Unhappy Birthday Suspended

More than 10 years ago, I launched Unhappy Birthday in a fit of copyrighteous exuberance. In the last decade, I have been interviewed on the CBC show WireTap and have received an unrelenting stream of hate mail from random strangers.

With a recently announced settlement suggesting that “Happy Birthday” is on its way into the public domain, it’s not possible for even the highest-protectionist in me to justify the continuation of the campaign in its original form. As a result, I’ve suspended the campaign while I plan my next move. Here’s the full text of the notice I posted on the Unhappy Birthday website:

Unfortunately, a series of recent legal rulings have forced us to suspend our campaign. In 2015, Time Warner’s copyright claim to “Happy Birthday” was declared invalid. In 2016, a settlement was announced that calls for a judge to officially declare that the song is in the public domain.

This is horrible news for the future of music. It is horrible news for anybody who cares that creators, their heirs, etc., are fairly remunerated when their work is performed. What incentive will there be for anybody to pen the next “Happy Birthday” knowing that less than a century after their deaths — their estates and the large multinational companies that buy their estates — might not be able to reap the financial rewards from their hard work and creativity?

We are currently planning a campaign to push for a retroactive extension of copyright law to place “Happy Birthday,” and other works, back into the private domain where they belong! We believe this is a winnable fight. After all, copyright has been retroactively extended before! Stay tuned! In the meantime, we’ll keep this page here for historical purposes.

—“Copyrighteous“ Benjamin Mako Hill (2016-02-11)

Celebrate Aaron Swartz in Seattle (or Atlanta, Chicago, Dallas, NYC, SF)

I’m organizing an event at the University of Washington in Seattle that involves a reading, the screening of a documentary film, and a Q&A about Aaron Swartz. The event coincides with the third anniversary of Aaron’s death and the release of a new book of Swartz’s writing that I contributed to.


The event is free and open the public and details are below:

WHEN: Wednesday, January 13 at 6:30-9:30 p.m.

WHERE: Communications Building (CMU) 120, University of Washington

We invite you to celebrate the life and activism efforts of Aaron Swartz, hosted by UW Communication professor Benjamin Mako Hill. The event is next week and will consist of a short book reading, a screening of a documentary about Aaron’s life, and a Q&A with Mako who knew Aaron well – details are below. No RSVP required; we hope you can join us.

Aaron Swartz was a programming prodigy, entrepreneur, and information activist who contributed to the core Internet protocol RSS and co-founded Reddit, among other groundbreaking work. However, it was his efforts in social justice and political organizing combined with his aggressive approach to promoting increased access to information that entangled him in a two-year legal nightmare that ended with the taking of his own life at the age of 26.

January 11, 2016 marks the third anniversary of his death. Join us two days later for a reading from a new posthumous collection of Swartz’s writing published by New Press, a showing of “The Internet’s Own Boy” (a documentary about his life), and a Q&A with UW Communication professor Benjamin Mako Hill – a former roommate and friend of Swartz and a contributor to and co-editor of the first section of the new book.

If you’re not in Seattle, there are events with similar programs being organized in Atlanta, Chicago, Dallas, New York, and San Francisco.  All of these other events will be on Monday January 11 and registration is required for all of them. I will be speaking at the event in San Francisco.

The Boy Who Could Change the World: The Writings of Aaron Swartz

The New Press has published a new collection of Aaron Swartz’s writing called The Boy Who Could Change the World: The Writings of Aaron Swartz. I worked with Seth Schoen to introduce and help edit the opening section of book that includes Aaron’s writings on free culture, access to information and knowledge, and copyright. Seth and I have put our introduction online under an appropriately free license (CC BY-SA).

aaronsw_book_coverOver the last week, I’ve read the whole book again. I think the book really is a wonderful snapshot of Aaron’s thought and personality. It’s got bits that make me roll my eyes, bits that make me want to shout in support, and bits that continue to challenge me. It all makes me miss Aaron terribly. I strongly recommend the book.

Because the publication is post-humous, it’s meant that folks like me are doing media work for the book. In honor of naming the book their “progressive pick” of the week, Truthout has also published an interview with me about Aaron and the book.

Other folks who introduced and/or edited topical sections in the book are David Auerbach (Computers), David Segal (Politics), Cory Doctorow (Media), James Grimmelmann (Books and Culture), and Astra Taylor (Unschool). The book is introduced by Larry Lessig.

DRM on Streaming Services

For the 2015 International Day Against DRM, I wrote a short essay on DRM for streaming services posted on the Defective by Design website. I’m republishing it here.

