I'm sorry to inform you that as of now, your only excuse for continuing such arguments is tantamount to "but I don't want to pay that much for it."
Look at it this way: you're paying it to PBS Home Video. Isn't PBS a worthy cause to support? Oh, and some of it does in fact go to various creditors of the now-paper-only Blackside corporation, this is true. I myself see exactly zero from any of this, just to head off the inevitable repeat rants of 'sellout.'
Think of the following, as well: the Copyright office reaffirmed a prior fair use provision, which was that educational institutions are (and have always been) allowed to make copies of works they have access to in order to preserve their access for educational and archival purposes. In other words, 'it will vanish from history' was, erm, crying wolf.
On a less 'annoyed and bitter' note (sorry) educators may be pleased to note that the newly-packaged series (it's been reissued on VHS as well) is available with teacher's supplemental materials.
I hope you find this news as encouraging as I do. If you do, please please please write PBS and thank them specifically for rebroadcasting Eyes I; this will increase the chances that they decide to undertake the same process for Eyes on the Prize II.
This is the distinction I think is often lost, and is the reason I find the 'lamentations' by copyfighters over the actions taken against AllOfMP3 so bloody annoying - I've had people email me and tell me I'm being a copyright militant bastard over Eyes On The Prize when, for example, I'm frothing about the fact that there are lowlifes busy selling DVDs to which they've burned the crappy files that Downhill Battle posted to the internet. Selling. That's the key word. Yes, I apologize for bringing my personal baggage to this, but HA! it was my post originally.
Now again, if AllOfMP3 was paying artists for their work - then I'm wrong. But nowhere have I ever seen any evidence that they were; all I have seen is stories which indicate that the company was, if anything, gaming the law to make minimal if any payments to a Russian organization which in turn wasn't paying anything to anybody outside the country - so the artists themselves weren't making a thin dime. In other words, those lamenting AllOfMP3's getting smacked around are lamenting their inability to pay a vendor who isn't paying the artists anything.
This is a personal reaction to a story I don't follow closely. If I'm wrong about the circumstances, then so be it. But that's what produced my reaction.
Since this is an official PBS release, there may eventually be a (new) PBS Home Video release available. I don't know either way - I don't know if the rights were cleared for home video distribution or just for broadcast. If I get more information, I'll certainly post it here.
Reading that article has forced me to re-examine my position. Note: re-examine means just that. It does not mean 'reach different conclusions' which is what many folks seem to mean when they use the term. However, I have thought about it more, from a viewpoint several months along. The basic question addressed: should I (I won't presume, here, to dictate to anyone else's conscience) take action to pressure Apple Computer to give up the use of DRM in Mac OS X, up to and including the use of a boycott of its products, in response to their use of the Trusted Computing hardware gained through use of Intel-based motherboards to 'tie' Mac OS X to their machines?
There are several questions I need to answer, here. First of all, do I believe that DRM is monolithically a bad thing? In other words, is the very existence of the technology inherently wrong? Let me be clear: no, I do not. There are a couple of reasons for this. First of all, I have difficulty passing value-laden judgements on a technology absent a use context. Second, I have (and may in future) work in environments involving the necessary protection of information for reasons other than 'intellectual property' or 'profit' concerns - and DRM technologies in many cases are functionally indistinguishable from technology used to secure information from casual or even determined access. I don't claim they are alwas successful, but they can be a valuable tool.
Do I believe that the use of DRM technologies to restrict the spread of 'content' information for profit maximization is wrong? This is more difficult. I believe it is technically (so far) infeasible - and that given the way information that is disseminated for profit must change hands, there is no amount of DRM tech that can 'protect' it by the nature of the transaction. Hence, its use for this is pointless and restrictive. I do not believe it should be illegal to try to do so - but I do believe the market should be allowed to punish those who do. I do believe it should most definitely not be illegal to attack the technical problem of breaking a DRM scheme. The DMCA is, in my opinion, a dangerous attempt to 'fix' a market - that is, to interfere with its function in favor of one group of participants - through blatant legislative capture, and should be abolished. While the actual act of illegally distributing content is a different matter entirely, the mere technical act of attacking or examining the protection systems is pure science, and should be treated as such.
Moving back to the matter at hand. In Apple's case, I consider the 'strong protest' response raised against Apple in this case to be counterproductive to the anti-DRM movement. This is why I raise objections to it, from a pragmatic point of view - not because, as LB suggests, I feel that Steve Jobs' use of whatever means to protect his baby is fine by me. In the first case, the real issue is not that the TPM is being addressed from inside OS X at all; the issue is that the TPM hardware is available inside the Macintosh in the first place. Complaining because Apple is utilizing the hardware to protect OS X from being copied (and not, I would point out, to encrypt even content purchased from iTunes, or user files, or anything like that) completely misses the point. If you are really worried about TPM invading the Macintosh, then protest the inclusion of the hardware. Otherwise, it just comes across as petulant whining, because it looks like you're trying to have your cake (faster cool Intel goodies) and eat it too (bitch about TPM/DRM issues that aren't really an issue yet but are only even possible because of those goodies making the Mac faster/more scalable etc).
The argument "we must protest it because once it is there it will be used" simply seems to make the above point for me. The problem, though, is that Apple really is just a convenient target. I'm not saying the protesters shouldn't complain about Apple all they want - that's their prerogative. But Apple didn't really chase Intel hardware because of TPM. They chased it for other, more pressing money-making reasons. Honestly, if their first priority was making sure their OS couldn't be run on cheap commodity hardware, they could have simply kept it on PowerPC - or moved to some other architecture, or anted up and invested money in the PPC roadmap, or shoved their marketing engine over to something entirely other than performance. Nope, they went Intel for performance and heat - and with Intel came a risk to their business model and something they could use to mitigate that risk - TPM.
So really, if you're concerned that "If TPM is there, it will get used for evil eventually" then the real culprit is Intel for designing the thing into the chipset and pushing to have it included in the reference platform, which is not Apple's fault. They just used it to try to minimize their corporate OS risk, without even trying to stuff it down your throat via iTunes - and don't believe the content providers wouldn't have loved for them to do that.
But no. We're not going to redouble our efforts to complain about the actual designers and pushers of the TPM hardware - we're going to complain about Apple. Because it's a big, fat, media-blitzed target, ripe for an iPod-and-OS X on Intel-fuelled backlash.
And because Cory-the-writer-with-flair said so.
That's why I think it's a silly issue. Because the 'protest everything at maximum intensity' approach leads to burnout response both in terms of allocating actual effectiveness, as well in terms of the response of those who you are trying to mobilize. Plus, if you stop buying computers which use TPM modules, what computers are you going to buy? It's not that the code to address it is the problem. It's that the chips are on the boards.
If you're that worried about the Mac, run Linux on it, for pete's sake. Apple isn't trying to prevent you from doing that. They don't even care if you run Windows on it. They just don't want you running their OS anywhere else. Not even their OS; their GUI and their PPC emulator. Which are not open source software, were not written 'by the community', and do not 'have to be free' - unless you're a software pirate.
I don't think you're telling the whole story here. I'm the Tony Sanfilippo quoted in the AP story and who also appears in Google Print's FAQ here.I have fully embraced Google Print for publishers, even wrote a study delivered at BEA and AAUP about using the Long Tail and Google Print to find new markets for scholarship, but this is entirely different.
Google Print for Libraries has two pretty major flaws. One being giving a digital copy of all of our works to the participating libraries where they will then most likely be used in e-course reserves without any compensation to ether author or publisher. University Libraries have an awful track record at compensating for e-course reserves and post our content frequently without any restrictions or security.
The second being Google will be profiting (through GoogleAds) on this content again without compensating the authors or publishers. Fair use should exclude commercial use. Even Creative Commons licenses (which I grant to my flikr account) gives you that option.
If we expect the production of good scholarship to be a viable, it has to be paid for somehow. I work hard to keep the price of our books as low as possible because I understand accessibility is directly related to cost, but until someone is willing to completely sponsor our work, we must protect our ability to break even.
