Comments on the FreeCulture.org draft bylaws

Posted on 29 September 2007
Filed under Students for Free Culture
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FreeCulture.org, the student free culture organization, released the second release candidate (RC2) of its bylaws last week. I am a board member of FC.o and was very involved in preparing RC2; I consider it my last effort as a member of the organization. The following is a guide to the draft bylaws, with my comments. This represents solely my opinion and not that of the board or anyone else.

I urge chapters to vote for ratification and approve the draft.

The draft is not perfect, but it is good enough. It is far better to approve the draft we have and fix bugs later, than to continue paralyzed by a lack of clear organization structure.

In addition, the structure in the draft should be more effective than the current structure, including by re-establishing the Core Team and empowering it, and by creating the possibility for organization staff. Volunteer power alone can only get you so far, and even one staffer can greatly enhance the capacity of volunteers.

The draft is very fair to chapters and includes strong protections and rights. The draft indemnifies anyone affiliated with the organization from any liabilities incurred by the organization — it would be tragic for volunteers to get sued and have to defend themselves in court for work they did for the organization.

In addition, having bylaws is a requirement for charitable tax-exempt status, which would improve our ability to fundraise and therefore enhance the capacities of the organization.

Discussion after the jump.

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Going-away party: DC, 27 Sept.

Posted on 22 September 2007
Filed under Personal
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I’m moving back to Florida from my current place in Washington, D.C. within two weeks. My friend Nicole was kind enough to organize a going-away party for me. It’s next Thursday evening, 27 September, at an Ethiopian restaurant (should be veg-friendly). If you’d like to come, email me at gavin@gavinbaker.com for the invite.

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Sixteen and counting: sharing science on the Web

Posted on 22 September 2007
Filed under OneWebDay2007, Open access
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On August 6, 1991, a post to a Usenet newsgroup started a revolution. Today, the world is tantalizingly close to realizing the vision hinted at in that post to alt.hypertext sixteen years ago.

Seeking a way to facilitate the sharing of data among high energy physicists, a contractor named Tim Berners-Lee designed a system “to allow links to be made to any information anywhere”. Although Berners-Lee cautioned that his “WorldWideWeb” was still “very prototype”, he instructed readers how to obtain a copy of the source code.

Today, the Web is the home to a Fortune 500 company with the mission “to organize the world’s information and make it universally accessible and useful”. The company’s founders were recently named among the 10 richest people in America.

The Web is also the platform for the largest encyclopedia in human history. Not just the biggest, though: coincidentally, this encyclopedia is available at no cost to anyone in the world with access to the Internet. Oh, and anyone can edit it, too.

Millions of people rely on the Web every day for information about transportation, employment, entertainment, medical concerns, and news from around the world. It’s also a vital platform for personal communications and social interaction.

Lest we paint too utopian a portrait, there are significant challenges engendered by the Web, and many opportunities not yet realized. Though powerful, the Web is simply a tool; like other tools, the ends to which it is applied depend on society’s directions. The Web will take us only where we tell it to go. Therefore, today – OneWebDay – seems an opportune moment to consider where we are going.

What, then, became of the Web’s original goal: to enable scientists to share information?

First, the good news. A vibrant and growing movement has developed to lobby and labor for the cause of access to scientific information – not only for other scientists, but for everyone. An impressive array of thinkers and civic leaders have collaborated to build remarkable software, Web sites, journals, organizations, and legal code. The models they have constructed are more equitable, more sustainable, and more effective at promoting human development.

With open access, the cost of scholarly communication is no longer a royalty, but an investment. The result is the ability to do better science, more quickly, for less cost.

The members of the open access movement are no mere theorists:

Nearly 3,000 peer-reviewed academic journals are now made freely available online, in full text, from the minute the newest issue is released.
Of the journals that do not provide free access themselves, the overwhelming majority nevertheless permit their authors to post their own articles for free access on a Web site at their university or in their discipline.
Funders of research, both public and private, are increasingly requiring their grantees to make their resulting articles available online for free.
- In July, the U.S. House of Representatives voted to join the trend, approving language to mandate open access for research funded by the National Institutes of Health, the single largest funder of biomedical research in the world. (Consideration is pending in the Senate.)

Following behind academic journal literature is a move for access to scientific data. The Nature family of journals has editorialized in favor of free online access to this data and adopted policies to encourage its authors to comply. Along with data sets, the sharing of data artifacts such as laboratory images and computer visualizations will not be long. By the day, the tools to collect, search, and manipulate these data improve.

A few bold researchers are going so far as to invite their colleagues – and the public – into the process of research as it takes place. Rosie Redfield, a microbiologist at the University of British Columbia, posts frequent updates from her lab on a blog, often writing several times a week. The academic blogosphere is a place of increasing importance for scholars to encounter new ideas and to share their own. And many of today’s students – a generation which grew up on the Web – are sharing their academic work as naturally as they share photos from their summer vacation.