Between 2003 and 2009, most music purchased through Apple’s iTunes store was locked using Apple’s FairPlay digital restrictions management (DRM) software, which is designed to prevent users from copying music they purchased. Apple did not seem particularly concerned by the fact that FairPlay was never effective at stopping unauthorized distribution and was easily removed with publicly available tools. After all, FairPlay was effective at preventing most users from playing their purchased music on devices that were not made by Apple.

No user ever requested FairPlay. Apple did not build the system because music buyers complained that CDs purchased from Sony would play on Panasonic players or that discs could be played on an unlimited number of devices (FairPlay allowed five). Like all DRM systems, FairPlay was forced on users by a recording industry paranoid about file sharing and, perhaps more importantly, by technology companies like Apple, who were eager to control the digital infrastructure of music distribution and consumption. In 2007, Apple began charging users 30 percent extra for music files not processed with FairPlay. In 2009, after lawsuits were filed in Europe and the US, and after several years of protests, Apple capitulated to their customers’ complaints and removed DRM from the vast majority of the iTunes music catalog.

Fundamentally, DRM for downloaded music failed because it is what I’ve called an antifeature. Like features, antifeatures are functionality created at enormous cost to technology developers. That said, unlike features which users clamor to pay extra for, users pay to have antifeatures removed. You can think of antifeatures as a technological mob protection racket. Apple charges more for music without DRM and independent music distributors often use “DRM-free” as a primary selling point for their products.

Unfortunately, after being defeated a half-decade ago, DRM for digital music is becoming the norm again through the growth of music streaming services like Pandora and Spotify, which nearly all use DRM. Impressed by the convenience of these services, many people have forgotten the lessons we learned in the fight against FairPlay. Once again, the justification for DRM is both familiar and similarly disingenuous. Although the stated goal is still to prevent unauthorized copying, tools for “stripping” DRM from services continue to be widely available. Of course, the very need for DRM on these services is reduced because users don’t normally store copies of music and because the same music is now available for download without DRM on services like iTunes.

We should remember that, like ten years ago, the real effect of DRM is to allow technology companies to capture value by creating dependence in their customers and by blocking innovation and competition. For example, DRM in streaming services blocks third-party apps from playing music from services, just as FairPlay ensured that iTunes music would only play on Apple devices. DRM in streaming services means that listening to music requires one to use special proprietary clients. For example, even with a premium account, a subscriber cannot listen to music from their catalog using an alternative or modified music player. It means that their television, car, or mobile device manufacturer must cut deals with their service to allow each paying customer to play the catalog they have subscribed to. Although streaming services are able to capture and control value more effectively, this comes at the cost of reduced freedom, choice, and flexibility for users and at higher prices paid by subscribers.

A decade ago, arguments against DRM for downloaded music focused on the claim that users should have control over the music they purchase. Although these arguments may not seem to apply to subscription services, it is worth remembering that DRM is fundamentally a problem because it means that we do not have control of the technology we use to play our music, and because the firms aiming to control us are using DRM to push antifeatures, raise prices, and block innovation. In all of these senses, DRM in streaming services is exactly as bad as FairPlay, and we should continue to demand better.

Aaron Swartz MIT Memorial

On Tuesday, there was a memorial for Aaron Swartz held at the MIT Media Lab. Unfortunately, I am traveling this week and was unable to attend. As I wrote recently, I was close to Aaron. I am also, more obviously, close to MIT and the lab. It was important to me to participate in the memorial and I found a way to give a short “talk” with a video.

I think the lab plans to post a recording of the whole event but I have put the video of my own remarks below (and online in WebM). If you prefer, you can also read the text of the remarks.

Open Brands

In late July, the Awesome Foundations invited me to participate in an interesting conversation about open brands at their conference. Awesome is a young collection of organizations struggling with the idea of if, and how, they want to try to control who gets call themselves Awesome. I was asked to talk about how the free software community approaches the issue.

Guidance from free software is surprisingly unclear. I have watched and participated in struggles over issues of branding in every successful free software project I’ve worked in. Many years ago, Greg Pomerantz and I wrote a draft trademark policy for the Debian distribution over a couple beers. Over the last year, I’ve been working with Debian Project Leader Stefano Zacchiroli and lawyers at the Software Freedom Law Center to help draft a trademark policy for the Debian project.

Through that process, I’ve come up with three principles which I think lead to more clear discussion about whether a free culture or free software should register a trademark and, if they do, how they should think about licensing it. I’ve listed those principles below in order of importance.