Okay. I'm not sure I agree with all that, but okay. At the bottom of the post, Cory Doctorow retorts:
1. "University Libraries have an awful track record at compensating for e-course reserves and post our content frequently without any restrictions or security."Universities already have a broad exemption to copyright under fair use doctrine. That they compensate authors at ALL for photocopying and web-posting excerpts from copyrighted represents a good-faith compromise, not a failure. And as to "restrictions" -- damned right universities don't use DRM!
2. "The second being Google will be profiting (through GoogleAds) on this content again without compensating the authors or publishers.
Fair use should exclude commercial use. Even Creative Commons licenses (which I grant to my flikr account) gives you that option."
Fair use does NOT require noncommercial use! 2Live Crew's Pretty Woman knockoff was a top-ten commercially released single that was still a fair use of the Johnny Cash Roy Orbison lick.
CC licenses may allow restriction of commercial use, but CC licenses are subordinate to fair use itself (as is stated in the second clause of every CC license). There's nothing in a CC license or the publication of a book that prevents commercial re-use per se (I'm sure that Tony's press's commercial books are themselves filled with fair use quotations).
3. "If we expect the production of good scholarship to be a viable, it has to be paid for somehow."
For starters, Google Print won't take a penny away from a publisher: what publishers are complaining about is that Google's figured out a way to make money from books and isn't proposing to cut them in for a share, but they're treating this new money that Google's making as though it comes out of their end.
As to supporting scholarship, how about our state-supported University system, then? Oh, and the new sales generated by Google Print? Both of these go a long way to supporting scholarship without requiring that universities be denied access to searachble indices of their own bought-and-paid-for collections.
4. "Google Print for Libraries has two pretty major flaws. One being giving a digital copy of all of our works to the participating libraries where they will then most likely be used in e-course reserves without any compensation to ether author or publisher."
If you support scholarship, how can you reject giving UNIVERSITY LIBRARIES searchable digital indices to their own collections because some of them might use them in a way that undermines your bottom line?
My problem with Mr. Doctorow's knee-jerk rejection of Mr. Sanfilippo's arguments boils down to one point. Mr. Sanfilippo nowhere said that he objected to universities posting *excerpts* under fair use. He said that Universities have a terrible track record at compensating authors for posting and photocopying their *content*. Which can be (and probably should be, although I won't put words in his mouth) read as 'content in its entirety.' The use of the phrase 'e-course reserves' indicates that 'excerpts' is not accurate. 'Reserves' are typically used for students to read materials in their entirety at the library. Excerpts are sometimes reserved, but typically full articles or book chapters are reserved. At that point, calling it a 'fair use excerpt' is stretching credibility; you're not 'citing' the work, and you're not offering it in support of your own scholarship. You're utilizing the work as a whole.
Mr. Doctorow's point would then have to be interpreted as 'the use of a work in a school library for the purpose of learning is fair use.' A logical conclusion of that would be that school libraries would not pay for books. This is demonstrably not true. The entire purpose of the reserve system in libraries is to conserve scarce resources - namely, the works on reserve - so that the students who need them the most (those to whom they have been assigned as reading) can be guaranteed that they will be available in the library and that no other patron has signed them out. This is because the library cannot simply make as many copies of the work as it would need to give them to every student to whom they have been assigned. Ergo, fair use, even as the libraries interpret it, does not mean that the library can duplicate these works as required. In fact, it usually doesn't even mean that the library can duplicate these works for use within the library, because I distinctly recall having to wait for others in the reserve room to finish with the reading before I could sign it out from the desk!
The problem with Google Print making complete copies of those works available to libraries is not that they are making 'indices' available. Mr. Sanfilippo may have a point; if, in fact, there are libraries that do have a bad track record at compensating publishers for reserve readings posted electronically, then making Google Print archives available to those libraries will, in fact, be offering them goods that they do not have presently (assuming that the archives include scans of books that they don't currently have in their collection, I am not sure of that). While deciding whether that is a violation is not my place, I think that would, in fact, be a concern.
"As to supporting scholarship, how about our state-supported University system, then?" Um, what about it? That's not the only source of scholarship. Authors are also scholars, Mr. Doctorow. At least, some of them are. Not all of them are privileged enough to be associated with a university with a large private endowment, or with a university supported by the state - and by the way, those latter are certainly not able to support independent research nearly as well as the better-funded in the former category. So I'm not entirely sure what the heck that throwaway comment has to do with anything.
In addition to clearing rights, this money can/will be used to edit the documentary to remove any segments for which rights cannot be re-cleared, so as to permit its display.
Note that this is explicitly not the clearing of rights for a home video release of Eyes, at least separate from PBS. However, I do not have information on whether or not PBS will be able to offer media of the series as broadcast once the airing has occurred. As I get more information, I'll post it.
Many thanks to the Ford Foundation for their support over the years for Henry's work! Thanks as well to all private donors for their support.
As far as I am aware (although I haven't read the grant), no money from this grant will be paid to Blackside or its owners as compensation for re-airing the series (none was requested). Although some money may be used for editing the series to comply with licensing, that will be on a 'cost' basis.
As people will probably immediately ask about home video licensing - well, I don't know. I should point out that at least half a million dollars of this total, if not substantially more, will be going just to clear the rights for educational use and airing rights on PBS. Clearing rights for perpetual home use (to sell a home video release) would likely be more. So, to the several folks that have written emails ranging from questioning to scathing about why the series isn't available, there's your yardstick. As Henry's family has been trying to raise funds to license the series for a private release, you now have some indication of the amount of money we're talking about. Please bear in mind, again, that Blackside the company does not exist other than as a legal entity; furthermore, it has no income, or assets it can sell other than the rights to its works which it still holds. That's not a solution, really, unless those rights can be 'mortgaged' for the funds to release the series - which has not been possible to date.
I received back this email:
Thanks for the reply... Wow strange that ebay allows these to be sold. I'd really like this on dvd, but don't want to risk being sued or anything like that!-Andrew
I explained eBay's position on the whole matter as experienced from the copyright holder's end, and thanked 'Andrew' again for checking with me.
So then today my auto eBay search turns up an eBay auction for a DVD release of the '2 hour condensed' Eyes on the Prize Documentary...with the following in the middle of the posting:
This is an import DVD. The disc comes with a beautiful full color high-res label, and comes in a single-dvd box, with a gorgeous cover. **English audio, no subtitles, menus all in English..**I will not be bullied and threatened on eBay any longer, so, if you are bidding, it is YOUR responibility to either know what these dvds are, or to ASK ME, please! One further note, I will only give a refund if you are polite, as I am.. and don't leave negative feedback before asking! That's it! That's all it takes Thanks..
If you would like a FAST RESPONSE to your question, please use these links: email or AOL Instant Message (or the icons just below)
Hm.
Check email...yep.
From: Chambers <home@achambers.com> To: 'J.B. Zimmerman' <jbz@------.---> Subject: RE: eyes dvd ok to buy? Date: Mon, 16 May 2005 13:28:29 -0400 ---------------------------------------- Thanks for the reply... Wow strange that ebay allows these to be sold. I'd really like this on dvd, but don't want to risk being sued or anything like that! -AndrewSo looking lower down on the eBay auction listing:
Seller's payment instructions Mail payments to: Andrew Chambers 5872 Grand Canyon Dr Orlando, FL 32810 I can take Paypal at paypal@36studios.com Credit card Paypal payments at paypalcc@36studios.com Paypal is preferred, however I will also accept check (hold to clear) or money order. *Please note check/MO may significantly delay your item, if you need the item quickly use Paypal!
Hello, Andrew. Nice to meet you. Or 'peace_-man' or whatever your name is on eBay. How many copies of my Uncle's movie have you churned out so far? There was, in fact, a PBS condensed version of Eyes available on home video. But according to Forman Entertainment and PBS, it was only released on VHS videocassette. No DVD pressing of Eyes was ever made. So sure, I suppose, it's possible you bought this from someone else...but given your query to me roughly six hours before this item was listed in which you intimated you did not own the item in question, that seems...unlikely.
Thanks for your identification and home address. See, eBay typically won't give those to Blackside's lawyers without a lot of arm-twisting. But said lawyers love when people give them to us for free.
