the tail of man when he came from the ape.

—John Philip Sousa

The present

The future

The International Convention on Performing Rights is holding a third round of crisis talks in an attempt to stave off the final collapse of the WIPO music licensing regime. On the one hand, hard-liners representing the Copyright Control Association of America are pressing for restrictions on duplicating the altered emotional states associated with specific media performances: As a demonstration that they mean business, two “software engineers” in California have been kneecapped, tarred, feathered, and left for dead under placards accusing them of reverse-engineering movie plot lines using avatars of dead and out-of-copyright stars.

On the opposite side of the fence, the Association of Free Artists are demanding the right of perform music in public without a recording contract, and are denouncing the CCAA as being a tool of Mafiya apparachiks who have bought it from the moribund music industry in an attempt to go legit. FBI Director Leonid Kuibyshev responds by denying that the Mafiya is a significant presence in the United States. But the music biz’s position isn’t strengthened by the near collapse of the legitimate American entertainment industry, which has been accelerating ever since the nasty noughties.

—Accelerando by Charles Stross

Hanlon’s razor entreats us to:

Never attribute to malice that which can be adequately explained by stupidity.

While Clarke’s third law states that:

Any sufficiently advanced technology is indistinguishable from magic.

Mash them up and that leaves us with Clark’s law:

Any sufficiently advanced incompetence is indistinguishable from malice.

I have experienced a textbook case of extremely advanced incompetence.

When I wrote about the shenanigans of Perfect Pitch, in which a DMCA claim was used to remove a perfectly innocuous discussion on The Session from Google’s search index, I pondered about whether malice could be ascribed:

Could it be that the owner of perfectpitch.com sent a DMCA complaint to Google simply because another site was getting higher rankings for the phrase “perfect pitch”? If so, then that’s a whole new level of SEO snake-oilery.

In turns out that the correct cause is incompetence at a stunning level. I got an email from Gary Boucherle at perfectpitch.com who explained:

Periodically we’ve contacted Google to submit the following complaint:

We believe our copyrighted works have been illegally copied and made available for free download at the web sites listed below …

The following URL was one of hundreds of URLS (mostly torrent sites) found with the Google search terms Burge+Pitch+Torrent:

http://www.thesession.org/discussions/display/21250

While we try to check every URL to make sure it either contains torrents, or is a torrent file sharing site (not the case with this site), it was included with our complaint inadvertently.

So here’s what’s happening: A company is doing a search for a phrase on Google, making a list of all the URLs returned by that search and then submitting that list to Google as part of a DMCA claim. Google then removes all those URLs from its search index without verifying any infringement.

I subsequently had a phone conversation with Gary and he was quite contrite about his actions— although he did try to claim that the mere mention of torrents in an online discussion might be justification for a take down (a completely indefensible attitude).

The more I talked to him, the more I realised that he simply had no idea about the DMCA. He was completely oblivious to the potential consequences of his actions were he to lose a counter-claim in court.

Gary Bourcherle abused a piece of extremely poor legislation in a scattergun approach without even understanding what he was doing. It’s like putting guns into the hands of small children.

Well, Gary is very sorry now and promises he won’t do it again. He is going to contact Google and ask them to reinstate the discussion on The Session in the search index.

Here is an official statement of apology, sent by email for redistribution here or anywhere else (try to ignore the bits where The Session is referred to as “a blog”):

To All Readers:

Here at PerfectPitch.com we made a big mistake.

We instructed Google to block a blog site managed by Jeremy Keith, citing that they were in violation of the Digital Millennium Copyrights Act (DMCA). As per our request, Google did indeed remove this page from their search listings.

We wish to formally apologize to Mr. Keith and his bloggers for this mistake, for which we are deeply regretful.

Please understand that we had no intention whatsoever to suppress the speech on Mr. Keith’s page. Please know that we are ardent supporters and advocates of free speech for everyone.

We recognize this was a careless error, and there is really no excuse for this. Nevertheless, please permit us a moment to explain.

Here’s what happened:

We were actually submitting to Google a list of sites that were illegally distributing copies of our copyrighted intellectual property. We of course have every right to request that Google have these sites removed from their search engine results because we believe these sites violate the DMCA, which prohibits the illegal distribution of copyrighted materials over the internet.

To our shock and horror, an employee of ours mistakenly included Mr. Keith’s site in our list, merely because it made a reference to illegal copies of our course. Naturally, this is not grounds for removal of this page at Google. Our intention was only to remove actual pages where the course is being illegally distributed, and not any pages of free speech, such as Mr. Keith’s blog. This was a misjudgment and error on our employee’s side, and on behalf of our company, we sincerely apologize.

This event has never happened to us before when reporting illegal distribution of our materials. Please rest assured that we will redouble our efforts to ensure this never happens again.

