A little while ago I posted a meditative review of Christopher Kelty’s book Two Bits: The Cultural Significance of Free Software.
Some amusing issues have arisen over who holds copyright to the review; issues that are especially amusing, nay, borderline ironic, since they reflect the very subject matter of Kelty’s book in a kind of recursive way, and recursion itself is a theme of the book too-also.
Which copyright ambiguity reminds me of something similar that happened when I put my latest novella The Pains up on the web under a Creative Commons license and came face to face with the ontological uncertainty about just what constitutes a “book” in the digital age.
Which further reminded me of my fascination with ontological uncertainty about what constitutes a self in general. This “what is a self” topic is a central theme of each of my three books; furthermore, if you consider the three books together as one work (as I do ), with three constituent parts each of which is written by a different “John Sundman” who implicitly or explicitly refutes the authenticity of other two John Sundmans, then the subject of the work as a whole (which I call “Mind over Matter”) is “What constitutes a thing-in-itself in an impermanent universe?”.
So you see? Isn’t it profound? Or as my Irish grandmother Nana would have said, “there now”.
Below the fold: observations on an unwritten book review with future-retroactive copyright power, the “is-ness” of The Pains, and the mutual plausible deniability of John F.X Sundman, John Compton Sundman, John Damien Sundman, with wry commentary on their internecine squabbling by me, one jrs.
On the copyrightability of my review
I wrote that review of Kelty’s book under a commission of sorts from the journal Science as Culture (“SaC”). The book review editor, let’s call him “Bob”, got my name from a friend. Bob wrote to ask me if I would do review the book for the journal, and I said, “sure, why not.” It really wasn’t much of a “commission”, since I was not and am not to be paid anything for writing the review, and there is no signed agreement between me and Science as Culture.
So, anyway, it took me a long while to read the book and write the review, but once I had done it I kind of liked what I had written and thought it would be nice to put it here on Wetmachine, inasmuch as it does discuss Wetmachiney topics & I don’t expect it will get too many readers at the journal, which ain’t exactly The New Yorker if you catch my drift. And furthermore I’m always whorin’ for more readers of the site, and I thought this review might snare the random guppy.
So, after I had sent the review to Bob, kind of as an afterthought, I wrote to him again and asked how he would feel about my putting the review up on Wetmachine. Since we didn’t have a contract or anything, just my email promise to do the review, I figured I could do whatever I wanted with it without Bob’s permission. I was just trying to be courteous. I wrote Bob that I was thinking of assigning the journal a non-exclusive print right. He wrote back that, no, actually Science as Culture‘s parent corporation held copyright to my review, but they wouldn’t mind if I put the review up on my site in any version other than their PDF (in whatever form it gets edited into)–so long as I mentioned Science as Culture when I posted the review on my site.
I thought that was funny. I mean, the final PDF version doesn’t even exist yet, and I haven’t yielded copyright to the draft version, so why would I need Science as Culture’s permission to post something I had written? As a matter of fact, only yesterday (that is, a few weeks after I first put the review on my site) Bob wrote to me again, this time asking for rather extensive revisions to my draft. (My wife said to me: “Remind me again what’s in this for you?”). If I do make those revisions, the final review will be a very distant thing from the review as currently posted. Are they the same thing at all? For the sake of argument, let’s say that Science as Culture holds copyright to the as-yet-unwritten, unedited final version. Does that mean that they hold copyright to this current version that they don’t even want? Does a copyright of a future version travel back through time to cover the version that exists today?
I’m also curious: Does the email between me and Bob amount to an implicit contract between us? Have I in fact yielded copyright? Beats me.
Or as Sartresky might have said to Hutch, “Can consciousness exist without being? I don’t know. Let’s roll, Hutch.”
I probably will do those revisions, by the way. For no pay (for which Harlan Ellision would castigate me, in the unlikely event that he cared about reviews of this kind of book). I’m finding the whole undertaking amusing, even if it is a bit of a time sink.
Slightly more interestingly, What constitutes a book? In particular, what is The Pains?
The foregoing episode brought to mind a post I’ve been meaning to write on Wetmachine for some time now about what constitutes a “work”; in particular, what constitutes a “book”. I’m especially interested in this topic as it pertains my three books, which I put on the web under the Creative Commons “attribution, non commercial, no derivatives” license.