And yes, I said 'lawyers.' I have had a couple responses to this thread vilifying me for daring to bring lawyers in to 'protect' my family's 'property' for varying reasons - because it 'should be free,' because it 'is in the public domain,' etc. To all those who object in such a way: If you have objections to going after people selling patent counterfeits of the product and taking the dollars thus gained for themselves, I'd love to hear a justification. Come on. Please. I'm waiting. You've fired 'em off before, let's have 'em in the comments this time.
Sure, this could be a mistake. Andrew could have bought this from someone else on eBay and now be trying to get rid of it. But really...an 'import' DVD? From PBS? With no mention of such a product on their store? Hm.
Let's see. You make a big deal of the indexing and teacher tie-ins. How about this:
The new Web site works in conjunction with PBS VIDEOindex VHS titles. Each tape includes a small on-screen clock that allows every segment of a program to be identified through a minute-and-second time code. The online index makes it possible to search for video clips by keyword, date range, academic area, grade level and other criteria. The Web site's database also includes program, chapter and segment descriptions, providing the video selections with even more context.
(snip)
The PBS VIDEOindex collection boasts an extensive repertoire of renowned PBS programs, exploring history from the early-Egyptians to the events and people in the news today; scientific concepts and theories in astronomy, biology and brain theory; and the breadth of the arts in music, dance, the visual arts and architecture. These films have earned numerous Emmy, duPont-Columbia and Peabody Awards, as well as popular and critical acclaim. The videos include such documentary series as Africans in America, American Experience, The Civil War, Eyes on the Prize, Frontline and Liberty! The American Revolution, Jazz, I'll Make Me a World, American Visions, Stephen Hawking's Universe, Triumph of Life, and The Secret Life of the Brain - works by renowned historical interpreters such as Ken Burns, Henry Hampton and David Grubin. Video segments can be used throughout an institution's curriculum as interdisciplinary resources in history, geography, sociology, science, health, literature, language arts, economics, government and the humanities.
Well, apparently yep, there was a way to get an indexed and timecoded 2-hr version of the program from PBS. That was through this program, now reachable here: http://www.pbs.org/teachersource. However, you should note that this was for VHS titles. Furthermore, the licensing for works from this program is explicitly spelled out here and gee, they sure don't make any reference to copying this content and reselling it. They mention explicitly that this licensed content is handled differently from PBS Home Video product, as well.
Orlando, Florida, hm...
There have been all manner of comments about this online already, some negative, some positive. I'm not totally sure what to think; I've gone and read up on BzzNet, and thought about it a tad, and I guess my position comes down to the following.
First of all, let me state that I am not a passionate Creative Commons supporter. Not because I disagree with it, but because I'm not informed enough and submerged enough in that particular part of the issue to be passionate about it. I do like the idea, and will cheerfully say so. I don't, typically, engage in arguments about it, because I don't have the information base to back said arguments up.
Having said that, I don't like this move. I do like CC in general, quite a bit actually. I think it's a Good Thing, even if I can't support that thought through very many iterations of argument. However, the Bzz move is a problem for me. That's because when I do argue with people over things like copyright, I argue with them in three general areas - one, the technical legalities; two, our respective motivated opinions; and three, the philosophical or moral considerations. Sometimes two or more of these are in alignment. Sometimes they are not. However, I have no trouble arguing with anyone on any side of the debate, so long as - and here's the kicker - our positions in each of these are clear.
Arguing this sort of stuff productively with anyone - from Copyfighter to RIAA rep - is possible only if everyone comes to the table with their motivations and affiliations freely available. In some cases we can't help it; if we're public-facing employees of the RIAA, or if we are known bloggers with on-record opinions, it's easy. If we meet at parties, however, one of the first parts of a discussion - and a critical one - is determining everyone at the table's positions and starting points. If we agree, why argue? Why not discuss? If we're going to discuss or argue copyrights, then I want to know what everyone involved has at stake - is it philosophical? Is it a deeply-held conviction? Is it because their family fortune is based on a fifty-year-old set of IP rights? These are things that, for tactical reasons within the argument (if not politeness at a party) you'd like to know. Why are these other people talking about this with you, and from what point of view?
Suddenly, BzzNet. Now, if I'm at an event, and someone brings up CC, I am in trouble. Because I have read up on this whole debacle, and I know what's going on. Now I have to explicitly wonder about their motivations. Sure, BzzNet can tell me all it wants about how people 'only sign up for things they believe in' - but is there any means of enforcement there? Hell no, not that I can see. And remember, this is the advertising industry. Faking sincerity is their stock in trade. Maybe not BzzNet's, but the industry as a whole, absolutely. So the only thing I have to go on to trust that the BzzAgents in question aren't just shilling for the rewards is the assurance of a BzzNet corporate spokeperson that in fact they're only 'collecting rewards for things they would do anyway.'
That's not comforting.
In sum, the effect of the BzzNet campaign for me is to throw a monkey wrench into what was, until now, a relatively clean intellectual fight - 'clean' in the sense that the motives of everyone involved, whatever you thought of their provenance, were relatively easy to discern, and no-one thought much about hiding. Suddenly, there are mercenaries in the ranks - and I don't know who they are. If I might be permitted my own 'reach' metaphor, you have a group of soldiers fighting for a cause - they know each other, and are committed. New recruits begin to arrive, and they greet them warmly, trusting them as comrades, knowing that unless one believed, one wouldn't join up. Then suddenly, one of the recruits admits that in fact things aren't going all that well at home, and he joined because somebody gave him a big cash bonus - he doesn't even really know much about the ideological cause.
If you were a soldier in that unit, those new recruits would feel a lot less secure at your back.
Update: Mr. Lessig has asked for feedback on CC's involvement with BzzNet, let's see what he gets.
I have never claimed that God was unknown to the civil rights fighters. Quite the contrary. I know many of them to be and to have been people of deep faith in both their causes and in various religious ideas. Nor have I ever claimed that was a bad thing. In fact, this post had nothing whatsoever to do with civil rights fighters - and I have never claimed, throughout this debacle, to have an understanding of their point of view or their situation, because I wasn't alive then. The only point of view I claim to have any special understanding of is my Uncle's, because he and I had many long conversations about it. That's it.
In this particular post, my annoyance and derision over the citations of 'GOD' in the email from the person on the other end of the message chain involve the fact that our interaction has nothing whatsoever to do with God. It has to do with the entirely secular laws of the United States of America. Whatever rights that person feels 'GOD' gave them are irrelevant to me in this case, and therefore, explaining them to me not only doesn't move me but loses them massive amounts of credibility for attempting to convince me through completely specious argument.
Finally, to the best of my ability (and eBay's) to determine, the United States Code says they are wrong. This is the entirety of the matter under debate, given that my sending the VERO notice to eBay was based entirely on that point- that I was identifying the item they were attempting to sell as an illegal copy of Eyes on the Prize. Whatever my disagreements with Downhill Battle and the rest of the Copyfighter movement, I will state this unequivocally: none of them have ever claimed, or even hinted, that anyone else should have the right to transfer copies of these films for commercial gain. Period. We are all in complete agreement about that, as far as I can tell. What we do disagree about is the ability and 'rights' of my Uncle's estate to restrict the use and transfer of the films and contained content.
I do have some strong opinions about religion in specific cases. Some of them are strongly positive. Some of them are strongly negative. One thing I am firm on, however, is the following: anyone should be free to worship whatever they so choose - so long as their worship, belief and practices does not in any way impinge on my choice of what to worship or in fact whether to worship at all. That is was the United States Constitution's separation of church and state is, in my mind, for: to provide a framework for governance and management of affairs between men and women that explicitly does not rely on the differing beliefs of those men and women on how the universe 'is' - rather, one that relies on a secular set of codes and rules in which we can all point to and affirm our participation.
So, on that note, nope, I don't care what they think GOD gave them - the U.S. code doesn't give them the right to sell that DVD, and hence, as far as I'm concerned, they're not selling it. End of story. What that position has to do with the faith or lack thereof of the civil rights activists, I have no idea - unless you are trying to make a value statement about people (i.e. me) based on whether or not they believe in God. Are you? Or worse, are you trying to imply that I was making a value statement about people based on whether or not they believe in God? If so, pppptptptptptppttbt, 'cuz you're wrong. I was making an evaluative statement on the persuasive skills demonstrated by the person on the other end of that email - i.e., poor.