We have requested that Google immediately reinstate this page in their search results, along with our apology to Google as well.

If we have offended any potential musicians who wished to purchase our best-selling, university verified ear training methods, again, we sincerely apologize. To make it up to you, we would invite you to try our courses at a substantial discount not offered to the general public, valid until the end of this month. Please go here to retrieve your special offer with our apologies:

http://www.discount-offer.perfectpitch.com

Again, please accept our sincere regrets for this goof.

Happy blogging, everyone.

Sincerely yours,
Gary Boucherle
PerfectPitch.com

Contact: http://www.PerfectPitch.com/contactus.htm

Apology accepted. Now don’t do it again.

No word from Google on their “obey first, ask questions never” approach to DMCA claims.

And if you thought the DMCA was a bad piece of legislation, just wait till ACTA arrives.

Now, if you’ll excuse me, I’m off to change my email signature to “Burge Pitch Torrent.” It has a nice ring to it, don’t you think? Like “Klaatu Barada Nikto”.

We were having a chat in the Clearleft office today about site stats and their relative uselessness; numbers about bounce rates are like eyetracking data—without knowing the context, they’re not going to tell you anything.

Anyway, I was reminded that I have an account over at Google Webmaster Tools set up for three of my sites: adactio.com, huffduffer.com and thesession.org. I logged in today for the first time in ages and started poking around.

I noticed that I had some unread messages. Who knew that Google Webmaster Tools has a messaging system? I guess all software really does evolve until it can send email.

One of the messages had the subject line Blocked URLs:

For legal reasons, we’ve excluded from our search results content located at or under the following URL/directory:

http://www.thesession.org/discussions/display/21250

This content has been removed from all Google search results.

Cause: Somone has filed a DMCA complaint against your site.

What now?

I visited the URL and found a fairly tame discussion about Perfect Pitch. Here’s the only part of the discussion that references an external resource in a non-flattering light:

I think that is referring to www.PerfectPitch.com. I’m not saying anything about such commercially-oriented courses because I don’t know them, but I think we’d all be wise to bear in mind the general comments voiced in the first two posts on this thread.

That single reference to a third-party site is, apparently, enough to trigger a DMCA complaint.

Google link to the complaint on Chilling Effects but that just says The cease-and-desist or legal threat you requested is not yet available. It does, however, list the party who sent the complaint: Boucherle.

By a staggering coincidence, Gary Boucherle of American Educational Music, Inc. is registered as the owner of perfectpitch.com.

So let’s get this straight. In a discussion about perfect pitch, someone mentions the website perfectpitch.com. They don’t repost any materials from the site. They don’t even link to the site. They don’t really say anything particularly disparaging. But it all takes is for the owner of perfectpitch.com to abuse the Digitial Millenium Copyright Act with a spurious complaint and just like that, Google removes the discussion from its search index.

To be fair, Google also explain how to file a counter-complaint. However, the part about agreeing to potentially show up in a court in California is somewhat off-putting for those of us, like me, who live outside the United States of America.

There is another possible explanation for this insane over-reaction; one that would explain why the offended party sent the complaint to Google rather than going down the more traditional route of threatening the ISP…

The Session has pretty good Google juice. The markup is pretty lean, the content is semantically structured and there’s plenty of inbound links. Could it be that the owner of perfectpitch.com sent a DMCA complaint to Google simply because another site was getting higher rankings for the phrase “perfect pitch”? If so, then that’s a whole new level of SEO snake-oilery.

Hmmm… that gives me an idea.

If you have a blog or other personal publishing platform, perhaps you would like to write a post titled Perfect Pitch? Feel free to republish anything from this post, which is also coincidentally titled Perfect Pitch. And feel free to republish the contents of the original discussion on The Session titled, you guessed it: Perfect Pitch.

Update: Thanks for inbound links, everyone. The matter is now being resolved. I have received an apology from Gary Bourcherle who was being more stupid than evil.

I’m Irish (well, half-Irish anyway). Most of the time, that’s something I can be proud of. Lately though, I’m feeling downright ashamed of my country.

ISPs in Ireland are facing legal threats by the recording industry trying to strong-arm them into cutting off internet access at their say-so …’cause, y’know, that worked out so well for New Zealand. Eircom have willingly rolled over. Other ISPs are resisting. A New Zealand-stlye blackout campaign is being organised.

While the recording industry tries to push through a policy of guilt by association, the Irish government is trying to revive an older form of guilt. Would you believe that, in Ireland, it might soon be possible to be found guilty of blasphemy? The supreme court says such a law is unenforceable, common decency says it flies in the face of separation of church and state, but the Irish justice minister says gimme that ol’ time religion.

Ah, Ireland. You’ve got the best music and the nicest people …but outdated business models and outdated superstitions make you the laughing stock of Europe.