My most recent book, The Pains, is an illustrated novella with 12 very cool pictures, fancy typography and a conscientuous layout. It’s printed on high quality glossy paper. I consider the PDF version of that book, that which was used to prepare the printed version of the book, to be the canonical digital “reference” version, and I don’t give it away. It’s not on the web. After all, it’s my goal to sell paper copies of the book; that’s how I make money. So I’ve put The Pains on the web in HTML format only, with watermarked illustrations. I consider the HTML version to be kind of an approximation of the book, not the book itself.
Well a short while after I had put The Pains up on the web it appeared on a “free book” website in a variety of formats, including PDF. I downloaded the PDF version, and, as you would expect, it looked pretty sucky, especially compared to the “real” version of the book. I thought it a cheap knock-off that gave the wrong impression of what my book was all about.
So I wrote to the guy who ran the free ebook website to thank him for spreading the word about me and my free books, but I also asked him to take down the PDF version, which I considered a “derivative” work and thus not allowed by the Creative Commons license. I didn’t want an “incorrect” PDF version of The Pains out there in cyberspace to confuse all 7 of my readers.
The fellow wrote back that since all versions of all books on his site were produced automatically by his tools suite, he didn’t have a way to exclude the painful PDF. It was all or nothing.
But, then, interestingly, he said that his PDF version of my book was NOT a derivative work, it was just a different format of the work, so it WAS allowed under the license. He said he would take down his PDF (along with all other formats) as a courtesy to me, but he did not acknowledge copyright violation.
Not wanting to be a dick, I wrote back, “nah, go ahead and leave it up.”
But I was intrigued by his opinion about the license, so I asked my lawyer friend Harold Feld, who blogs about issues like this, his opinion as to whether a computer-generated PDF-from-HTML was a derivative work or just a different format of the original work. Harold didn’t have an opinion, but he took a poll of his lawyer friends on a lawyerly mail list. The result? Most, but not all, of the lawyers on this list sided with the guy who had done the conversion, not with me. I thought, “hmmmmmmmm. . .”
A few months later I was at the O’Reilly Etech conference, and it so happened that the Creative Commons guys–including one of their lawyers– had a booth there. So I asked them their opinion about the duelng PDFs. I thought their answer was fascinating. They said that the question of what consituted a derivative work was a murky area that would only be decided, formally, for any given work, in a court of law–if, that is, parties ever felt strongly enough about it to take it to court. Until then the answer is in an undetermined state,like a Schrodinger’s Cat. Licenses are good for making clear who has rights to what in most situations, they said, but there will always be circumstances that are murky. In Two Bits, Kelty makes that same point over and over. Murky issues will arise, he says, and when they do those issues will be decided ad hoc on practical (for example, legal) considerations, not for theoretical or ideological ones.
Meanwhile, if you want to see what The Pains is really supposed to look like, buy a damn copy, woudjz?
And now onto everybody’s favorite topic, me, Al Franken John Sundman
My book Acts of the Apostles was written by John F.X Sundman; Cheap Complex Devices was “edited” by John Compton Sundman, and The Pains was written by John Damien Sundman.
Between my books, especially between Acts and CCD, there is a Hofstadtertarian strange loop, or an Escher loop if you prefer, in which each John Sundman implicitly or explicitly claims the other is a fraud or a fiction.1
People sometimes ask me what’s up with the middle names. Which one is the “real” me? An answer follows below. At other points in time my answer would undoubtably be different, depending on which “I” was responding at the time.
The middle name on my birth certificate is Anthony. This is also my (Catholic) “baptismal” name. My Catholic confirmation name is Reinhold, which I chose when I was 13. That’s the middle name I use now “in real life” (although I’m no longer Catholic).
I put “F.X.” on the cover of “Acts” because I thought it looked cool & had Jesuitical overtones appropriate to the book.
“Compton” was the last name of my childhood best friend Albert, who was murdered in a liquor store holdup twenty years ago. CCD is the kind of book I thought he would have liked, so I chose “Compton” as a kind of homage.