Who are they? Dunno (yet). Where are they? Well, according to their order form:
Order by Mail: Order Form
Printable Order Form for Check or Money Order
EYES ON THE PRIZE THE COMPLETE COLLECTION.
ALL 14 EPISODES ON 7 DVDS $149 95
Domestic Shipping $5 00
Total $
_______________________________________________________
Name
______________________________________________________
Street
_______________________________________________________
City, State, & Zip
(______)______-___________
Phone
_______/______/______
Date
________________________________________________
Email Address (optional)
Send check or money order made payable to:
Primary Source
Mail your order to:
#### -------- Avenue Suite #251 Berkeley, Ca 94704
May have to take a wander over there when I'm in the neighborhood and see what we got.
And believe you me, if I find out that there happens to be a DVD manufacturing op set up using master files from the Eyes on the Screen effort...well...I don't think it'd be possible for me to be more irritated about that. But I guess anything is possible. Especially since the proponents of that effort keep telling me that that effort is only good for everyone. My protests that earnest viewers will be taken in by operations like this were continually met with blithe assertions that the 'free' availability of the files would make that problem moot, and the pressure on my family to re-release a 'legal' version of the films would mitigate it as well. Newsflash: you released the files. They're out there. People are still willing willing to pay ridiculous amounts of money for counterfeit crap-quality DVDs on eBay; I know, because I have to keep spending time filling out VERO notices for the stupid auctions. Why? Because most of the world isn't able to download a BitTorrent file and burn a DVD to use in their living room; the copyfight protesters in this case aren't speaking for the general public. They're speaking for a technological and cultural elite, and their proposed solution doesn't protect the access rights of the 'general public' - it simply makes it easier for unscrupulous but tech-savvy folks to fleece the same.
Oh, and the reason we haven't brought out a legal version, before anyone asks me with righteous indignation, is because despite said publicity, no-one has stepped up to the plate to invest the money required for such a licensing and mastering effort. My family doesn't have the resources, and more than one potential investor has backed away from the project. No, it wasn't because of monies we demanded, either, to answer several fairly rude assumptions made in emails. No investors have been forthcoming since the recent publicity; all of these predate the publicity push.
"Prime Media," eh? Hello, boys. "Chad Arrington." Right, suuure. You also sell a $49.95 guide to getting a new social security number, eh? Why am I not surprised. Caveat emptor, I suppose. Oh, hello; Mr. Arrington appears to be familiar with complaints. Well, then, time to write the USPS Postal Inspectors a little letter, I suppose. Ha; he's even cited as precedent when dealing with postal service lowlifes. Lovely.
From: m--- b--- <b---@direcway.com> To: jbz Subject: eyes on the prize Date: Sun, 20 Mar 2005 16:14:02 -0600 (17:14 EST) I see you were able to get this auction kicked off how is it that you have a copyright to this dvd set? Ebay gives me the right to contact you as i will be keeping a copy of this email to forward to ebay(including your response) Can you prove to me that you own the rights to this dvd set? please get back with me as i feel i have a right to relist this item as i purchased it here on ebay and feel i have a legal GOD given right to resell it! regards m--- b---
Well, m---, as I've said in my private email to you, I'm so happy for you that you feel you have a 'legal GOD given right to resell it!'. However, fortunately for us in this fine country, the two aren't the same, and my actions aren't concerned with GOD but the United States Code.
I'm not going to bother explaining to you here why I can and did do this - I did that in the email. Rather, I'm going to rant a bit. Here, apparently, we have someone who was taken in by a counterfeiter and sold an illegal copy of the series (I'll give them the benefit of the doubt, and assume they're telling me the truth - I have no reason to assume they're lying and that they made the copy themselves). I'm sorry this happened. However, caveat emptor most definitely applies. M---, you're not protected from your own culpability. You bought an illegal copy of the movies. You're now trying to resell that illegal copy, and you seem taken aback that you're being prevented from doing so.
Well, terribly sorry old bean, but that's how it works. Let's imagine, just for a second, that you had in fact bought a copy of 'The Incredibles' a few months before it was ever released on DVD. Then let's say you decided you were done with it, and wanted to get rid of it. Would you have then tried to resell it on eBay 30 days before the store release of 'The Incredibles' on DVD? I doubt it, but if you did, you're dumber than I can possibly picture you as being. What, then, would you say to Pixar's lawyers when they showed up at your door? That because you'd spent money on the films, that you had a GOD GIVEN RIGHT to resell it? I'd love to see what they'd say to you, and the amounts of legal pain they'd debate about inflicting.
Well, guess what - this is exactly the same situation. Only I'm not Pixar, and I don't have Pixar's lawyers, and you've never heard of me, and there is no published release date for EoTP on DVD, yet. But it's the same thing. Just because you hadn't known it wasn't out on DVD yet when you bid doesn't mean that somehow you get a free pass and a chance to get your money back by passing it on to the next sucker.
Oh, and by the way, for those of us in the Reality-based community - invoking GOD as a reason we should let you win the argument really doesn't go over well. Especially when doing so in the same sentence as demonstrating your complete lack of clue of the situation. Ever occur to you not all of us consider this unknown GOD person to have any sway on the situation, much less be anything more than a figment of your imagination and reason to treat you with gentle respect and the pity due the deluded? I'm not saying that's the case here, necessarily, but until you know whether it is or not, just remember - GOD holds very little sway within the United States Code as of yet. Some of us intend to ensure it stays that way.
From: james <dellsbest@direcway.com> To: jbz Subject: Re: Question for item #6376759263 - Eyes on the Prize DVD Black History Full Menu all 14 EP Date: Thu, 17 Mar 2005 12:37:25 -0600 (13:37 EST) A friend of mine purchased this item from YOU! He asked me to sell it for him. As to who made it or where it came from no one cares. Good day!
Now, I understand this answer. I really do. I also want 'james' to understand that it's perfectly understandable that I would like to find him and have a conversation with his testes or other sensitive body parts with a pair of pliers and a blowtorch. Because just for his/her information, I care where it came from.
When the 'copyfight activists' say that 'putting it up for download doesn't hurt anyone' I ask them to please consider my blood pressure when I think about how much easier they made it for this motherless bastard to acquire bids on eBay of up to $200 for this item.
And before any of them start holier-than-thou-ing about how 'if it was freely downloadable he wouldn't get bids' remember: your side already had it digitized and made it available on p2p. We couldn't stop it or retract it, which was the point. So it is freely available. He's still managing to be a parasite.
Last month, Downhill Battle tried to get Americans to download copies of the landmark civil rights documentary Eyes on the Prize. Eyes is not available any longer, because it is prohibtively expensive to clear the copyright to all their clips. Various entities -- the production company, Martin Luther King, Jr's estate -- shut them down with legal threats.
I note that 'the production company' is mentioned. 'The estate of the filmmaker' who made Eyes is not - presumably because 'production company' sounds better and more appropriately 'Evil.' When said production company consists entirely of the late filmmaker's two sisters, well, that would tend to muck with your rebellious fight-the-man image, now, wouldn't it.
His latest entry on the matter on BoingBoing offers yet more support for the protest (well and good) as well as - since Blackside's lawyers have shut down the availablity of illegal copies of the film through DHB's site - an alternate source. Again, while I really don't agree with him, and in fact this makes me somewhat annoyed, I understand the tactics at play here - he's advocating the use of p2p for copyfight, and this makes perfect sense. If you think the law is broken, and the law pursues you for undertaking an activity (well, pursues DHB, not you), then sure, go offshore where they can't get you as easily.
What really causes me to lose respect, though, is that he still won't acknowledge the existence of a debate - either through comments on BoingBoing, or through links to other sites respected in the field, such as Copyfight. It makes him less of a philosophical activist, in my book, and more of a hardline dogmatic tactical fighter. One of the things that I tend to look towards with respect in a champion for a cause is one who is certain enough about their cause's underpinnings that they are willing to entertain debate on the notion - one who believes that debate in public fora on their cause and their movement can only help, not harm.
As I have tried to make plain, I have (at the very least) mixed feeling about copyright. I think some parts of it are in dire need of fixing, and some parts of it need to be taken out behind the barn. I also think this particular action is wrong. I don't see a conflict between the two.
