Copyright and other unwelcome issues

[10 November 2011]

One of the unwelcome side effects of recent trends in copyright (I mean the gradual shift, viagra sale over the last fifty years, hemophilia towards more and more protection for commercial interests and less and less protection of the public benefit) is that while it used to be easy to make one’s own work readily available for reuse by others, it now requires more careful planning. It used to be, for example, that if you didn’t care to claim or protect copyright in something you wrote, all you had to do was nothing: if you didn’t claim copyright, and the work was public, then it was in the public domain.

[“Hmm. How sure of you are that?” asked my evil twin Enrique, with a suspicious look. “Well, kind of sort of sure, I think.” “Better add a disclaimer, then, don’t you think?” “OK, right you are.”]

At least, that’s how I understand it, at a first approximation. (I am not a lawyer and have never much wanted to be, though a friend of mine who did go to law school once told me I’d enjoy the mysteries and mystique of tax law. So no reader should take anything I write as providing guidance about the law of the U.S. or any other country.) If you want good information about copyright, go find something by Pamela Samuelson.

[“OK, that’ll do, I guess. Is Pamela Samuelson really a good source?” “The best. Thank heavens she’s writing that column for Communications of the ACM again.”]

Nowadays, of course, in the U.S. this is no longer true: from the moment you write anything down, you own copyright in it, whether you want it or not, unless you do something to avoid it.

Of course, many people ignore this and behave as if the old legal regime were still in place. I’ve had representatives of U.S. universities say “Oh, feel free to reuse that stylesheet we wrote” — as if, because it carried no copyright statement, it were available for reuse by anyone interested. On the contrary! Since the stylesheet didn’t carry any licensing information or dedication to the public domain, it was certainly copyright either by the individual who wrote it or by the institution for which it was written. And since it didn’t carry any copyright information, it was impossible to know with any confidence who actually did (or does) own the copyright, and whom to contact for permission.

[“And these people who were trying to give you permission to reuse that stylesheet, were they legally empowered to enter into binding agreements on behalf of their institutions?” Enrique asked. “Dunno. I doubt it.” “So, tell me, do you have a barge pole handy?” “A barge pole? No, why?” “Because I want to warn you not to touch that code with a barge pole, that’s why. And if you don’t have a barge pole, it just feels kind of pointless. Do you have an eleven-foot pole, maybe?” “Oh, hush.”]

End result: I politely ignored (at least, I hope my silence was polite) their invitation to reuse that code, and I wrote new code from scratch.

[“Oh, come on,” Enrique hissed. “You know perfectly well you wouldn’t have reused that code anyway! It was full of xsl:for-each elements.” (New readers may need to be informed that I seem to have an issue with xsl:for-each elements; I’m sure it’s a perfectly fine construct and there’s nothing wrong with it. I only know that when I have a stylesheet with a bug and discover that it has for-each constructs, rewriting the for-each as an apply-templates always seems to make the bug disappear. Go figure.) “Well, yeah. But even if I had loved the code, I would not have felt able to reuse it.”]

Of course, there are plenty of open-source and Creative Commons licenses to choose from, if you want to ensure that work you do can be re-used.

But who, in a collaborative project, is “you”?

If you write code or prose as an individual, outside the course and scope of your normal employment duties, then it’s straightforward to assert copyright in your own name. But if you are collaborating with others in a project, and you want to apply an appropriate license, in whose name should copyright be claimed? If only one person works on a given item (a program or a document) it’s easy to say that person should assert copyright and grant the license. But if more than one person works on it?

Some people incline to claim copyright in the name of the project, which feels plausible at some level: project is a name we sometimes give to the intentional collaboration of individuals to achieve some goal, and work done in furtherance of that goal can plausibly said to be done for “the project”.

But can a project which is not a legal entity actually be the owner of a copyright? If there’s a legal entity involved, it’s possible in principle to figure out, in case of disputes, who speaks for the entity and who makes decisions. But if there’s no legal entity?

Can copyright usefully be claimed by a research project, in the name of the research project?

[“Well, wouldn’t a research project be legally a form of partnership?” asked Enrique. “A partnership doesn’t have to be incorporated to be a legal person, right?” “Maybe,” I equivocated. “But remember, I am not a lawyer. And a fortiori you, as a figment of my imagination, are also not a lawyer.” “Oh, go soak your head. Whom are you calling a figment … ?”]

I notice that W3C, for example, which is not a legal entity, claims copyright in the name of W3C, but immediately after adds, in parentheses, the names of the three host institutions of W3C, which are legal entities.

It would be nice, wouldn’t it, if intellectual property rights served to promote the useful arts and sciences, instead of being an unproductive drain on the time and effort of creative people and a barrier to normal intellectual work? Oh, well, maybe someday.

Day of the dead 2011

7 November 2011

Last week’s celebration of the Day of the Dead (aka All Souls’ Day, visit 2 November) was a little more thoughtful for me than it is in some years. Partly this was because John McCarthy had just died, and partly because this year seems to have taken an unusually high toll in people whose work I have had occasion to value.

News of McCarthy’s death came through when I was on the phone with John Cowan and my brother Roger Sperberg. We paused for a few moments, and then we spent half an hour thinking about technical topics, which seemed like a good way to mark the occasion. (For example: if the original plan was for Lisp programs to be written not in S-expressions but in an Algol-like syntax called M-expressions, is that a sign that McCarthy was less far-sighted than he might have been? How could he not have seen the importance of the idea that Lisp data and Lisp programs should use the same primitive data structures? Perhaps he had feet of clay, so to speak? Or on the contrary should we infer, from the fact that the plan for M-expressions was abandoned and that Lisp became what it became, that McCarthy was astute enough to recognize great ideas when he saw them, and nimble enough to change his plans to capture them? On the whole, I guess I lean toward the latter view.)

This year, Father Roberto Busa also died. Many people (including me) regard him as the founder of the field of digital humanities, because of his work, beginning in 1948, on a machine-readable text of the work of Thomas Aquinas. The Index Thomisticus was completed in 1978, several IT revolutions later. Busa, too, was astute enough to adjust his plans in mid-project: his initial plans involved clever use of punched cards and sorters, and it was only after the project had been going for some years that it began to use computers instead of unit-record equipment. I met Busa only briefly, once as a young man at my first job in humanities computing, and once years later when I chaired the committee which voted to award him what became the Busa Award for contributions to the application of information technology to humanistic scholarship. But he made a strong impression on me with his sweetness of temper and his intelligence. He made an even stronger impression on me indirectly: Antonio Zampolli worked with Busa as a student. And without Antonio, I think my life would have had a rather different shape.

Oh, well. Nobody gets out of here alive, anyway.