Copyright is Opt-OUT, not Opt-IN
Earlier today, Joss Winn posted a link to Twitter about a “great educational resource:”
And he’s right– the site is great, providing a newer, more accurate translation of Adorno’s Negative Dialectics along with comprehensive notes. I had, in fact, visited that site within the last few months for completely different reasons.
But I was curious about the “not a toss about licenses” bit in Winn’s post. I wasn’t sure if he meant that the site didn’t mention licenses or that the author expressly didn’t care about licenses. So I asked if the author addressed the question of licenses and copyright to which I received this response from Winn:
My question was an attempt to get at an important distinction. I’m completely behind an author who doesn’t care about copyright and wants to share his work with the world. But not giving a shit isn’t enough… one must explicitly express that they don’t give a shit otherwise copyright, which is a presumptive, automatic right, applies and, as a result, use is limited to only the meager possibilities covered by Fair Use guidelines. By not explicitly letting us know that he doesn’t give a shit, the author is letting wrongheaded, often corrupt politicians give a shit for them. Which means while the author might not give a shit, many will not break the law to use the resource in a way the author most likely fully intends the work be used.
In this particular case, the situation is actually even more muddled because the author explicitly contradicts himself on this very issue. On the home page for the translation he writes that we should:
“Feel free to quote, cite or otherwise use this translation; just be sure to cite this website as a source.”
Based on other material on the site, I get a sense that the author intends to expand upon the rights that are already automatically available to us in the form of Fair Use, but this wording doesn’t actually support that intention. Further on the same page he uses language that similarly undermines his own (presumed) point about the nature of rights to this work:
“For those of you who are wondering if a print version is available: this text can only exist on the Internet, as a freeware or copyleft translation. The reason is that the University of Minnesota has the sole rights to publish the English-language translation of Negative Dialectics…”
“Can” exist or does exist as a freeware or copyleft translation? I assume he means that the University of Minnesota owns the translation rights associated with Adorno’s original (already a ridiculous aspect of copyright law), not just the rights to “the” translation mentioned later in the paragraph. Assuming that, things are still muddled because the author hasn’t explicitly opted out of conventional copyright protections, only referenced the idea of copyleft, which encompasses a wide variety of alternative licensing schemes and philosophical positions about reproducing and sharing, and which wouldn’t, in any case, prevent the text from existing as a print copyleft translation, etc.
It gets worse, though, when you delve into the text, because each section of the translation has a traditional copyright statement affixed that renders the previous discussion moot and places the text right back into the restrictive protection of standard copyright law:
“The text of this translation is copyright © 2001 Dennis Redmond”
This might seem like nit-picking, but a resource like this– which clearly seems to be aimed at, among other audiences, educators and students– is of dramatically less value if the copyright status isn’t clear. Most educators and students work within institutions that aren’t comfortable with interpreting intellectual property rights and they will err on the side of caution, limiting use of this valuable material.
Don’t get me wrong here: even if the intent of the sharing in this case is simply to share work and retain all the conventional rights of copyright, it’s still a great thing to have done and a worthwhile resource for learning. But if the intent is as I suspect it to be– to share the translation using some form of alternative licensing that requires attribution and possibly that the text be shared in turn– well, that’s even better, and I would recommend a Creative Commons license (“BY-SA” if you want to require that the user “share alike” or “BY-NC-SA” if the user likewise wants to limit to non-commercial use, etc… the Creative Commons License Chooser provides a form making it easy to select the options one wants). If the author doesn’t give a shit about copyright– as in he would like to waive all rights to the text, then I would recommend the Creative Commons Public Domain Dedication.
Whatever the case, standard copyright is a protection that one must explicitly opt-out of, a system that quite literally doesn’t care what we think.
Themocracy
That’s a great post
My own feeling is that if a teacher or student wanted to use his work, they would get a pretty good sense from his site that he would not make a legal challenge, but rather, be keen help the person wherever he could.
Licenses are useful when applied but just because they are not applied, doesn’t mean the work is not useful and should not be used. It just requires an evaluation of risk. In this particular case, that guy is no risk to anyone.
I understand you, I really do.
But I, like many, also work for an institution and know that none of that material is available to our faculty in the way the author intends because the institution (like so many) isn’t interested in making determinations in confused, muddled, or ambiguous cases, and will simply assume the worst case scenario.
And if you go renegade, as I and others have often done, you risk troubles of different kinds. Most pertinently, if Springer-Verlag, or whoever, do own the right to English translations of the Adorno text, it wouldn’t be up to the author whether or not they decided something was infringing use. And they, as the copyright owner, have significant resources to pursue action. And, sadly, such actions are taken.
But my real point here was to illustrate the problems inherent in just assuming that the problem of copyright solves itself when we want it to… or when we don’t care about it and (try) to say so. Given that there are so many simple alternatives to actually DO something about it. In the case of this material it would have taken less time to CC license the whole thing than it took to write about potential freedoms and then affix copyright to the material itself.