So, along comes a commenter and pretty much lays it all out for me. "Reverend Joe," thank you very much. Let's have a good look at your post, which does a good job of laying out the points.
Rev. Joe says:
That said, I would have had no philosophical issue with downloading EoTP from the DHB BitTorrent links that you, in part, got removed from the DHB website, had I the desire to watch it. I have to tell you, you harm your own case when you speak hypocritically about what the supporters of DHB's campaign are trying to accomplish, and also when you call them "theives" and "pirates". Is it just to call the people your Uncle chronicled "criminals" and "unpatriotic" because they broke the law of the land, unjust as it was?Well, Rev. Joe, I acknowledge that I personally can't do much to stop you from clicking the download links. For the record, the only way I (in part) got those links removed from the DHB website was by conversing with Tiffiniy Cheng. I am not a decision maker nor a rights-holder of Blackside, Inc. Please be sure to get your facts straight. Any decisions involving lawyers, and any conversations involving lawyers, explicitly don't involve me, as I told Ms. Cheng at the beginning of our first (and every subsequent) conversation. Whether or not you believe that is up to you.
I "harm my own case" when I speak "hypocritically" about what the supporters of DHB's campaign are trying to accomplish, and call them "theives(sp)" and "pirates". Um, okay, I'm not sure how that's hypocritical, as I'm not out there copying stuff, but fine. As for it being just to call the people my uncle chronicled 'criminals' and the like, well, that's a whole other issue. First of all, it depends which people. He chronicled a lot of people, from murderers to preachers to folks that might qualify as saintly. Let's take the average protester. Perhaps the ones that took part in non-violent sit-ins. They probably wouldn't technically be 'criminals' but we could indeed call them guilty of misdemeanors, or whatever the penalty for trespass was - I don't know offhand.
My point is that what you call them is a technical term. It has nothing to do with moral justice. I, personally, *do* indicate that I feel what they are doing in this case is unjust. I do *not* feel that what the protesters did during said sit-ins and the like was unjust. If you read my entries, I did try to explain why.
The next paragraph is really my favorite:
You are entitled to your opinion of what "parts of copyright law" should be reformed, of course, just as the KKK is entitled to theirs about what "parts of segregation law" should be kept. Personally, I'd like to scrap the whole lot of copyright laws and start over. But when you insult someone for civilly disobeying a law *THEY* find to be unfair and think should be changed, invoking the name of your Uncle in the process, you're just being a hypocrite. And, if it's true your Uncle would be "fuming at" those downloads, then he was a hypocrite, too. It's fine if you want to say you disagree with our assessment that this part of the law is unjust and should be disobeyed -- but keep your insults to yourself -- or expect harsher ones in return.Well! Refreshing! This really should fall under some modified form of Godwin's Law. At this point, we begin falling into what I can only assume are attempts to actively muddle the two struggles - civil rights and copyfight - both to vilify me and elevate the copyfighters. I find myself compared to the KKK in the first line. I'm sure that as a Black Jew, the KKK and I would have much to talk about. Reverend Joe notes that he'd like to scrap the entire copyright law and start over. This is perfectly valid opinion, one that should indeed be here - huzzah and more power to you, Rev. Joe. Thanks for your input. I wish you luck in your struggle to do so. I happen to disagree with you, but that's OK. "But when you insult someone for civilly disobeying a law *THEY* find unfair..." um, hold the phone. One of the key tenets of civil disobedience, as I mentioned earlier, was the maxim that it not deprive, harm or involve others in your action, or if so, does so to the minimum amount possible. That's not the case here.
Oh yeh, and what insults? 'Pirate?' 'Thief?' Okay, well, that might be an insult, I suppose, but it's a technical term, and if you say you're not, it's because we disagree on the actual law itself which, at the moment, is the law of the land - and which you acknowledge you're breaking. So 'thief' fits, technically. *I'm* the one who's been compared *somewhat humorously, I do admit) to the KKK. Man, I'd *love* to see their faces if I showed up at a meeting...shades of The Hebrew Hammer ("Shabbat shalom, motherfuckers!!!") Heh. Heh heh. Anyhow, call Tiffiniy - I'd like to think our conversations were carried on with the utmost civility.
Let's jump to the whole next section, where you claim 'Of COURSE it's about MONEY.' Um, newsflash...no, it's not. As I said, although you apparently don't believe me, I don't get any money from Eyes on the Prize. Although I realize you may have trouble realizing this, it is possible for people who own things (and that includes intellectual things) to have an interest in how those things are used. My uncle didn't make Eyes in order to make money, he made it in order to say something. This does not mean he was averse to making money from it when possible - but primarily, he made it to say something very specific for posterity. He was so concerned with the specifics of that message, he made sure there was a teaching plan produced with the film, a laserdisc set to be used with the teaching plan, a book designed to be a companion to the film, and spent innumerable hours of his life giving talks about the film and the surrounding history in the hopes that the story would be told and told consistently. One of the reasons he left the films themselves to his sisters was because they shared, closer than anyone else he knew, his experience growing up. They weren't and aren't filmmakers. They didn't know anything about running a film company. But they went through the same upbringing he did - the experience that led him, in his middle teens, to start thinking about making what would become Eyes on the Prize.
That consistency of message is not something that just happens and sticks around once the film is made. It requires a steward. Someone who decides what the film will be used for, and how. Someone (or someones) who will push for the film, and try to ensure that the film doesn't get appropriated for other fights, ones which (while important) are not the fights which Eyes on the Prize was made to commemorate.
It confuses me how someone who purports to be for a movement which claims to elevate the importance of information over money rights can't understand that there might be motivations other than money for trying to retain control of a work. Finally, this in no way involves 'lording it over the public.' I am the public. The entities my mother and aunt and their agents are negotiating with are not the public, some of them; some of them are. You appear to have this false dichotomy built up in your head where anyone who owns the rights to anything is no longer 'the public.' Strange. Where does it say that producing something means one must sign away one's membership in the 'protected class' of 'the public?' I am being honest, intellectually. I'm sorry if you don't think I am; that's your prerogative. But your sinmple refusal to believe it doesn't make it so.
Moving right along.
Next bit of irony -- you complain that: "even if it is legitimately impossible to identify who owns a particular clip (due to death, loss of records, etc. etc.) it may still be either impossible or prohibitively difficult to ever package, sell or publicly show any work containing that clip again - even if it is a five-second newsreel clip from fifty years previously."Ha. Wow. I don't even know where to start. Okay, at the beginning.Isn't this rich? Let me see if I can follow this ... you feel draconian restrictions and complete, no-registration-necessary control over everything from a scribbled doodle on a scratchpad to interview archival footage is BAD when it bothers YOU, the documentary maker / heir, but the same sorts of draconian restrictions on the PUBLIC, long after both the author and a meaningful period to exploit the work commercially are long expired, are GOOD policy, because it HELPS documentary filmmakers financially. Hmmm, I think I start to understand your motivations in this debate, finally.
The quote you offer at the start is me trying to explain some of the things I think are wrong with the system. WRONG. As in, agreeing with you. Next please. I believe in compensating owners for their clips. I don't claim to know what the proper balance is between their rights and the public's right to access them. I never have. That is, it seems to me, the question. I do believe that the creators of those clips have some rights, yes. I believe that in the event an owner can't be easily located ("orphan work") then there should be no restriction on its use, and it should be considered public domain - like a trademark, if no one steps up to defend. But that is all my personal opinion.
"Hmmm, I think I start to understand your motivations in this debate, finally." Oh good. I'm so glad! A day without elementary sarcasm is really a wasted day for me. My brain suffers without the challenge.
"But please don't tell us you're a crusader because you're telling people to steal his hard work."I didn't call them terrorists. Ever. Check carefully. Between that and the KKK accusation, where precisely are you coming from? Is this because of my name?Let me explain something to you if you're going to continue to engage copy-fighers in this manner. You open yourself to endless abuse with this kind of rhetoric. There is nothing going on in this controversy that involves stealing. As you may or may not be aware, stealing involves taking something away from someone who already owns that thing, so that they no longer have it. What is happening to you / your Uncle's estate is called copyright infringement -- thats what we call it when someone violates the U.S. Law that maintains an artifcial monopoly for one party over the copying of some creation by everyone else. Calling the people who do violate that law for non-commercial purposes "thieves" is about as accurate as call those who violated segregation laws "terrorists". And the motivations behind the two inaccuracies are pretty much the same, as well.