There are challenges to be solved, technical as well as social and political. But as the evidence accumulates, much apprehension dissolves, and stakeholder consensus aligns in favor of open access. Piece by piece – or, since this is the Web, should I say bit by bit? – an information commons grows. Sixteen years later, we are here.

The Web was built for scientists to share information. Let’s make it happen.

Let’s all sue Creative Commons: a defense, and suggestions for publicity et al.

Posted on 22 September 2007
Filed under Copyright, Creative Commons, Licenses, Open content
2 comments

I get a bit defensive when I see my friends getting sued – perhaps a little bit due to my loathing for the seemingly inevitable day when I, too, get sued. So I was irked when I heard this week that Creative Commons had been dragged into a lawsuit by a photographer and his subject against Virgin Mobile.

The photographer had snapped a photo of the subject and uploaded it to Flickr under a Creative Commons Attribution license, which allows commercial use, modification, and redistribution. Virgin’s advertising department or hired firm found the photo on Flickr and exercised those rights, adding a snarky caption to the photograph, then plastering it on bus shelters and billboards to advertise a new service.

When I first heard the story, I figured it was the fault of some moron (or over-reaching) lawyer who didn’t understand Creative Commons, and thought CC played some active role in the licensing process. Accordingly, I assumed the claim against CC would be dropped quickly. But having read Larry’s take on the complaint, I see the gripe, and it’s a bit more substantive. The photographer argued that that CC failed “to adequately educate and warn him … of the meaning of commercial use and the ramifications and effects of entering into a license allowing such use.”

It’s an interesting claim, which echoes an argument sometimes levied against free software licenses: If you make the license easy to use, then people will use it without understanding what it means. At worst, that will invalidate the license, with nasty effects for downstream users; at best, it’s likely to create bad blood between the license user and its creator.

Without necessarily accepting the claim that their licenses might be invalid, the free software and open content communities have attempted in various ways to hedge their bets against the claim:

The Free Software Foundation requires a copyright transfer for non-trivial contributions to the GNU project. This not only makes it easier to enforce the license against violations, but also adds a bit of certainty that the code is licensed validly. It’s one thing to paste some text into the header of some code; it’s another to sign a contract transferring one’s copyright, which (assumedly) contains a clause stipulating “I own the copyright or have the right to transfer and/or sublicense it.”
The Registered Commons project aims to create a central database of CC-licensed works whose authors have vouched to the database “Yes, this is my work, and I make it available under this license.” Again, the goal is to add certainty for downstream users that the content is licensed validly.

If I were Virgin, I certainly would have preferred to use CC-licensed photos from Registered Commons, or tried to obtain some kind of affirmative response from the author. Although Virgin has the legal right (under copyright) to use any appropriately-licensed work, they don’t have much defense if something falls through (as happened here).

Virgin might have contacted the authors of the works they wanted to use and asked, “We’d like to use your photograph. You’ve already granted us the right to do so, and we don’t have to pay you. But we’d like to send you a small payment as a token of gratitude; will you fill out this form that tells us who you are, and confirms that the work is yours and we can use it?” Certainly, some authors wouldn’t have replied, or would have declined; Virgin can calculate its risk to use those works. But for authors who did reply – and really, filling out a form is a small price to pay for $100 – Virgin would gain a bit of certainty about the work they were using. The relationship now looks more like a contract with a professional photographer, who warrants that he has the appropriate releases etc., than like Virgin poaching personal photos from the Web and pasting them on billboards.

If this regime is starting to sound like it violates the spirit of the CC licenses, it shouldn’t. Frankly, actors with more to lose – like corporations with deep pockets – have always taken extra steps to protect themselves against potential liability. In 2005, documentary filmmakers released a statement of best practices for fair use. One might ask why this was necessary – isn’t the case law relatively clear what constitutes fair use? – but skittish studios would pull up short of their legal rights, afraid of having to face an infringement suit. The best practices document acts as a form of collective security for that community.

Perhaps, on principle, one should insist on exercising one’s rights to the legal maximum at all times. But where there’s even a bit of legal uncertainty, it should be no surprise that some will decide “better safe than sorry”. I don’t fault Virgin for not doing so here (at least with regards to the validity of the copyright license), but this episode demonstrates the potential blowback if one doesn’t.

To mention another example, there’s been some discussion that minors under age 18 are not legally able to license their work (at least in some jurisdictions). What if one of the Virgin photos was snapped by a 16-year-old – with litigious parents? In this case, regardless of whether the licensor understood the license, it would be invalid. Not a situation the downstream user wants to be in!

So assuming the license is valid, does CC “adequately educate and warn … of the meaning of commercial use and the ramifications and effects of entering into a license allowing such use”? This issue is slippery, because it seems any argument that “it’s right there in the license terms” is similarly an argument in favor of shrink-wrap and click-through licenses. But in a word: Yes. There is certainly some debate over what exactly is a commercial use under the CC licenses, but Virgin’s use is undebatably commercial. I can’t fathom how anyone, when presented with a choice to “allow commercial uses”, wouldn’t consider commercial advertising to be a use they were allowing under the license.

