Andrew Orlowski

Artist Shepard Fairey is facing a Grand Jury probe for falsifying evidence in a copyright case. Fairey was suing Associated Press over the use of an copyright image Fairey had used as the basis for a popular Obama election poster.

To the dismay of the Boing Boing crowd, Fairey turned out not to be a "copyfighter", but a freetard fraud. Fairey lied about the photograph he’d used, falsely submitting a similar AP photo from the same event, rather than the identical one that truly provided the basis for his derivative works. He maintained the fiction for eight months, before admitting the deception in October.

AP has asked for damages to go to its emergency relief fund.

Other artists have noted Fairey’s tendency to plunder the history of radical and revolutionary art for personal profit – he has a clothing line – without adding anything new along the way; Fairey simply scans or traces the original, usually badly.

"Simply reproducing the work of others robs you of your imagination and form-making abilities. You’re not developing the muscularity you need to invent your own ideas," designer Milton Glaser wrote in Print magazine.

"It largely ransacks leftist history and imagery while the artist laughs all the way to the bank," wrote artist Mark Vallen in a withering essay entitled Obey Plagiarist Shepard Fairey, that you can read here. " It is machine art that any second-rate art student could produce."

But it’s also a case of the biter bit – Fairey uses intellectual property legislation aggressively.

In 2008 year Fairey set his legal team upon a graphic designer Baxter Orr who created a derivative work on Fairey’s ‘Obey’ poster design (originally ‘Andre the Giant Has a Posse’), itself a derivative work of course.

There are many harmless and very entertaining pages on the internet devoted to speculative history, some of which are devoted to Moses’ Ark of the Covenant. It was apparently some kind of electrical apparatus. Possibly involving fusion. It performed magic. It transformed the destiny of people who used it wisely.

Now I doubt if you’ve read anything or seen anything in the last few days about Apple’s next computer that is very much more rational. Only most of this output has been written not by UFOlogists, but by grown-ups – professionals in fact, who are paid not to be stupid. It’s the most interesting thing about any new Apple device: the childish and idiotic inflated expectations that precede it. But you’ll have noticed that even by the standards of idiocy set by Big Media, the professionals have excelled themselves this time with iTablet speculation.

The reason is that they don’t just want one to play with, fanbois or gadget fans. This time, they fully expect Apple to save their jobs. That’s quite a big difference. (The New York Times let slip that Apple had a new platform for publishers last year.) So the result has been awful. Like holding up a highly-reflective idiot in front of an idiot mirror – the result has been infinite recursion of stupidity, as far as the eye can see.

I was again reminded of childish and idiotic expectations of technology yesterday, reading a lecture by the G-Whiz-driving editor of The Guardian newspaper, Alan Rusbridger.

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An answer to the music industry’s woes slipped into the IFPI Annual Report last week, but its significance went unnoticed. Before I get to it, though, here’s a poser.

“We screw the struggling artist, and pay the suit,” Nick Carr mused recently. Carr was examining a contradiction: information has never been less free, it’s never had as much as much value attached to it. Once you add up your Sky Sub, mobile broadband bill, and the many other information services, we pay a fortune for information, most of which is entertainment. He continued:

“It’s a strange world we live in. We begrudge the folks who actually create the stuff we enjoy reading, listening to, and watching a few pennies for their labour, and yet at the very same time we casually throw hundreds of hard-earned bucks at the saps who run the stupid networks through which the stuff is delivered,” he wrote.

elsewhere and you’ll find people saying they make a point of principle not to pay for entertainment digitally, because entertainment companies are wicked. The principle is that two wrongs make a right, which makes withholding the payment justified. Maybe even morally superior to paying.

But as Nick points out, we all actually pay a fortune to suits – they’re just different suits. They’re suits at large telcos, advertising middlemen (eg, BT) and service companies. The answer seems simple.

If you’re a copyright business, then to appease the copyright militants, you must pretend that you’re not. You must say you’re in plumbing, or infrastructure. Or anything, actually. For the world’s biggest record company, Vivendi, this will be a case of returning to one’s roots. Universal’s parent Vivendi began life as Paris’s first monopoly water supplier – it only changed its name from CGE and spun off the water and sewage businesses in 2000. And look, we can mention sewage and The X Factor in the same sentence without berating the obvious.