Anyhow you continue to make my point for me. I 'open myself up for endless abuse?' Great. As I said - the tactic here is to hijack Eyes on the Prize and then utilize both it and this debate as publicity mill for the copyfight debate - which drags Eyes on the Prize not only crosswise into the Copyfight debate itself (which is merely a muddling of its actual intent) but down into the debate level of, well, people like you, sir. And that, truly, is a loss for us all. It don't matter what happen to me, but I don't want this film dragged through 'endless abuse' from 'engaging copyfighters.' It has nothing to do with that.
So, "Reverend Joe," thanks very much for providing us with a timely demonstration.
I wanted to take a moment to talk about some language they use on the page. They rhetorically ask if what they are proposing - the distribution, duplication and exhibition of EoTP - is 'Civil Disobedience.' According to them:
So, are these community screenings civil disobedience?We don't think so at all. The First Amendment and the doctrine of "fair use" can clearly be extended to include the right to distribute a film of such important historical significance as Eyes, when such a film is otherwise unavailable. The history of the Civil Rights Movement is simply too important for us to let its most comprehensive documentary languish in copyright purgatory. This Black History Month we're working to ensure as many people as possible have access to this essential film.
But that doesn't mean that the law shouldn't change. Our present copyright clearance environment forces filmmakers to pay exorbitant fees and to go through piles of paperwork before their films ever see the light of day. Consequently, many works of art will never be released or even attempted and that weakens our culture and our shared history. We need to move back to the original purpose of copyright and find ways to ensure that creativity is supported rather than unnecessarily stifled. And Congress should positively reaffirm the fair use rights of the public... so that "free speech" doesn't just mean the right to hire a lawyer.
All right, fair enough. Let's have a look at that, given that I ranted about the difference between Civil Rights era divil disobedience and this form of direct action in prior posts. I was responding, in those rants, to quotes by Mr. Guyot, displayed on Downhill Battle's webpage, who wastes no time in encouraging everyone to 'violate laws.'
Back to Downhill Battle (DB for short hereafter) and their rationale. Why are they so concerned for EoTP? Well, they seem to be concerned because the film is 'vanishing from library shelves,' from schools, and the like. They want to distribute it to all comers over the internet in a digital format so that these students and library goers can see the film that they saw and were moved by and that the evil copyright law is now preventing those libraries and schools from showing.
My question to them: Have they read the copyright law?
Necessary preface: I AM NOT A LAWYER!
Having said that, let's trot on over to the U.S. Copyright office, where our government reasonably lays out the current law for our perusal. Using the search box at the top, drop in 'Section 108' which is the section of the copyright law dealing with the rights of libraries and educational institutions concerning works that they already possess. You'll find a result for a .pdf of a publication named Circular 21. Don't be intimidated, it's only 24 pages long; it's a booklet for just this sort of occasion. :-) Let me give you the introductory text (and don't worry, government publications are excluded from copyright protection):
The Subjects Covered in This BookletThe documentary materials collected in this booklet deal with reproduction of copyrighted works by educators, librarians, and archivists for a variety of uses, including:
- Reproduction for teaching in educational institutions at all levels; and
- Reproduction by libraries and archives for purposes of study, research, interlibrary exchanges, and archival preservation.
The documents reprinted here are limited to materials dealing with reproduction. Under the copyright law, reproduction can take either of two forms:
- The making of copies; by photocopying, making microform reproduction, videotaping, or any other method of duplicating visually-perceptible material; and
- The making of phonorecords; by duplicating sound recordings, taping off the air, or any other method of recapturing sounds.
Okay. Let's dig in to what else this thing has for us. STUDLYCAPS are my emphasis. Section 108, on page 12:
Limitations on exclusive rights: Reproduction by libraries and archivesHm, that sounds like it applies to our situation. What else have we got?(a)Notwithstanding the provisions of section 106, it is NOT AN INFRINGEMENT OF COPYRIGHT FOR A LIBRARY OR ARCHIVES or any of its employees acting within the scop of their employment, to reproduce no more than one copy or phonorecord of a work, OR TO DISTRIBUTE SUCH COPY OR PHONORECORD, under the conditions specified by this section, if --
- the reproduction is made without any purpose of direct or indirect commercial advantage
- the collections of the library or archives are (i) open to the public, or (ii) available not only to researchers affiliated with the library or archives or with the institution of which it i a part but also to other persons doing research in a specialized field; and
- the reproduction or distribution of the work includes a notice of copyright.
(c) The right of reproduction under the section applies to a copy or phonorecord of a published work duplicated in facsimile form solely for the purpose of replacement of a copy or phonorecord that is damaged, deteriorating, lost, or stolen, if the library or archives has, after a reasonable effort, DETERMINED THAT THE AN UNUSED REPLACEMENT CANNOT BE OBTAINED AT A FAIR PRICE.Again, that sounds like us. Now, there is a great deal more information in this booklet, and as others wiser than me have noted, Copyright law is a morass. I am not claiming that it actually explicitly permits this activity. What I am saying is that there would appear to be mechanisms in place by which most of their stated concerns for EoTP are already addressed - mechanisms under which the onus of actually pursuing libraries and schools for preserving their copies would fall on the rightsholders (that is, us) if we felt they were doing wrong. This part of the law has been around for years. While it may be confusing and in need of streamlining, I would suggest that this isn't the part of the law that is 'broken' per se.
What part is? Well, suggestively, Downhill Battle are the ones who defended DJ Dangermouse on the release of the (excellent!) Grey Album. In that case, the part of the law under debate was that of derivative works; that is, the use of snippets of prior art in the creation of new works. I can see how this would relate to Eyes; it is, after all, built partially on the assembly of archival clips of newsreel and interview footage from historical sources. It is the licensing of those pieces of intellectual property that are presently delaying a new release of EoTP.
However, I would argue that the situation is not the same. The Grey Album utilized small sub-parts of larger artistic works - samples. It used clips of larger works, and unless you want to argue that art is holographic (and you might, don't get me wrong) then there is a difference between three bars of a song and the full five minutes. But in the case of EoTP, the clips that were licensed were important because of the thirty seconds or whatever that were used. They were, for example, footage of black students entering a school under the protection of the National Guard - an event fifteen seconds long. All the importance and relevance of that clip was contained in that fifteen seconds - and it was used in its entirety. Comparing the use of that clip to the use of a sample by DJDM is somewhat specious. Although the process of assembling the pieces into a coherent whole can certainly be compared as a process of art, the subject matter is qualitatively different. I (and this is just me speaking, remember) believe that whereas DJDM was using small bits of songs as reference, and samples as homage, EoTP was including relevant pieces of historical record which were licensed in their own right, whole.
Next, since Downhill Battle seems wont to talk about all of this on a philosophical base, let's consider the targets. DJDM's source material is/was owned by large record companies who are/were busy lobbying lawmakers for copyright extensions after the death of the artist to increase corporate profits and the like. EoTP, however, includes in many cases interview footage of still-living individuals, or individuals whose immediate family owns the rights to their appearance - and those are the people who must be compensated for the use of that footage. In those particular cases, those clips aren't even twenty years old. They were filmed by Henry and his team specifically for this movie.
So unlike the DJDM case, we have a film comprised of not sub-samples of larger works, but of the aggregation of complete, smaller and wholly important short clips from the historical record. Unlike artists, that's how news photographers make their money - they can't sit in a studio and produce, they have to run around and hope to God that when fifteen important seconds happen, they manage to capture it on their cameras. When that does happen, then that is their only source of income, and while it's talent that will let them capture it in a manner that lets us their viewers see why it's important, there's an awful lot of luck in their being there at all. So they need to make their living off a few five-second clips. They can't bury those five seconds in a three minute track and force you to buy the whole thing (well, at least, not easily).