“Damien” is in honor of my late brother Paul. Paul was given that middle name by my parents in honor of Father Damien, the leper-saint of Molokai. Readers of The Pains will see connections. There are various other Sundmans in that book, including the quite real Karl Sundman, the Finnish mathematician and astronomer.
All of my books concern the idea of what constitutes a “self”: what are the boundaries in place and time of a self-aware entity? As a case in point, what constitutes a ‘John Sundman’? In what ways are these various John Sundmans the same thing, and in which ways are they different things?
This question of what constituts a thing, in particular a person, over time is hardly an original area for investigation, but still, I think, a deep and fundamental one.
None of this “John Sundman” stuff is the main point of any of the books. They are each intended to stand alone & tell a story irrespective of their author.
1. From Wikipedia:
Hofstadter’s thesis about consciousness, first expressed in GEB but also present in several of his later books, is that it is an emergent consequence of seething lower-level activity in the brain. In GEB he draws an analogy between the social organization of a colony of ants and the mind seen as a coherent “colony” of neurons. In particular, Hofstadter claims that our sense of having (or being) an “I” comes from the abstract pattern he terms a “strange loop”, which is an abstract cousin of such concrete phenomena as audio and video feedback, and which Hofstadter has defined as “a level-crossing feedback loop”. The prototypical example of this abstract notion is the self-referential structure at the core of Gödel’s incompleteness theorems. Hofstadter’s 2007 book I Am a Strange Loop carries his vision of consciousness considerably further, including the idea that each human “I” is distributed over numerous brains, rather than being limited to precisely one brain.
It’s easier to aplogize than ask permission. Without an exchange of goods, as your wife says….
Annabelle
John,
I’m hereby granting you an honorary degree in the anthropology of law from my University, The Byzantine Academy of Sciences and Critical Mass Media, for your excellent analysis of the mysteries of scholarship today. Seriously, you understand now.
Your experience mirrors that of social science and humanties scholars everywhere, who unlike you, do not seem to have the wherewithal to ask wherefore their copyrights will be expropriated for the profit of a publishing corporation.
For most of us, who are salaried in order to educate your children about these issues, it is still possible to volunteer our time and property freely in order to get our research and ideas out into the world (where world = other three people who do what you do). What now sucks mightily is that the corporate publishing borg that used to be the only route to publication now insists on ever greater and more finely differentiated rights to our ideas… *at the very same time* that it has become insanely, world-historically simple to make those same ideas available (if not findable, but what’s new?) to anyone, anywhere on the planet who knows what to look for. And for this they want to compensate us even less than they did before (i.e. zero dollars), by progressively bleeding our university libraries of every last cent of funding, in order to *subscribe* to the very research said university has already paid us to produce. And this in an era when our states seem incapable of managing the money they promised to our public universities 5,10,15 and 20 years ago. End rant part the first.
You have learned all of this, but the only thing that matters is that you read my book, you thought hard about it, and you wrote a compelling review of it. For me, that is everything, and the only thing I hope for in return for the research I do. As such, I spend a lot of time writing reviews just like yours, except much worse, crankier and more impatient in order to “give something back.” For you… this is not part of the game, and so I’m giving you this honorary degree so that you might build up enough capital amongst academics to take one of ther jobs and live a blissful life secure in the knowledge that you will never be compensated for writing something.
As for the Pains, I will happily buy one copy, but you can’t make me read it. At least not yet…
Christopher,
Thanks for stopping by. I do expect that I’ll complete, or at least make one pass at, the revisions requested by Science as Culture. I’ll let you know what comes of it.
I do hope that you’ll pass the word about Wetmachine to the two or three people you know who might be amused by what we blog about here. There’s a pretty big overlap with the kinds of issues you discuss in your book. For example, googling “wetmachine net neutrality” yields hundreds of responses.
Their are perhaps ten “official” wetmachiners, but only three of us post with any regularity at all. Why does one blog about this stuff? Firstly, I think, because as Harold Feld says, “This is Important”. Secondly, especially in the case of Stearns, because it’s interesting in the abstract.