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The Lords this week discussed new compensation for copyright holders this week – including a voluntary ‘Hail Mary fine’ payable by file sharers, instead of suspension – but nobody noticed.

It was late on Wednesday night, and the Lords were six hours into their fourth session this month discussing the Digital Economy bill. Lord Lucas moved Amendment 156, giving an infringer a choice:

[It] requires the payment of an additional fee by the subscriber for the maintenance of unrestricted internet access, which is to be remitted to a licensing body established under the Copyright, Designs and Patents Act 1988.

Lucas said he anticipated a more progressive licensing regime, similar to the performance right on compositions, which is non-exclusive:

"No one stops a person performing, but if they do perform, they have to pay a fee… Given the fact that someone is having a technical obligation imposed on them, it seems that they might choose to pay a fee to such an agency, which would go to relevant copyright holders. Terminating, suspending or limiting someone’s internet access just does someone harm."

Read more at The Register…

Pelted from all sides by amendments, the Digital Economy Bill continues to plough its way through Parliament. This week, the Lords lined up to have their say, but since there are so many (300) Amendments, they’ll be at it again on Monday.

Of course, out of the ten subject areas, the one labelled ‘online copyright infringement’ has attracted the most attention from their Lordships. Lord Mandelson made a number of modifications acknowledging these concerns this week – including some substantial changes to the processes. It’s the procedure rather than the principle that is vexing the Lords.

Nobody – not even those who support the Bill – is entirely happy with the procedures. Yet there is no great grassroots outpouring of opposition. While 500,000 people may have paid 79p in one week to register a protest vote for the Christmas Number One single, fewer than 500 have signed up to the Open Rights Group’s “Message to Mandelson” campaign – and some of those are supportive. We spotted one ‘Go Mandy’ from a major record label staffer and another urging his Lordship to bash the ‘freetards’.

Read more at The Register

Opening Comments for the In The City P2P Panel, Manchester, on Sunday 18 October:

Although Rik [Falkvinge]’s in front of us in flesh and blood, he wouldn’t exist – the Pirate Party wouldn’t exist – without enforcement policies being the primary goal of the music business. The programme bills this as “two sides of a debate”, but as a journalist I get incredibly suspicious when I hear there are just two sides, because usually there are two, three or four more we don’t hear about. Let’s put this into context.

The Pirate Party exists because of a political vacuum. Politicians don’t do politics anymore. Compare them to Lenin and Thatcher, for example, who had ambitious programmes of what society should look like, that cut across social, economic and personal ideas of their time. If you look at what a politician does now, it’s focus groups.

So into this political vacuum you’ll have lots of fringe, single issue groups. The Pirate Party is the first and most successful.

Now Rik specifically evoked some Enlightenment values in his presentation – [individual rights against the church and state]. But I see this as a very conservative and reactionary movement in two quite specific ways. First it’s a techno-utopian movement that’s all about replacing politics. It presents itself as a political party, but it isn’t in politics at all. Politics is about people sitting down and working something out, a consensus.

It’s also reactionary in another way.

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A while ago I joked that perhaps the RIAA had secretly recruited Charlie Nesson to be its court opponent. Everyone from Ray Beckerman at the “Recording Industry vs The People” blog to Nesson’s old pals at the Berkman Centre at Harvard had advised him to knock it off – or at least not pursue a crackpot defence. But when it comes to the technology utopians, all jokes come true eventually.

Nesson has achieved something I thought was completely impossible in 2009, and that’s to allow the US recording industry’s lobby group to paint itself in a sympathetic light. No longer must the RIAA explain why their biggest members are not using technology to make money for the people they represent. The Boston case allowed the four major labels to justify an enforcement policy against opponents who appeared compulsively dishonest, irrational, paranoid, and with an abnormal sense of entitlement.

Nice work, Charlie.

Nesson failed in his avowed mission “to put the record industry on trial”. He failed to show why disproportionate statutory damages are harmful, which could have had a lasting constitutional effect. He failed to paint the defendent as sympathetic, or “one of us”. He failed to demonstrate why copyright holders make lousy cops. He even had a Judge noted for her antipathy to the big record labels. In short, he ceded the moral high ground completely and utterly to the plaintiffs, the four major record labels. The labels’ five year campaign against end users is finally at a close, but Nesson’s performance leaves it looking (undeservedly) quite fragrant.