Whew. OK, enough for now. I'm trying to blurt all this out, because I see that Blackside's lawyers are now involved. I approve, but I don't want everyone who sees this to think that they are just because Blackside is acting in a kneejerk 'HEY! THAT'S OURS!' fashion. There are multiple sides to this. I happen to think that Downhill Battle has some really good motives. I just happen to think they picked a really, really bad example for their campaign, and my reasons aren't just because I'm connected to it. I think the EoTP controversy has actually precious little to do with the parts of copyright law that they're actually concerned about, and I'm trying to explain why. They need to refocus their efforts on the things that need fixing, and find examples that actually point out why the law is broken and where. DJDM and the Grey Album was a great example. EoTP is not.
The facts are available elsewhere. The media may not be. That's why Henry put those clips in Eyes in the first place - because he found them to be the most powerful images of the times. Also, he and his colleagues filmed an enormous amount of original interview footage with dozens of participants in those turbulent times which makes up the rest of the Eyes films. The interview footage used in the final cuts of Eyes is certainly not available anywhere else.
However, I am not saying that efforts to make archival clips more readily available should be quashed. In contrast, I am all in favor of them. I'm not suggesting that they be ripped from the hands of their present owners, either! However, especially in the case of 'orphan' clips which were taken by large organization pool reporters and clips whose owners are no longer known, making access to those pieces of visual and audio history needs to be made easier. Note: not necessarily cheaper, but certainly easier. As an example - as I understand it (and IANAL!) even if it is legitimately impossible to identify who owns a particular clip (due to death, loss of records, etc. etc.) it may still be either impossible or prohibitively difficult to ever package, sell or publicly show any work containing that clip again - even if it is a five-second newsreel clip from fifty years previously. That's clearly (to me) ridiculous.
So in that sense, I am in agreement with the copyfighters. Free this media, and this history; 'free' it in the sense of making it easier for us the people to access and distribute it. I would note that Blackside is not in the habit of locking away history from the people; in fact, all of the footage and clips that were not used in the final cuts of the films were retained by The Civil Rights Project, Inc (the non-profit set up for the fundraising for Eyes and its associated projects) and have been donated to Washingon University, where the public and any filmmaker or student is free to access the collection.
As is usually the case, the information that is in Eyes is almost entirely duplicated in those clips. What is in Eyes is a particular assembly of that information - the 'art', if you will. When I speak of Eyes as being different from the history, this is what I mean. This 'art', work, and assemblage, which is qualitatively different from the history and information contained within. Sure, protest the orphan works copyright problem (and, in fact, DO IT NOW - the U.S. Copyright Office is soliciting public commentary on this VERY ISSUE RIGHT NOW! Commentary is due by March 25th, so put those writing and thinking skills to use for the good of us all!) - protest the fact that we can't re-issue Eyes without an onerous amount of nonsense involving fighting these extremely draconian protections for lost and someties nonexistent copyright holders. But please, don't lump in the living, breathing rights to the piece of art that is Eyes on the Prize with the 'orphan works' or with the five to sixty-second newsreel clips from fifty years ago that are the actual history which everyone seems to be so concerned about. Even the interviews themselves which Henry did - the interviews with figures yers later - the raw interview footage is nearly all available at Washington University. Go get it. Make your own version of Eyes. Make a mash-up. Tell us the history in your own fashion. He'd like that.
But please don't tell us you're a crusader because you're telling people to steal his hard work.
...the argument really does turn out to be about copyright law, not just about fairness to Henry Hampton and his family. The argument for Eyes on the Screen (the campaign) starts from the premise that the copyright to the film may be owned by Blackside, but the real value of the film is the history, not the film. The history isn’t owned by anyone. Moreover, it isn’t just Blackside’s copyright that’s at issue; re-releasing Eyes on the Prize is complex, and the Eyes on the Screen campaign is arguably appropriate, because of copyright clearance issues that have to be resolved for material that the film borrowed from other sources. No one is necessarily a bad guy here. There are just an awful lot of people with irons in the copyright fire.Here’s the tie to the basic copyright question: Is protecting these copyrights, including Blackside’s, the best way to ensure that the history is widely known? Or is commonsizing the film – long after it was first broadcast and distributed, and long after Henry Hampton’s place in film history was assurred – a better way to share that history?
I would respond as follows. Eyes on the Prize is not the history. The history is not the film. Rather, Eyes is one filmmaker's idea of a presentation of the history, in one medium. Its execution was the work of hundreds of talented people - I don't want to sound like I'm claiming Henry did it all by himself in a garret somewhere! The film came to be, however, because from the time he was a teenager, he worked towards building Blackside, building a team, and doing that movie with them.
As such, claiming that the importance of the history should grant rights to the people to appropriate Eyes on the Prize strikes me as a bit of an overreach. The history is there. It's available in all manner of places. However, my uncle and his colleagues did an awful lot of work to make it available and accessible in one place, and understandable and emotionally meaningful to viewers who did not live through it. That was their contribution. Claiming now that because the history they covered is so very important that their work should be available to all is somewhat akin to proposing a system of Eminent Domain for information and intellectual property. That's all well and good, but who decides? The mob? And using what criteria? If we take Downhill Battle's example, any group of activists with a website can suddenly then declare Eminent Domain on any piece of intellectual property that they wish, set up a website and a BitTorrent link, and have at it.
Let me approach this from another tack. Everyone keeps talking about how there are old clips whose ancient copyrights keep Eyes from being distributed to a new generation. Whether or not one agrees with this, let me point something out. Sonny Bono copyright extensions or not, Eyes itself was made only around eighteen years ago. Its rights rest not in the hands of Henry's descendants, but in the hands of his sisters - one of whom is
If you truly think that Eyes on the Prize is so important that it should be freely available to anyone without recompense, then again, what is the motivation for the sponsors who originally supported Eyes on the Prize to do so again? What is the motivation for the filmmakers like my uncle, who work for pay and for art and duty, to do their jobs? Not out of fear for their legacy in years to come, but out of worry for their rights to their work if people can slap their work up on a website because someone has judged it 'too critical to let lapse' when they themselves are working to get it rereleased, without even asking if that's the case?
This isn't about money. This is about ownership, pride thereof, and control of one's creation. If Henry had had the money when making Eyes to clear the rights to those clips in perpetuity, you damn well better believe he would have. But he was operating on tight funding, and his choice allowed the movie to be made, aired and sold - if even for a limited time. His thinking was (from what he told me) that if the film was a success (and they didn't know if it would be) that later they could fundraise for additional rights clearances and re-issue the film. That's what is going on today, and that's what this protest movement is jeopardizing.
The blog The Madisonian asks a good question about this whole issue, wondering if this means that Eyes is 'commonsized' in the way the song 'Happy Birthday' is - that is, moved into the commons. Their conclusion, based on Wired's latest blurb, is a definite 'no' - presumably because the legal representative of the rightsholders stated unequivocally in response to a query that...well, see for yourself.
What appears (to me) to be happening is that various actors seem determined to push this into the status of 'test case' using 'Eyes' as cannon fodder, the effect on Eyes be damned. This saddens me greatly. Several of the figures in this debacle have made attempts to convince me of the purity of their motives, describing their support for the availability of Eyes to the general public, and the like. I don't in any way believe they are lying to me. I think they are, in fact, just as fervant as they sound when they tell me it is incredibly important that the public have access to Eyes on the Prize. I think it's important too.
The problem is that the reason I think it is important that the public have access to Eyes on the Prize differs from theirs. They think it is important as an example. I think it is important because of what it says. There shouldn't necessarily be a conflict there, but there is. Why? Because the example that gets used to push this case is going to suffer. The points, teachings and content of that example are going to be backgrounded, slightly, forevermore, behind the more-recent and now-blazingly-public part of its 'new role as poster child' for this new fight.
That's where we part ways.
I'm in no way suggesting that the fight that's being fought here is less important than the fight that Eyes on the Prize chronicles, educates about, and poignantly remembers. But I am saying that the fight that's being fought here isn't that fight, and that it's a disservice to the people who suffered, fought, died even in that fight to have their struggle and the record of that struggle appropriated as the symbol of a new fight - one which really has nothing to do with theirs.
It disturbs me that none of the outlets pushing this project seem willing to mention this 'other side of the story' - link to it, mention it at all, or offer comment sites where it could be mentioned. Still, it makes sense. If you're trying to roll a bandwagon, you don't want to point out the potholes.