1. We want people to use our brands. Conversation about trademarks seem to turn into an exercise in imagining all the horrible ways in which a brand might be misused. This is silly and wrong. It is worth being extremely clear on this point: Our problem is not that people will misuse our brands. Our problem is that not enough people will use them at all. The most important goal of a trademark policy should be to make legitimate use possible and easy.

We want people to make t-shirts with our logos. We want people to write books about our products. We want people to create user groups and hold conferences. We want people to use, talk about, and promote our projects both commercially and non-commercially.

Trademarks will limit the diffusion of our brand and, in that way, will hurt our projects. Sometimes, after carefully considering these drawbacks, we think the trade-off is worth making. And sometimes it is. However, projects are generally overly risk averse and, as a result, almost always err on the side of too much control. I am confident that free software and free culture projects’ desire to control their brands has done more damage than all brand misuse put together.

2. We want our projects to be able to evolve. The creation of a trademark puts legal power to control a brand in the hands of an individual, firm, or a non-profit. Although it might not seem like such a big deal, this power is, fundamentally, the ability to determine what a project is and is not. By doing this, it creates a single point of failure and a new position of authority and, in that process, limits projects’ ability to shift and grow organically over time.

I’ve heard that in US politics, there is no trademark for the terms Republican or Democrat and that you do not need permission to create an organization that claims to be part of either party. And that does not mean that everybody is confused. Through social and organizational structures, it is clear who is in, who is out, and who is on the fringes.

More importantly, this structure allows for new branches and groups outside of the orthodoxy to grow and develop on the margins. Both parties have been around since the nineteenth century, have swapped places on the political spectrum on a large number of issues, and have played host to major internal ideological disagreements. Almost any organization should aspire to such longevity, internal debate, and flexibility.

3. We should not confuse our communities. Although they are often abused, trademarks are fundamentally pro-consumer. The point of legally protected brands is to help consumers from being confused as the source of a product or service. Users might love software from the Debian project, or might hate it, but it’s nice for them to be able to know that they’re getting "Debian Quality" when they download a distribution.

Of course, legally protected trademarks aren’t the only way to ensure this. Domains names, internal policies, and laws against fraud and misrepresentation all serve this purpose as well. The Open Source Initiative applied for a trademark on the term open source and had their application rejected. The lack of a registered trademark has not kept folks from policing use of the term. Folks try to call their stuff "open source" when it is not and are kept in line by a community of folks who know better.

And since lawyers are rarely involved, it is hardly clear that a registered trademark would help in the vast majority of these these situations. It is also the case that most free software/culture organizations lack the money, lawyers, or time, to enforce trademarks in any case. Keeping your communities of users and developers clear on what is, and what isn’t, your product and your project is deeply important. But how we choose to do this is something we should never take for granted.

Unhappy Birthday Hall of Shame


I roll my eyes a little when I think that Unhappy Birthday is the document I have written that has been read by the most people. The page — basically a website encouraging people to rat on their friends for copyright violation for singing Happy Birthday in public — has received millions of page views and has generated tons of its own media (including a rather memorable interview of CBC’s WireTap). At the bottom of the page I am listed, by name and email, as the “copyrighteous spokesman” for the initiative.

And since the page has been online, I have received hate mail about it. Constantly.

Since the email only goes to me, I thought it might be fun to share some of these publicly. All these messages are quoted verbatim but I have not included the senders’ names. Be warned: the language is often salty.

This email is years old now but it is probably still my favorite:

Atrocity and strife run rampant in this world.

Babies are abandoned in dumpsters. Teachers molest students. Impoverished Indonesians make sneakers for pennies while the spoiled jackhole in the 30-second commercial makes millions for sinking a three-pointer and smirking at the camera. Forms of religion are interpreted as to compel people to strap explosives to their chest and board buses full of innocents. Boss Tweeds embezzle and get severance pay while John Q. Workingman gets put out on the street when the corporation goes belly up.

Out of all these indignities and countless others I haven’t the time to mention, why do you make it your personal crusade to assist in the flagrant persecution of family restaurants for partaking in the time-honored tradition of singing “Happy Birthday”? God forbid these foul brigands bend copyright law in order to bring a smile to somebody’s face.

Food for thought…without the accompanying song.

Many others strike a defiant, if less poetic, tone:

Good luck! There are millions of us who refuse to accept the ridiculous “copyright” on Happy Birthday. If Time Warner were an ethical company rather than a greedy megacorp they would do something truly special and release it into the public domain.