And in my case, I blog about stuff because I think it’s interesting & important, but I’m always trying to sell books. I mean, that’s my justification, however bogus, for spending the time I do writing for this site. I’m trying to find readers, (mainly geeks, but any-old kind of smart person will do) who like fiction and are willing to send me money in the mail or ether for copies of my books. I really have no idea where that whole world is going, but as somebody who puts most of his stuff under creative commons, I’m not about to give my rights to corporations. Screw that. I give away too much stuff as it is. (Especially compared to Harlan Ellison!)
So, if you do want to buy a copy of The Pains & haven’t done so already, may I suggest purchasing through this site rather than from Amazon? I’ll make more $$, plus, you can have me inscribe it any way you like.
And thank you for bestowing that degree upon me. I shall treasure it always, and perhaps put a certificate on my wall, right next to the Rei do Lixo award (if I ever get around to making an ersatz certificate and putting it up.)
A few thoughts:
First, shame on you for not establishing the terms of your “commission” with SaC up front. After you turn in the work is not the time to bring up what rights you want to grant … Although it sounds pretty weak of “Bob” not to get you to accept a more formal agreement — I suspect that, being too immersed in the twisted world of the academic journal, he simply couldn’t imagine that the transaction could go any other way. This isn’t the first time I’ve heard of the odd practice where the journal owns the final version of the piece (to the extent that the author is only given so many “reprints” to distribute on his own) but that the standard workaround is to send colleagues who request copies a “pre-print” which is basically a PDF of the stage before the final version, at which point all that’s missing are the proper figure numbers and cross-refs. And this is totally legit! What a system! Of course, it’s entirely outdated, overly focused on the final version destined for print (which few will ever have the privilege to see). It’s also based on the erroneous assumption that the main purpose of the journal is to produce a printed artifact, when really the value they provide is to filter, review, and edit the submissions.
Anyway, good on you for going ahead and posting your “pre-print” in its original incarnation, even though I go along with Dear Wife in wondering what’s in it for you in all this.
However, I can’t help but point out the parallel between SaC’s “reproduce the review in any version you like other than the final PDF” and your policy on the canonical PDF of The Pains …
I gave you my opinion on the legal question of the format conversion via email way back at the time, and I’ve shared my thoughts about book-as-content vs. book-as-artifact elsewhere, probably. So two last things:
1. The “all or nothing” policy on the part of the free book conversion guy is a stupidly rigid way of doing things — but hey, his site, his rules. But as a creator I think you’re within your rights to say “hey, anything you do is cool with me, but don’t put up a competing PDF, please.”
2. Interesting input that you got from the CC guys, and I suspect they’re right. It made me wonder if there’s a way to customize or otherwise extend one of the standard CC licenses with special clauses like, “the right to create PDFs from this content is not included in this grant” or whatever — turns out there is, but then you’re not allowed to call it a “Creative Commons license.” I guess they’re just “protecting their brand” … I’ll leave the ironic implications of that unspoken …
Christopher,
I don’t want to sound ungrateful, but my wife asks if you could make the horary degree be from UCLA instead of The Byzantine etc.
Kellska,
Annotations within.
You write:
“First, shame on you for not establishing the terms of your commission with SaC up front. After you turn in the work is not the time to bring up what rights you want to grant … ”
Well, yes, I guess. But it’s not much of a big deal. It’s not as if this review is a magnum opus. What I thought was interesting was the question of *when* the copyright becomes effective.
You write:
“Although it sounds pretty weak of Bob not to get you to accept a more formal agreement I suspect that, being too immersed in the twisted world of the academic journal, he simply couldn’t imagine that the transaction could go any other way.”
I think you’re right. Bob is a perfectly pleasant fellow, I just think he’s stuck in a framework. A framework, moreover, over which he probably has no more control than I do.
You write:
“This isn’t the first time I’ve heard of the odd practice where the journal owns the final version of the piece (to the extent that the author is only given so many reprints to distribute on his own) but that the standard workaround is to send colleagues who request copies a pre-print which is basically a PDF of the stage before the final version, at which point all that’s missing are the proper figure numbers and cross-refs. And this is totally legit! What a system! Of course, it’s entirely outdated, overly focused on the final version destined for print (which few will ever have the privilege to see). It’s also based on the erroneous assumption that the main purpose of the journal is to produce a printed artifact, when really the value they provide is to filter, review, and edit the submissions.”