It's a funny feeling, being 'the other side' in the blogging revolution. I'm now (I suppose) one of 'them' - the 'evil rights holders' who doesn't agree with the 'cool revolution.' And I don't have a voice - because nobody links to my blog, and because - unlike the record companies, who are the usual targets of this sort of action - I don't own media channels and don't have money. I'm a workin' stiff with a computer - that's all. So I don't get heard unless somebody decides to come over here and read my opinion.
What that means is that the blogging revolution has come full circle in this case. They're not the plucky underdogs. Blackside, inc. is not some megalithic corporation with big vaults of IP that they Won't Give You, and money that they're hoarding. Blackside is two of Henry's sisters, one retired and one nearly so. I'm his nephew, workin' stiff with a mortgage and a condo. I don't have a TV station, or anything like that. Blackside itself is a set of legal documents and a telephone line, these days - because my mother and my aunt aren't filmmakers, and the real purpose of Blackside (as told me by Henry) wasn't even really to make films; it was to train young black filmmakers in a time when there weren't really that many of them out there.
He (and others with him) did that. Many of them went on out into the world to make films, and tell the Black Side of things. That made him proud. At that, Blackside served its purpose. That, and it allowed Henry to make movies - movies he'd wanted to make all his life.
Anyway, now, suddenly, the bloggers are fighting Big Media, the copyright system, what have you, but they're doing it using my family's property as cannon fodder. To use a metaphor only slightly less ludicrous than some that have been offered to me as justification for their actions (by the players), I feel like someone whose hennery has been raided by protesters, and all my eggs thrown at the congressman during a protest. The cops aren't after me, and we have an enlightened enough system that it's all treated as protest - except I'm out my eggs, and if I want recompense, I have to go after the protesters in court. And then I'm the bad guy, not the congressman who voted for the law or the lobbyist who pushed for it - me, the guy whose eggs are missing.
But the protesters still get the press.
Oh boy.
This touches me much harder than usual, and in conflicting directions. On the one hand, I agree wholeheartedly that the copyright system in the United States is fucked up and in dire need of repair. I also agree that Eyes on the Prize is one of the sterling examples of how badly the system has failed us.
On the other hand, I have some skin in this game, and also some information that many people might not. Henry Hampton was my uncle; I spoke at his memorial service. I loved him dearly, and miss him daily. As a young 'un, I remember doing 'makework' gaffer tasks on some of the interviews for Eyes I.
This protest might be a good thing, as far as copyright goes. However, as far as Eyes goes, it's really not. Really, really, really not. It's a bad thing in many senses of the word. I know that one of the first things I'm going to have to convince everyone of is that I'm not saying this out of greed, so let me be clear about how I'm involved. My mother and her sister inherited Blackside, Inc (the film company my uncle Henry started, which made Eyes) and also inherited the rights to the Eyes films. My family receives no royalties on any sale of any Eyes media, as far as I'm aware; all rights to duplicate and sell Eyes have expired (which is one reason it is not available) and when it was available, PBS received most of the proceeds. At the time, Blackside received whatever royalties were forthcoming, and Henry was alive and owned Blackside, so the question of my motives would be moot.
Here's why it's a bad thing that Downhill Battle is doing and proposing.
I am heartily in favor of everybody showing their copies of Eyes to as many people as they can. If you have a copy of Eyes that you bought or inherited, great; show it. But please, please, please don't don't encourage others to duplicate it and distribute it, and please (above all, as some motherless losers are doing on eBay) don't sell it.
There are negotiations ongoing (on and off, but ongoing) to re-issue Eyes on the Prize in DVD format, ideally with additional materials for teaching. Funds are being solicited for this effort, and sponsors pitched. This would allow the production of additional materials and allow Eyes to be distributed to the public and libraries and schools once more, playable on modern equipment and archived on more durable media. Every time the 'COPY EYES!' website gets seen by one of the rights-holders we have to negotiate with, however, the chances of us ever getting this done diminishes. This brings me to my second point.
Eyes on the Prize is not about the copyright movement. It is not about intellectual property. It is about the Civil Rights movement, and the Black experience in America. Using it in this way, no matter how noble the intention, will serve to brand it fairly indelibly in the minds of the policymakers as the 'spearhead of the p2p movement' and the 'emblem of the anti-copyright movement.' While I'm not saying that's necessarily a bad thing, I am saying that that will absolutely detract from the teachings and message that Eyes was, in fact, created to get across - teachings of history and messages of racial tolerance and diversity - by irretrievably muddling in a contemporary, hot-button (and entirely unrelated to the original topic) fight.
Whatever the motives, the countercopyright crew are essentially hijacking someone else's life's work and appropriating its power and recognition for their own purposes. In the process, they are potentially diminishing and damaging its own effectiveness. It's not their place to make the decision to throw the weight of Eyes behind this fight.
Finally, I would point something out. They invoke Henry Hampton's name and legacy on their page, where they advocate downloading and illegally distributing his works. Henry Hampton may have made documentaries, but that doesn't mean he worked for free. Blackside, Inc. was always a for-profit corporation, and Henry Hampton took home what profits his films were able to generate. So trying to invoke his name while you encourage everyone to trample on the rights granted his works strikes me as extremely hypocritical.
Addendum
It has been pointed out to me that the use of Eyes on the Prize by Downhill Battle could be looked upon as akin to the use of "This land is our land" by JibJab during the recent campaign. I respectfully disagree, and here's why. JibJab did, indeed, take someone else's existing piece of work and make it available for download without asking consent in order to make a point about a modern debate. However, JibJab used that piece of work as the basis for an original satire, and the piece of work itself (the Woody Guthrie song) was relevant to the point at hand (as in all good satire). On top of it, they layered an original contribution (a Flash piece) which was linked to the music.
In this case, Downhill Battle has done no such thing. The have taken an existing piece of work (Eyes on the Prize) and are offering it for download, and encouraging others to download, duplicate and distribute it, in violation of the law. No original work has been added, and - more important - nothing about Eyes on the Prize is relevant to the current debate save its status as an out-of-print film! As such, any out of print film could be substituted for it, and Downhill Battle's page would make just as much sense. However, it wouldn't be as effective. Why? Because Eyes on the Prize has recently been profiled in Wired Magazine and Salon.com, talking about this very issue. It already has name association with this problem. Plus, it is (or was) a relatively well-known documentary film, one of the highest rated films on PBS when it was aired. Libraries and schools are fond of it. In short, there is a ready-made sympathetic audience.
None of this, however, matters to the point - which is that what Downhill Battle really cares about is not the work itself, but the action. The action of downloading, distributing, and showing it. Defying the currently broken copyright law. Thus, it is qualitatively different from the use of "This Land is Our Land" by JibJab - who utilized the content of that famous song to make a political point that resonated.
If, in fact, what they really cared about was 'preserving Eyes on the Prize for posterity' as they have claimed - I find it extremely troubling that no attempt was made to contact any of the current rights holders (my family) to simply ask us what efforts, if any, were being made to ensure the future availability of this work to the public. We would have been happy to detail (as much as we were able) the state of ongoing research, fundraising and negotiations, all with the aim of clearing, producing and distributing a DVD release of Eyes on the Prize. This is why I have trouble believing arguments that what they're doing is really 'for the good of preserving Eyes.' Even if they don't agree with my arguments about how this effort damages ongoing attempts to reissue it, they never attempted to determine what (legal) efforts were underway to preserve and release the films.
Addendum Mk. II:
Oh yes. That little dig about eBay...for anyone who is desperate to acquire Eyes on the Prize and is offered a set for sale, please note that it was NEVER issued on DVD. Anyone trying to sell you Eyes on the Prize I or II on DVD is selling you a homemade (illegal) copy. There was a Laserdisc version of Eyes I (and II, I believe) available for classrooms, and a lucky few folks have those, so Laserdiscs are likely real - but no DVDs, nope, never. If you see them on eBay, report 'em as frauds. Not for my sake (as I said before, I don't see any money from any of this) but because we don't want some poor person taken for their money because some unscrupulous loser is sitting in a basement turning out DVD burner copies of the thing. Yes, I've seen it happen, and yes, I've called eBay down on them. I've felt unclean for doing it, but also felt that it had to be done.