Read more at The Register

The Creative Commons initiative fulfilled a major ambition last week – but it’s taken only days for the dream to turn to crap.

Google granted the wish by integrating the ability to search images based on rights licences into Google Image Search. Yahoo! Image Search has had a separate image search facility for years, but Google integrated the feature into its main index.

The idea of making the licences machine-readable was a long-standing desire of the project, and lauded as a clever one. It was intended to automate the business of negotiating permissions for using material, so machine would instead negotiate with machine, in a kind of cybernetic utopia. Alas, it hasn’t quite worked out.

As Daryl Lang at professional photography website PDN writes, the search engine is now choked with copyright images that have been incorrectly labelled with Creative Commons licences. These include world-famous images by photographers including Bert Stern and Steve McCurry. As a result, the search feature is all but useless.

Since there’s no guarantee that the licence really allows you to use the photo as claimed, then the publisher (amateur or professional) must still perform the due diligence they had to anyway. So it’s safer (and quicker) not to use it at all.

What’s gone wrong, as Lang explains, is the old engineering principle of GIGO, or Garbage In, Garbage Out:

“The system relies on Internet users to properly identify the status of the images they publish, Unfortunately, many don’t… Many Flickr users still don’t understand the concept of a Creative Commons licence, or don’t care.

“It’s time consuming to put a different label on every image [in their collection], and there are no checks in place [our emphasis] to hold users accountable for unauthorized copying or incorrect licensing labels.”

So Google won’t take responsibility for the accuracy of the licensing metadata, and Creative Commons, as a small private internet quango, says it can’t afford to. (The disclaimer on the website is simple: go find yourself a lawyer.)

Just as we predicted, in fact: the filtering is less than perfect, and it’s a lip-service to creators. Now, why did it have to fail?

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It’s actually not so different from the potted history of every media company that rises to popularity on the back of a new medium – take radio, for example – then sells out at the top of the market. Only in the case of Web 2.0, companies go from “pre-revenue” to “post-revenue” without any revenue in between. That’s where you need a bigger idiot.

It’s cute to read arguments today that depend so much on historical inevitability – or else rely on natural, or physical “laws” – laws which turn out to be dodgy metaphors that only exist in the author’s head. When we look at history, we learn something quite different, which is that all media companies reach a settlement with creators, eventually. The two are mutually symbiotic: copyright is a social agreement created in response to technological innovation, and technology needs copyright material, or else it’s bunch of empty pipes, or at best a low-value telephone network.

Occasionally, history throws up odd wrinkles, such as the absence of a performance rights deal on sound recordings on US radio, but these are very rare exceptions. In the absence of a viable business, the hope of New Media startups has been to find a wrinkle they can drive a bus (or a business) through. The original Napster hoped to change the law, and when that failed, it tried to reach a settlement with the record industry.

Tens of thousands of students have signed up to pay for a legal P2P music program in US universities, set to start later this year in experimental form. It’s Choruss, the incubator hatched by Jim Griffin – a long-time advocate of licensing P2P sharing on networks.

Choruss won’t ultimately be in the retail or service business, Griffin told us in Washington DC today – but it may provide an “umbrella” for managed service companies such as Playlouder MSP, the technology partner for the suspended Virgin Unlimited music service. “We’re not in the business of distribution,” he said. Griffin was also on a panel at the biennial World Copyright Summit, organised by CISAC, the global organisation for collective rights management societies.

Griffin says this year’s phase of Choruss is designed to experiment with pricing. Different colleges will get different pricing schemes.

“The plan is to use next school year to run tests and experiments,” he said. Only after the scheme has been running will an assessment be possible – but Griffin told Summit delegates that, “We’ve had students tell us it’s worth $20 a month – to share what they want to share.”

The fact that such large numbers have volunteered to pay for a P2P service defies the conventional music industry wisdom that the only way to compete with the pirates is with free offerings. It also shows how much Choruss has evolved since it first broke the surface last April, when talk was of opting students in automatically, in return for a “coventant not to sue”.

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