There are some things in this world more important than money.

Quite a few people notice that my last name is Hill and suspect that I must be related to the Hill sisters who originally penned the song. I’m not, to my knowledge, although since Time Warner bought the rights, it’s not clear it would matter:

I am writing to just let you know how disappointed I am that a large corporation and others (like the HILL family) are making $2 million plus for a song that was created over 100 years ago with noone knowing who created the lyrics! None of us at our place of employment could believe this and we certainly won’t encourage people to send money to ASCAP. It is a shame that ASCAP license fees aren’t used to pay more to up-and-coming artists who I’m sure need this money alot more than Time Warner.

We all plan to sing Happy Birthday MORE now in public places and if anyone asks if it is copyrighted we will say “of course not”. Maybe this way the song will not die out completely as more and more other “birthday” songs are being sung. It would also be nice if your website cited whose opinion is writing the piece and your obvious conflict of interest.

Or another:

Is it a coincidence that your last name is the same as the last name of the authors of the song “Happy Birthday?” You seem to have a personal monetary motive for your work with the “grassroots project” you call Unhappy Birthday, and if you do not, your concern is misplaced all the same. Whom do you imagine your campaign serves? And do you realize whom it harms?

I do not question the illegality of performing the copyrighted song publicly. And you are correct that most of the public is not even aware that the song is under copyright. I think the harm done to Time Warner and its associates by such public performances is far outweighed by the joy created when the much-loved happy tune is shared.

I urge you to ask yourself why you think the immortal Hill sisters wrote the song in the first place. It was not to put more money Time Warner’s pocket. It was, I would argue, for the sake of the song itself and the happiness it brings when performed (publicly or otherwise). Please consider siding with the children and the artists; let the lawsuits alone.

Some people suspect the site may be satire, but include insults and and attacks just in case it isn’t:

I’m trying to figure out if your Unhappy Birthday site is meant to be in jest. If so Rofl, and congrats on a hilarious site. If you’re actually serious, then fuck you Nazi cunts and your corporate butt buddies. Thank you for your time.

Or these two alternatives (each were separate emails):

If this is a joke then it’s rather funny. However if this website is serious then you’re a fucking idiot. Get a life!!!!

if it is a form of protest, then THANK YOU! if it is not, then screw you all!

One memorable piece of mail was from someone who knew of me from my activities in the free software and free culture communities and had a hard time reconciling my work there with the high protectionist website:

I was quiet surprised to see your name and email address at the bottom of the home page of the site Unhappy Birthday. The site claims that you are their spokesman.

Is this correct? I do not understand… You have all this Open Source/ Free Software background and then this site that defends one of the most controversial copyright issues???

Do you really mean this? Do you want to help Time Warner?

I’ve also received probably half a dozen mails that offer some sort of support! For example, this person liked the website — and even wanted to buy one of our t-shirts — but objected to our logo:

I was going to buy one of your products from your Unhappy Birthday Shop at CafePress but there’s a problem.

I hate emblems that uses human skulls in them.

Being a member of ASCAP I really do support your cause but I can’t buy a product that I would never wear.

And many people are simply confused asking something like this one:

So I saw the unhappy birthday site and I’m just a little confused. Is this a joke or a serious thing?

I usually reply and explain that I have tried to ensure that the site describes the legal situation around Happy Birthday honestly and correctly.

That said, the vast majority of messages I receive are unequivocal. Like this email that I received last week addressed to “you anti-free speech fascists”:

        /  \
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/  \/  \|  |/  \
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Half an hour later, the author followed up with a English version of the same message, set to the tune of happy birthday.

You might think that getting insulted and flipped off by confused people on the Internet might
get me down. It doesn’t! I made Unhappy Birthday because I thought that the fact that something as important to our culture as Happy Birthday could be owned was outrageous. Every piece of hate mail means that somebody else — almost always somebody who isn’t a “copyfighter” or a free culture geek — is now upset about the current state of copyright too.

Sure, Unhappy Birthday makes me a tiny bit sad about people’s ability to recognize satire. But it makes me really happy about people’s ability to get very annoyed at what they think is the outrageous control of our culture through copyright. When more people are as mad as the the people I’ve quoted above, we will be able to change copyright into something less outrageous to all of us.