Exactly. Well said.
You write:
“Anyway, good on you for going ahead and posting your pre-print in its original incarnation, even though I go along with Dear Wife in wondering what’s in it for you in all this.”
Thanks, and what’s in it for me is basically this experience we’re sharing right now. And any notice that comes my way because of it.
You write:
“However, I can’t help but point out the parallel between SaC’s reproduce the review in any version you like other than the final PDF and your policy on the canonical PDF of The Pains …”
D’OH! Didn’t see that coming! I feel like I’ve been checkmated by Pearl
http://tinyurl.com/6mpnzv
You write:
“I gave you my opinion on the legal question of the format conversion via email way back at the time, and I’ve shared my thoughts about book-as-content vs. book-as-artifact elsewhere, probably.”
I’m sure you did, and I’m sure your observations were spot-on. That doesn’t mean I remember what you said, of course.
You write:
“The all or nothing policy on the part of the free book conversion guy is a stupidly rigid way of doing things but hey, his site, his rules. But as a creator I think you’re within your rights to say hey, anything you do is cool with me, but don’t put up a competing PDF, please.”
Precisely.
You write:
“Interesting input that you got from the CC guys, and I suspect they’re right. It made me wonder if there’s a way to customize or otherwise extend one of the standard CC licenses with special clauses like, the right to create PDFs from this content is not included in this grant or whatever turns out there is, but then you’re not allowed to call it a Creative Commons license. I guess they’re just protecting their brand … I’ll leave the ironic implications of that unspoken …”
Delicious ironies abound.
The Byzantine Academy of Science and Critial Mass Meddia is infinitely better than UCLA, and more financially solvent. As its first official tenured faculty member, you have tremendous power. Salary? Well, if you can get a competing offer from someone, then I will see what we can do about that… this is the way we do things in academia…
As for who is responsible for specifying the terms of a contract, it’s up to both parties. But unless SaC makes you sign something there is no legal way in all of creation that they can just magically own your copyright. By allowing them to print the thing, you are implicitly giving them the right to do so, and probably giving up them a strong right to *that version.* However, in academia it is standard practice, as it is everywhere, to make you sign a contract at some point. It’s true that they should do this up front, but as kellska points out, most academics are pretty sloppy about this, precisely because it almost never represents payment of any kind, and therefore feels like an annoying form of record-keeping to most academics. If only it were.
And I’m with the CC folks (guys and girls), because they are right in a legal sense… a derivative work is not something clearly defined in the statutes or in the license… and this is deliberate, because it leaves a certain amount of flexibility to have the kinds of ad hoc negotiations you had with the pdf-er of your book. Better that than an iron-clad, inflexible set of rules that changes decades more slowly than the technology does…
John,
You write:
“What I thought was interesting was the question of *when* the copyright becomes effective.”
I don’t think it’s a temporal issue. The crux is not when they take over copyright, but what precisely you are ceding the rights to, in this case, the final version of the article as embodied in the official PDF. I suspect that if you were to take the published version and evolve it further, you would have the right to do so, but I further suspect that in that ecosystem (as in so many others), the norm is to move on to the next thing, once the current thing has been released into the world.
My feelings about content vs. artifact are informed by my years of working in the dead tree industry, i.e, a vocation concerned both with finding and developing high-quality content (for some definition of “quality”) and with turning said content into artifacts. (Also supposedly with monetizing that content-artifact package, but I was never very good at that and, apparently, neither was the industry as a whole.) But — the thing I drew from that experience that is pertinent to this discussion is that the traditional author-publisher contract takes its shape from the fact that the author explicitly retains the copyright and all the usual rights that it brings. Any power the author has to say, “you can publish my book in this format but not that, in this country but not that, etc. etc.” comes from traditional copyright and decades of convention that has risen up around such practices. But when you surrender some of those rights (for example, by adopting a CC license), things get decidedly more murky. Somewhere in that general direction be dragons. Or possibly geckos. Or, at the very least, scripts that consume your bits and excrete other bits.
Back “on topic,” just today I discovered that the Canadian government is soliciting opinions from its citizens about copyright reform. How cool is that?
http://copyright.econsultat…