What need you, being come to sense,
But fumble in a greasy till
And add the halfpence to the pence
And prayer to shivering prayer, until
You have dried the marrow from the bone;
For men were born to pray and save:
Romantic Ireland’s dead and gone,
It’s with O’Leary in the grave.

This week, when I’m not battling the zombies of the linkrot apocalypse with a squirrel, I’m preparing my presentation for Bamboo Juice. I wasted far too much time this morning watching the ancillary material from the BBC’s The Speaker in the vain hope that it might help my upcoming public speaking engagement.

My talk is going to be a long zoom presentation along the lines of Open Data and The Long Web. I should concentrate on technologies, standards and file formats but I find myself inevitably being drawn in to the issue of copyright and the current ludicrous state of things.

If you feel like getting as riled up as I am, be sure to listen to James Boyle as he speaks at the RSA or is interviewed on CBC. Or you could just cut to the chase and read his book, The Public Domain. If you want to try before you buy, you can read the entire book online in PDF or HTML format—I recommend reading that version with the help of the fantastic Readability bookmarklet.

As if any proof were needed that this is an important, current, relevant issue, Tom reminds me that the future of our culture is under threat again tomorrow. I have duly written to some of my MEPs. Fortunately, I have a most excellent representative:

We’re talking about a gigantic windfall for a few multinational companies, taking millions of pounds from the pockets of consumers and giving it to the record labels. Also, the artistic cost of making songs from the last 50 years public property, thus allowing endless sampling by DJs and other artists, must be taken into consideration.

The UK Greens are committed to a system known as Creative Commons, which offers a flexible range of protections and freedoms for authors and artists. We want to encourage innovation and prevent large corporations from controlling and benefitting from our cultural legacy.

I’ve found that releasing my Flickr pictures under a Creative Commons licence has been very rewarding. My pictures have been used in all sorts of places and most people are kind enough to drop me a line and let me know when they use one of my photos. Say, for example, that the site More Than Living wanted to illustrate the article entitled What is a manbag? with a very fetching picture of Richard.

By far the most prolific example was when one of my pictures was used in Iron Man. That story must have resonated with a lot of people because it spread far and wide; as far as some national newspapers in Spain. After the hubbub died down a bit, I was contacted by Jennifer Cassidy, a graphic design student in Dublin. She’s writing a thesis on Creative Commons licensing and asked if I would answer some questions for her. Amazingly, I actually responded (those who know me and my lackadaisical attitude to e-fail—or anyone who’s ever written to me expecting a reply—will appreciate how unusual that is).

Here are her questions and my answers.

1. How did you discover/first learn about CC licensing?

   I’m not really sure. It might have been when I came across Cory Doctorow’s novel Down And Out In The Magic Kingdom, which was released under a Creative Commons licence. That was published in 2003.

2. What does Creative Commons mean to you?

   Clarity. Creative Commons sets out quite clearly what uses are and aren’t allowed. That dispels a lot of doubt and uncertainty. Under standard copyright, it isn’t nearly as clear-cut as to what usage is and isn’t permitted. Given this uncertainty, I think most people assume that any kind of reuse is breaking copyright law (even in countries where situations like “fair use” are, in fact, permitted).

3. Why were you attracted to this idea of “Some Rights Reserved” as opposed to “All Rights Reserved”?

   “All Rights Reserved” is a very blunt, black and white decree. That simply doesn’t map to most copyright holders’ view of their work. There’s a world of difference between somebody ripping off your work in order to resell it and somebody making a single copy of your work for educational purposes. “Some Rights Reserved” provides a good middle ground. A non-commercial licence, for example, clearly covers the use cases I’ve just outlined. If the only alternative to “All Rights Reserved” were “No Rights Reserved”, that would not satisfy most copyright holders (although some people do indeed relinquish their work into the public domain).

4. Do you describe yourself as part of the free culture movement?

   Absolutely. The irony is that the Free Culture movement is viewed as some kind of modern, radical idea when, in fact, it’s more like a return to the natural state of culture as a shared commons. Traditional Irish music is a good example of this shared culture. The very recent addition of copyright into this mix hasn’t gelled well with the older system. I view the Free Culture movement as a return to a more comfortable human-centred system. In the long term, the twentieth century might just be an aberrant blip on the cultural timeline. Or, if the Free Culture movement fails, the twentieth century might be seen as the time when culture began to wither and die, asphyxiated by the choke-hold of de-facto copyright in perpetuity.