Redefining “Realistic”

When talking about free culture or free software, many people suggest that they would love to support free models, but that they don’t see how to make it all work. Until they have an alternate model in front of them, they cannot bring themselves to argue for a more ethical alternative. I disagree with this approach. Instead, I say, "this is the world I want to live in and, even though I don’t know exactly how to get to there from here, I’m going to refuse to settle for anything short of this ideal." Most people dismiss such thinking as "impractical" and "unrealistic." I think most people are being unimaginative.

Robot jockeys are one recent illustrative reason, among many, that I feel comfortable taking this position. Some background is necessary for those that are unfamiliar with the example. A decade ago, several Gulf emirates used thousands of young boys from Sudan and South Asia as jockeys for camel racing. Human rights groups campaigned against the practice and suggested that these boys were at sometimes held as slaves and intentionally underfed to keep their weight low. Despite criticism, camel racers resisted moving away from young boys as jockeys. If they moved to heavier adults instead of young boys, they reasoned, the camels would be much slower. Of course, they were right. But they were being unimaginative in the alternatives they were considering.

As the young jockeys became a increasingly unjustifiable public relations disaster for the states that supported it, law-makers in several Gulf states gave in to calls from UNICEF and others and created laws to outlaw the practice. Within three years of UAE passing strict laws against child jockeys, Swiss engineers, funded by racers desperate for an alternative, had created the first robotic camel jockey. Within several years these jockeys were lighter, cheaper, more responsive to the owner, and well on their way to being more effective than any young boy. When forced, by law and by an ethical prerogative, to come up with an alternative to young boys, racers created a solution that was superior, along nearly every axis, to the system they had fought to keep.

Although the costs to society of proprietary software cannot be compared to slavery and abuse, the basic same pattern of solution-seeking can be seen in the example of free software. Early free software advocates suggested that most programmers would likely need to take a paycut. As it turned out, vibrant and successful economic models to support free software have supported a large and growing free software industry. But we have free software business models only because a small group of principled individuals refused to settle for what they knew, came up with creative ethical business models that "just might work," and put their own paychecks on the line to try them out. As open source has shown, some of these creative solutions offered models superior to what we had before. In the world of software development, free software redefined "practical" and "realistic."

One can think of solving human problems as like searching for the highest point in hilly terrain in thick fog. It’s easy to get stuck on the top of the first little hill you walk up (i.e., a local maximum) and then conclude you can never do better. If we refuse to compromise and force ourselves to leave that first little hill, chances are pretty good we’ll find a "higher" peak.

Of course, it is also possible that we will find the global maximum or the best possible solution to a given problem. In those cases, any change will mean a sacrifice. But when dealing with most most social and legal dilemmas, there are enough variables involved that this seems very unlikely. Indeed, most big problems can be thought of as having many interacting dimensions — and only some of these will be ethical concerns. In other words, most social problems are more like the problem of child camel jockeys than they are like trying to transcend the laws of physics.

Business models and laws for the regulation of technology and knowledge are extremely complicated human creations. Do we really think we cannot create ethical systems to compensate cultural creators that are at least as good as what we have now? If we never force ourselves to be "impractical" and "unrealistic", we will never find out.

Piracy and Free Software

This essay is a summary of my presentation at the workshop Inlaws and Outlaws, held on August 19-20, 2010 in Split, Croatia. The workshop brought together advocates of piracy with participants in the free culture and free software movements.

In Why Software Should Not Have Owners, Richard Stallman explains that, if a friend asks you for a piece of software and the license of the software bars you from sharing, you will have to choose between being a bad friend or violating the license of the software. Stallman suggests that users will have to choose between the lesser of two evils and will choose to violate the license. He emphasizes that it’s unfair to ask a user to make such a choice.

Over the past few years, pirate parties have grown across much of the developed world. Of course, piracy remains the primary means of distributing media across most of the rest. Advocates of access to information have gathered and organized under the "pirate" banner, representing the choice of sharing with friends over compliance with license terms.

The free/libre and open source software (FLOSS) and free culture movements seem to have a confused and conflicted reaction to all this. On one hand, major proponents of several pirate parties are FLOSS and free culture stalwarts and several pirate parties have made FLOSS advocacy a component of their political platforms. Pirate Parties’ clear opposition to software patents and DRM resonates with both FLOSS and free culture communities. On the other hand, FLOSS leaders, including Stallman, have warned us about "pirate" anti-copyright policies. Free culture leaders, like Lawrence Lessig, have repeatedly and vociferously denounced piracy, treated even the intimation of an association with piracy as an affront, and systematically distanced themselves and their work from piracy.

