Although it is often said that a work is protected by copyrestriction, this is strictly not true. A work is protected through the existence of lots of copies and lots of curators.
Free and open source software has demonstrated the ethical and practical value of the opposite of copyrestriction, which is not its absence, but regulation mandating the sharing of copies, specifically in forms suitable for inspection and improvement. This regulation most famously occurs in the form of source-requiring copyleft, e.g., the GNU General Public License (GPL), which allows copyrestriction holders to use copyrestriction to force others to share works based on GPL’d works in their preferred form for modification, e.g., source code for software. However, this regulation occurs through other means as well, e.g., communities and projects refusing to curate and distribute works not available in source form, funders mandating source release, and consumers refusing to buy works not available in source form.
A quiet regular reader of Via Negativa who knows of my interest in such things tipped me off to a new Code of Best Practices in Fair Use for Poetry (via Boing Boing). It grew out of the earlier and most excellent “Poetry in New Media: A Users’ Guide” (which is still perhaps a more interesting document, especially to people outside of the United States). Developed under the auspices of the Poetry Foundation, the new document is a first crack at an articulation of Fair Use standards for the American poetry-making and -using community, standards that could not only guide use but could even conceivably influence U.S. copyright cases, because as it points out, courts deciding such cases often take into account “whether the user acted reasonably and in good faith in light of standards of accepted practice in his or her particular field.” Continue reading “Code of Best Practices in Fair Use for Poetry: a vital first step”
Windy, with mottled gray
and white clouds, and a muddy
yellow smudge for sun: as in
a fingerpainting—and a siskin’s
sharp-edged note to peel the first
layer of morning away from darker
dark. Here, too, I tense and quicken
toward what might haul and bear
me over from the depths. Up
from the underground cistern,
the bucket pitches and sways;
above, that patch of sky
and the wind’s wide hands,
writing and rewriting
what the day might be.
High winds stir the trees like surf.
The racket they make is counterpoint
to the quiet I want to make in my heart.
There, a dead branch crashes
every few minutes. But yes—
even there, birds forage: their small
hungers, twittering like blue
flames in the birches.
If you’ve ever looked at one of my mother’s Appalachian Seasons books, you’ll see where I got my love of epigraphs. Each section of every book begins with a quote from one of her favorite authors, and each inclusion represents an exchange of letters with a copyright holder and the payment of some small fee. That’s because the “fair use” provision of U.S. copyright law only covers quotations when they are used as citations or for review purposes; an epigraph clearly represents a higher order of appropriation.
For one of my mom’s books — neither of us can remember which one now — she wanted to use four or five lines from her favorite poet, Mary Oliver. This was some fifteen or twenty years ago, before Oliver had become quite as widely known as she is now. The publisher directed her to Oliver’s agent, and the agent demanded $500 — roughly five times what the other authors or heirs, many of them more prominent than Oliver, were then asking. My mother is fiercely protective of her own rights as an author and a self-employed person, and always resents it when people imply she should share her expertise as a naturalist for nothing. But $500 for a few lines of poetry struck her as ridiculous, and she quickly found something else to go in its place.
I couldn’t help thinking that the real loss was Oliver’s. Poets don’t often get the chance to reach a receptive audience of nonspecialist readers — people who are not poetry nerds or graduate students in English. Of course, I have no idea whether this agent truly represented the poet’s own attitudes. It’s kind of a moot point, now, not only because Oliver’s work has achieved wide renown, but because her copyright is regularly violated by hundreds, perhaps thousands of bloggers doing precisely what my mother couldn’t get away with in print. It would hardly be worth a lawyer’s time to track down these violators and ask them to remove the lengthy quotes and reproductions of entire poems by Oliver that dot the internet. And I suspect this free, if illegal, exposure has earned the poet a good deal of revenue in book sales than she wouldn’t otherwise enjoy. (Not that the Pulitzer Prize and National Book Award didn’t help, too. Something had to bring Oliver to all those bloggers’ attention in the first place.)
I’ve been thinking about this lately in the course of mulling over my own relationship with copyright law. I find the whole concept of intellectual property a little disturbing, especially the way it is now being extended to cover things like genetic sequences of naturally occurring organisms or certain combinations of common words. For years I’ve been content to license my work for reproduction under the popular Attribution-Noncommercial-No Derivatives license from Creative Commons, which I sort of vaguely figured would provide others the kind of freedoms that I would like to have to reprint their own stuff.
But over the past year and a half, my involvement in the WordPress user community has exposed me to a lot of discussion about the closely related open source and free software movements. I’ve always admired the idealism of the WordPress core and plugin developers, people giving away their own works based on a simple and pragmatic faith that greater good will come from collaborative efforts. I started thinking, shouldn’t poetry be open-source as well? Don’t I treat it as such every time I post a translation or a stand-alone quote here at Via Negativa? What would my epic poem Cibola have been like without all those montages of epigrams preceding every section? The freedom to borrow and remix others’ creative works seems vital, even intrinsic to the creative process. What does the original creator lose by this?