5. Why do you feel the need to use CC licensing on your photography?

   To be honest, my initial reasons were quite selfish. I often received emails from people who wanted to use a photo of mine for some minor use; to illustrate a blog post, for example. Those people had to wait for me to reply and tell them that that would be fine. But I’m terrible at writing back to people (as you know) so I had a constant feeling of guilt that I hadn’t replied to somebody. By releasing my pictures under a Creative Commons attribution licence, I’m making it clear that anybody is free to reuse my work as long as they provide a credit. Mind you, I still get emails from some people asking me if they can have permission to use one of my pictures but now at least I don’t feel guilty for not getting back to them.

6. Do you use it on any other types of creative work?

   Yes, when I speak at conferences—usually on the subject of web design—I publish the presentations under a Creative Commons attribution licence. I now regret that some older works of mine were published under more restrictive licensing. I’ve written two books and I wish that I could distribute the contents of those books more widely but the contracts I signed with the book publishers prevent that (for now).

7. Do you feel that the development of CC internationally is highly important in this day and age, where the internet allows fast easy sharing, reusing remixing of ideas, knowledge and creations?

   Completely. And although I’m personally committed in the area of Free Culture, the success of a Science Commons is potentially the greater achievement. The World Wide Web was created to facilitate shared scientific work. The technology is now in place. Now it’s just a question of how long it takes legal systems to catch up.

8. Are you against Copyright?

   Definitely not. Creative Commons licensing isn’t anti-copyright. Quite the opposite; it clarifies copyright and permitted usage. I am, however, against prohibitively long copyright terms. Copyright extension is inexorably leading to copyright in perpetuity, something that goes completely against the spirit in which the idea of copyright was first formulated.

9. Or do you feel that CC licensing is just a continuation/development of Copyright, that gives you more freedom to choose exactly how your work is used by others and still giving you the protection you as an author actually want?

   You took the words right out of my mouth …which is permitted …as long as you include attribution.

10. Do you yourself use other people’s work licensed under CC? If so, what resources do use, i.e. Flickr etc.?

    I’ve made copious use of Creative Commons licensed Flickr photos in my presentations (which are themselves released under a Creative Commons licence). I’ve also used Creative Commons licensed music—sometimes called podsafe music—in my forays into podcasting.

11. Do you think that society as whole could benefit a great deal if people used CC licensing more often, if they were more willing to share and share alike?

    I do believe that but I don’t have any empirical evidence to support that view so that’s simply personal belief. However, there’s good evidence to suggest that restrictive licensing and prohibitively long copyright terms almost certainly lead to lost opportunity. So more sharing would at least provide a better ecosystem for society to flourish in.

12. Do you not care too much about how people use your work, or do use CC for a bigger more substantial reason, i.e. for a better society and a greater common intelligence?

    I would love to say that I share my work for some greater good but I’d be lying. The truth is that an attribution licence is great for my ego. I can keep track of my pictures and boast about all the different places they show up. I’m such an attention whore.

13. What is your stance on music downloading?

    I think it’s the greatest gift that musicians could ask for. Instead of being beholden to an industry of middlemen, musicians can now provide their music directly to the people who appreciate it.

14. Gerd Leonhard, a leading futurist, states that Copyright is clearly not working. When it comes to the topic of illegal music downloads no can really argue that this statement is wrong. Copyrighting something is essentially useless if it is up-loadable, the internet providing the means. But music licensed under CC is making impressive headway. Im sure you’ve heard of the band NIN? Well they have released their album Ghosts I-IV under CC, allowing several of their songs to be downloaded, for free on their official website. This album, according to amazon.com was the best selling MP3 download album of 2008! This seems to prove that CC can work extremely well. Do you think that CC is the way forward for a healthy future in the music industry?

    I think it’s a great avenue for musicians to explore. Again, the real value is in the nuanced licensing that Creative Commons affords. If a band wants to release their music and allow it to be remixed or even resold, they can specify that. On the other hand, if a band wants to allow their music to be downloaded but not reused, they can specify that too.

15. Do you think respect for each other has a lot to do with the legal reuse etc of creative works? By this I mean should we make it a more two way process, the creation and sharing of creative works, as opposed to people only being out for themselves and to make as much money as they possibly can without thinking about the negative affect on society and a common intelligence.

    I think that there’s a disparity between creators and distributors. Most authors simply want their writing to reach as many people as possible and make a living from it. The publishing industry, on the other hand, is concerned purely with the money-making aspect: wide distribution is seen as a means to an end rather than an end in itself. The same applies in the music industry. The priority for most musicians is to get their music out to as many people as possible. But the music industry is geared around profit. There’s nothing wrong with that—all industry is based on making money. But it’s disingenuous to suggest that restrictive licensing protects the creators of cultural works. More often than not, draconian copyright enforcement protects existing industries that are built upon the works of others. These kind of industries often present a slightly schizophrenic adversarial attitude, treating their own customers as potential criminals. I don’t think that’s a healthy relationship. Suspicion breeds suspicion. Conversely, respect breeds respect.