Should FLOSS and free culture advocates embrace pirates as comrades in arms or condemn them? Must we choose between being either with the pirates or against them? Our communities seem to have no clearly and consistently articulated consensus.

I believe that, unintuitively, if you take a strong principled position in favor of information freedom and distinguish between principles and tactics, a more nuanced "middle ground" response to piracy is possible. In light of a principled belief that users should be able to share information, we can conclude there is nothing ethically wrong with piracy. Licenses have the power of the law but they are protected by unjust "intellectual property" laws. That said, principles are not the only reason activists choose to do things. Many political stunts are bad ideas not because they are wrong, but because they won’t work and have negative side effects. Tactics matter too. Even though there might not be anything ethically wrong with piracy from the perspective of free software or free culture, it might still be a bad idea. There are at least three such tactical reasons that might motivate free software and culture to not support piracy or participate in pro-piracy movements and politics.

First, a systematic disrespect for copyright undermines respect for all licenses which have been of a huge tactical benefit to free software and a increasingly important factor in the success of free culture. Copyleft licenses like the GPL or CC BY-SA have power only because copyright does. As Stallman has suggested, anti-copyright actions are anti-copyleft. That needn’t be an argument against attempts to limit copyright. Indeed, I think we must limit and reduce copyright. But we must tread carefully. In the current copyright climate, I believe that copyleft offers a net advantage. Why should others respect our licenses if we don’t respect theirs? Looking at the long term, we must weigh the benefits of promoting the systematic violation of proprietary licenses with the benefits of adherence to free software and free culture.

Second, piracy is fundamentally reactionary. Part of its resonance as a political symbol comes from the fact that the piracy represents a way that consumers of media can fight back against a set of companies which have attacked them — with lawsuits, DRM systems, and demonization in propaganda — for sharing in ways that most consumers think are natural and socially positive. But piracy focuses on reaction rather the fundamental importance of sharing that drives it. As a result, most pirates do not support, or are even familiar with, a principled approach to access to information. As a result, many piracy advocates who speak out against DRM on DVDs will be as happy to use NetFlix to stream DRMed movies for $5 a month as they were to download for free. The best rallying cries do not always translate into be the most robust movements.

Third, through its focus on a reaction, a dialog about piracy avoids engagement with the tough questions of what we will replace the current broken copyright system with. A principled position suggests that it is our ethical prerogative to create alternative models. The free software movement has succeeded because it created such a prerogative and then, slowly over time, provided examples of workable alternatives. A principled position on free software did not require that one provide working new systems immediately, but it makes the development of creative, sustainable approaches a priority. Attacking the system without even trying to speak about alternative modes of production is unsustainable. Free software and free culture call for a revolution. Piracy only calls for a riot.

Piracy, in these three senses, can be seen as tactically unwise, without necessarily being unethical. By taking a principled position, one can go build on, and go beyond, RMS’s comment. On free culture and free software’s terms, we can suggest that piracy is not ethically wrong, but that it is an unwise way to try to promote sharing. Without being hypocritical, we can say: "I don’t think piracy is unethical. But I also do not support it."

American Gothic and the Free Culture Imperative

About a year ago, I read American Gothic by Steven Biel and the book has left a surprising lasting impression on me. The book describes the background, history, and life of "American Gothic: America’s most famous painting" by Grant Wood. Even if you don’t recognize the name "American Gothic", you are likely to recognize the picture or the scene. The book is a serious and — as far as I can tell — reasonably comprehensive treatment of the subject that is interesting, insightful at points, and a breeze to read.

Thumbnail of the American Gothic Painting

Of course, the book is not actually about the painting that hangs in the Art Institute of Chicago — although it will certainly teach you more than you probably ever wanted to know about that painting, its subjects, its settings, etc. The book is really the story of how that paining has been received, understood, and used. Nearly half of the book focuses on examples of people who have remixed, reworked, reimagined, and reproduced the painting in myriad forms, formats, settings, and ways. The book contains scores of photographs of celebrities posing in American Gothic style settings, dozens of political cartoons based on the paintings, images of talk shows, magazine covers, Broadway plays, product advertisements, toys, gifts, kitch, and more, done up in recognizeable representations of the basic American Gothic form. There is a very incomplete of references to American Gothic in popular culture at Wikipedia that can give a tiny taste of what is out there.