I do want credit, of course — and I don’t want some bastard taking my works and claiming them as his own, preventing other people from making free with them as he did. To some people, the most selfless thing to do is to release one’s works from copyright protection altogether — put them in the public domain, or at most require attribution only. But I’m not interested in a quest for moral purity, and I think that any serious writer or artist who wants to pursue selflessness is in the wrong business: it takes a hell of a lot of ego to create. You really have to believe in the value of what you’re doing. The challenge is to let go of your children once they’re fully mature, and let them have their own lives. I found the GNU Project‘s argument for copyleft persuasive. (“Copyleft” is what Creative Commons refers to as “share alike”: the stipulation that anyone who distributes software or creative works, modified or otherwise, must pass along the freedom to copy or change them.)
In the GNU Project we usually recommend people use copyleft licenses like GNU GPL, rather than permissive non-copyleft free software licenses. We don’t argue harshly against the non-copyleft licenses — in fact, we occasionally recommend them in special circumstances — but the advocates of those licenses show a pattern of arguing harshly against the GPL.
In one such argument, a person stated that his use of one of the BSD licenses was an “act of humility”: “I ask nothing of those who use my code, except to credit me.” It is rather a stretch to describe a legal demand for credit as “humility”, but there is a deeper point to be considered here.
Humility is abnegating your own self interest, but you and the one who uses your code are not the only ones affected by your choice of which free software license to use for your code. Someone who uses your code in a non-free program is trying to deny freedom to others, and if you let him do it, you’re failing to defend their freedom. When it comes to defending the freedom of others, to lie down and do nothing is an act of weakness, not humility.
One morning a couple of years ago, I clicked onto a friend’s blog to find that he had appropriated the text from my most recent post and rearranged the lines into a poem, with a link back to the original. It was a clear violation of the Creative Commons license I had at the time. If he’d asked permission, I would’ve granted it, but he hadn’t, and it bothered me. It didn’t occur to me that he’d meant it as a surprise. When I challenged him about it, he reacted with umbrage, and implied that I should have been flattered — that his intent had been to pay homage and bring more readers to a great post. A couple of mutual blogging friends weighed in on my side, as I recall, and he took the post down shortly thereafter. We remained friends, rarely alluding to the incident thereafter.
Now I wonder, what the hell was I so bothered about? It seems like exactly the sort of thing that artists and poets should welcome. I love the notion of free cultural works — again derived from the open source/free software movement. The struggle over proprietary software reflects the desire of Microsoft and other developers not only to prevent copying and modification, but even to prevent access to the source code — hence “open source,” and hence the second basic freedom in the Free Cultural Works definition, “the freedom to study the work and to apply knowledge acquired from it.” There isn’t anything precisely analogous to source code in poetry; the creative process is a mystery to all of us. A lot of poets make a living from trying to teach the tools of the trade to others, and that’s excellent — there’s nothing in all of this open-source idealism that says people shouldn’t make money off it (as WordPress.com founder Matt Mullenweg was recently at pains to make clear).
But if I’m honest with myself, I must admit that my every-morning deep reading of several poems by another poet or poets often has a direct influence on whatever I then sit down and write, and not just in the vague sense of giving rise to a poetic mood. Quite often a specific image or turn of phrase will catch fire, and I’ll take that ember and light my own kindling with it. It’s usually too small a thing even to require crediting the author, and my use of it falls entirely outside the boundaries of their own conception, but I still feel indebted in some way. And the only way to repay that debt, I feel, is to write the best poem I can. Of course, sometimes the ember comes from something I observe, or a dream the night before, or an overheard snatch of conversation, but in every case it’s coming from outside. I’ve talked to plenty of other artists and poets, and read many more interviews, and they all tend to say something pretty similar: authentic inspiration comes from an encounter with the other. I guess that’s why it seems so absurd to me to try and assert ownership and control over ideas. The source code of the imagination is existentially open.
What does it mean for me as an author, though, to surrender the right to make money off of every appearance of my works? Because I can hardly hardly call my works free if I don’t let others market their remixes or translations. Initially I retained a noncommercial-use stipulation for all Via Negativa posts not marked as “Poems and poem-like things,” but that seemed too confusing, and besides, what’s the difference? If someone wants to reprint one of my essays or stories, as long as they give me credit and indicate if they’ve modified it, what the hell do I care? I suppose there’s always a remote chance that some musician will turn one of my poems into song lyrics, have a global hit, and make millions, but again I don’t see how that makes me any worse off than I would have been otherwise, without that recognition. And in most cases, I think, reputable commercial publishers do pay the originator of a work. Nothing in all of this stops me from peddling my work, if I have a mind to.
I don’t presume to imply that the way I’ve decided to free up my own work should be the rule for everyone. Many writers and artists see full copyright protection as a matter of basic respect, and lord knows freelancers have been exploited by publishers for a long time — in part because there are so many people willing to write for nothing, just for the thrill of seeing their names in print. The blogging revolution might change the equation a little, because now all of those wanna-be authors can simply start blogs, and find readers and affirmation that way. But I do wonder whether the sorts of people who see publication as a balm for their insecurities would be so desperate to get their names in print if artists and writers became a little less godlike, less inclined to continue to exercise control over their creations once they are loosed on the world. Collaborative efforts might take center stage. We might see the growth of a poetry culture similar to that of classical China, where lines were traded back and forth and poems were exchanged like letters, or Edo-period Japan, where poems we now regard as stand-alone haiku were actually written for communally composed linked verse sequences (in theory if not in fact). Given the unique opportunities for interaction that the internet provides, who knows would might happen if only the author’s name lay a little less heavily on the page?