The last chapter of the book is devoted to these "parodies" and there’s some brief talk of issues around copyright and control of the image. Wood’s sister Nan was the owner of the copyright for much of the second half of the twentieth century and is also the woman in the painting. She famously charged several makers of more lurid take-offs with defamation and successfully blocked a number of remixes. In 1988, Nan transferred ownership to the Visual Artists and Galleries Association (VAGA) which will hold the copyright until 2025. VAGA also claims "rights of publicity" in Nan’s image which will last until 2060. VAGA takes a very expansive view of its copyright claims and argues that it has both veto power and royalty rights to any recognizably similar work. For example, VAGA does not want the American Gothic image used in alcohol advertisements and has successfully had such ads pulled. Biel’s book contains no reference to the amount of money made from licensing the work but one can only conclude that it must be massive. VAGA blocked a plan by Iowa to use the picture on the back of the Iowa state quarter due to licensing disagreements; instead Iowa used a different Wood painting that was clearly in the public domain.

What struck me most about Biel’s book is related to just how deeply ingrained in American culture the American Gothic image has become. The book cites simple surveys that show that almost every American recognizes the painting (although only a small fraction know the painting’s name or who painted it). The thousands of parodies that the book documents are testament to the fact that the painting has become a way of representing something essential about American culture and its values. But in a strange way, the painting’s popularity and incessant reuse has also made it part of the culture that it so effectively captured.

We can think of culture as a set of shared values and references that help us related to each other and to communicate. Just like idioms in language, culture helps us communicate more effectively, certainly, but also lets us communicate messages that would not be communicable otherwise. When Out Magazine, Coors, or any of several dozen others replace the figures in American Gothic with a gay or lesbian couple, they are succinctly sending a message about homosexual relationships and American traditional values that could not be made any other way. In this way, American Gothic — both the painting and Biel’s book — represent a strong argument for free culture.

If American Society has infused American Gothic with so much value, how can it be fair to let one person or organization own it? Are they not owning an essential mode through which a society can relate, experience, and communicate? I can’t help but conclude that it shouldn’t matter if VAGA does not like alcohol, advertisements, homosexuality, or wants to make a some money every time someone makes a cartoon parody. These are trivial concerns next to the importance of our society’s need to communicate about these issues. If doing so requires the use of a shared cultural reference in VAGA’s painting, I find it hard to justify VAGA’s position of control.

We need to be able to reproduce and reimagine American Gothic because it has become part of us. It’s a striking example of the way that art becomes culture and the reason that truly free culture is the only appropriate response. We can’t afford to let our experience of the world and each other — to let ourselves at a very fundamental level — be owned and controlled.

Ending Software Patents

Last week, the Free Software Foundation announced an important new initiative called End Software Patents whose goals are pretty evident from the project’s name. So far, the initiative is backed by the FSF, the Public Patent Foundation, and the Software Freedom Law Center.

There are several organizations who are taking on specific bad patents but ESP is unique in that it is activitely working toward the abolition of software patents in the United States. While the organization is focused on work in the US, it’s deeply important globally — much of the world’s patent law is "exported" from the US.

The FSF is stretching extremely limited resources in backing ESP to help it get off the ground because we believe two things:

  • First, software patents are a fundamental threat to free and open source software (but not just to free and open source software). The FSF must oppose software patents because they provide a fundamental threat to free software’s continued success. That sounds like hyperbole but is unfortunately not.
  • Second, we can win this fight. For a whole set of reasons, the successful abolition of software patents is a goal that, while extremely ambitious, is also within grasp. These issues, of course, are much bigger than free software. Companies spend billions of dollars in litigation over software patents that are not novel and that should not exist. ESP can reach out farther than the FSF alone and build a coalition that can destroy software patents for the good of much more than the free software community.

Please read the new ESP report on the state of software patents written by the ESP Executive Director Ben Klemens to understand why we are optimistic. And please, support ESP financially in this fight. ESP’s continued work is not ensured past the immediate future. Your support will help endow a bright future for the next generation of software developers and users.

Creative Commons and the Freedom Definition

Creative Common Seal for Free Cultural Works

Yesterday witnessed the most important step forward for the Definition of Free Cultural Works (DFCW) since its adoption and endorsement by the Wikimedia Foundation a year ago.

Although I might have wished things otherwise, Creative Commons is not a social movement fighting for essential freedom or the essential freedoms at the core of the DFCW in particular. From the movement’s perspective, CC is more like a law and advocacy firm that works for us — a very sympathetic one. CC writes, hosts, and supports a variety of licenses. Some are free. Some are not. Last year they took steps to explicitly limit the extent of restrictions they are willing to tolerate in their licenses.

Yet, while CC has resisted taking a stand in favor of the Definition of Free Cultural Works, they continue to produce some of the best free licenses, tools, and metadata available and they seem honestly interested in helping users interested in social movements based around these definitions organize more effectively.

In perhaps its most important move to date in this area, Creative Commons announced yesterday that it was placing a seal on each of its licenses that provide the essential freedoms laid out in the Definition of Free Cultural Works. The seal links to the definition over at freedomdefined.org. In Creative Commons’ words:

This seal and approval signals an important delineation between less and more restrictive licenses, one that creators and users of content should be aware of.

A very practical reason users should be aware of these distinctions is that some important projects accept only freely (as defined) licensed or public domain content, in particular Wikipedia and Wikimedia sites, which use the Definition of Free Cultural Works in their licensing guidelines.

The seal is currently on two CC licenses that provide for essential freedom (Attribution and Attribution-ShareAlike) and their public domain dedication. Thanks go to Erik Moeller at the Wikimedia Foundation and everyone at Creative Commons to helped make this happen.

SPARC Innovator

SPARC, the Scholarly Publishing and Academic Resources Coalition — a large alliance of academic and research libraries and other organizations working on open access scholarly publishing issues — just recognized me as a SPARC Innovator.

The award/recognition is given semi-annually to honor contributions to the open access movement. I’m being singled out in part for my work on Overpriced Tags and for other OA work and advocacy. I’m sharing the stage with several friends — all of whom are students active in the Free Culture movement. SPARC seems to see this set of innovator awards as an opportunity to recognize the contributions of the next generation of activists. I’m honored to be counted among them!

Wikimedia and the Free Culture Movement

An essay I wrote for the Wikimedia Foundation fundraising drive was just published on the the foundation’s Why Give blog. The essay, titled Wikimedia and the Free Culture Movement, discusses the movement for free culture, Wikimedia’s central role in it, and the importance of supporting the foundation because, I argue, the immediate success of the free culture movement is intimately tied up in Wikimedia’s efforts.

It is very exciting to see an essay I wrote linked prominently from the top of every page in Wikipedia! It is also exciting to imagine that I might help the Wikimedia foundation at this important time in that organization’s life.

I am giving to two organizations in support of two causes this year: the Wikimedia Foundation in support of free culture and the Free Software Foundation in support of free software. No other two groups are as committed or are doing as much to build a world where knowledge, and the tools we use to use, produce, and communicate it, are and remain free.


Just a couple years ago, music and technology companies would advertise their DRM schemes. While these technologies only served to prevent users of computers and consumer electronics devices from doing things, the media and technologies companies tried to spin it positively. Think of all the wonderful media that the music, film, and publishing industries will be willing to distribute to you at the click of a button, they said. All they asked for in return is the keys to your computer and the legal right to attack and sue you if you try to take control.

As everyone who purchased iTunes music and made the mistake of buying a non-Apple DAP incapable of reading Apple DRMed music knows, DRM is a bad deal for consumers. Users are always better off with an unencumbered media file. In all the excitement over major label content, some consumers didn’t see this immediately.

With time though, the inconvenience of a computer that does the Apple and the RIAA wants over what you want hit home. This, combined with activist projects like the FSF’s Defective By Design, have turned the tide. The DRM label that used to be a badge of honor is now a stigma that smart companies are going out of their way to avoid.

This past weekend, I saw this flier from Calabash Music in the crepe store across the street:

/copyrighteous/images/calabash_drm_table.jpg /copyrighteous/images/calabash_music_flyer.jpg

The store served a general, non-technical audience. DRM-FREE, it turns out, is a good way to sell music. Not just to geeks but to any consumer who has been stymied unfairly by DRM or knows someone who has. That, it turns out, is a whole lot people. Consumers know what DRM is and they know don’t like it.

As consumers learn more about DRM, they want to avoid it. Seeing this, the companies that produce DRM are looking for ways to escape. The Apple/EMI deal seems to be an attempt to protect market share that the use of DRM is threatening. Others, like HBO’s Bob Zitter, are disingenuously attempting to escape the stigma of DRM by simply rebranding the technology.

Of course, DRM suffers from a much more fundemental problem than bad branding. The problem with DRM is that consumers don’t like what it does and are only sometimes willing to suffer through it when not given the choice. Increasingly often, as with in the example of the flier I found, consumers have a choice. Things don’t look good for DRM. For DRM opponents, the self-defeating nature of the technology is our greatest ally.