What about the right of privacy, which the photograph’s subject claims was violated? The CC licenses make no claim regarding that right, or any outside of copyright (unless moral rights and the DMCA’s access rights are considered outside of copyright). Neither Virgin nor the photographer should have expected the license to grant or waive those rights.

But enough of the defense. Is there anything CC could do better, to ward off these problems in the future? Here are a few suggestions:

On the “Things to Think About” page, add a point about rights other than copyright. Be clear that the right to use the copyright in certain ways does not invalidate any claims about privacy, publicity, defamation, trade secrets… there’s a lot that could be entangled here.
In the license chooser, after an individual has selected which rights they wish to grant, the user is brought to a page that says “Here is the license you’ve chosen”. This would be a very appropriate time to reiterate the terms of the license chosen, either by displaying the human readable license inline or (preferably) by displaying a shorter summary oriented to the author. e.g. “You waive your right to prevent or control commercial uses of this work, including the right to be compensated for any commercial use.” The page could also say, “If this isn’t what you intended, go back and pick a different license, or click here to learn more about our licenses.”
In the human-readable license summary, along with the disclaimer that the license doesn’t affect the user’s fair use or fair dealing rights, add a disclaimer that says “This license only applies to copyright in the work and not to any other rights.” This could also be a time to point toward what’s not protected by any right: e.g. “This license only applies to copyright in the work, insofar as it exists, and not to any other rights.” This might make it clearer to the user that non-copyrightable material, such as ideas, concepts, facts, and works which have passed into the public domain cannot acquire any additional restrictions under a CC license.
Add a disclaimer in the lawyer-readable license to state, in legal terms, the above.
Since this subject is recently in the news, post a brief summary or FAQ on the CC blog reiterating points like “What is a commercial use?” and “What other legal issues might be entangled in a copyrighted work?” This might also be a good time to address the question “How can I protect myself against getting burned by using an apparently CC-licensed work?”

Finally, two discussion questions about the suit:

Why isn’t Flickr (Yahoo) named as a defendant? If CC “failed to adequately educate and warn”, surely Flickr’s license chooser is at least as liable. I don’t think either should be liable, but you’d think the lawyer would file against the deep pockets rather than the non-profit.
Having established that CC is a non-profit and therefore doesn’t have a lot of money, what are the plaintiffs hoping to achieve? If it’s remuneration, they’re barking up the wrong tree at best, or viciously mean-spirited at worst. If it’s punitive, that’s rather harsh. If they just want to force CC to change its practices, why file the suit — why not just raise the issue with the community? I expect you’d get equally good results: there might be a bit less urgency, but there also wouldn’t be the animosity a lawsuit naturally stirs up.

Although I don’t think CC is at fault here, it is important to act. For the ecology of CC-licensed works which permit commercial use, that use is important. It’s important to have clarity, good information, and certainty when using licensed works. Without improvements here, CC licenses may be a valuable tool in the sharing economy, but they’ll be unable to realize their full value for the commercial economy.

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Funder mandates and open access: states and universities

Posted on 15 September 2007
Filed under Open access
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A lot of the momentum propelling the open access movement recently has come from self-archiving mandates from public funders of research – specifically, national-level government entities. Green funder mandates are easy to rally around, and very satisfying when they pass. It’s easy to see why: national agencies are among the largest research funders, impacting thousands of articles published annually.

Authors depend on the agencies’ research dollars. Conditioning recourse to those funds on self-archiving the resulting articles creates a highly visible, direct incentive to provide OA. In addition to their effectiveness, green mandates are also low-hanging fruit: public funding bolsters the public interest argument for OA, and green OA is pereceived as less threatening by established commercial publishers (than gold), tempering objections to the policy.

But national agencies are not the only public funders of academic research, at least in the U.S. State and local governments also fund research, as do academic institutions themselves. The dollar figures amount to far less, but the principles are the same; the public access argument applies equally. (Admittedly, some of the institutional funds are from private institutions, rather than public.)

R&D Expenditures: U.S., FY 2005
Total	$45.8b
Federal government	$29.2b
State and local government	$2.9b
Industry	$2.3b
Institutional funds	$8.3b
All other sources	$3.1b
Source: NSF, 2007

There’s one benefit of national funder mandates that doesn’t apply to state or institutional funder mandates: scale. How much should scale matter to OA supporters? Priorities are certainly a concern: you want the most bang for your buck, so to speak. On the other hand, scale is independent of principle. If OA advocates are sincere when they speak of OA as an extension of public investment in science, it doesn’t matter whether the fund manager is in Washington or Tallahassee: either way, the investors want to maximize their return.
Read more

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wget logs are big

Posted on 13 September 2007
Filed under Linux
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I had reason to download a large number of Web pages recursively, for reasons I’ll explain later. To make it work correctly required a lot of trial and error, and so to better understand what was happening, I started running:

wget --debug -o log

which operates wget in verbose mode and logs the output to a file (in this case, named log).

Eventually (with some help), I hit upon the right command to execute. It ran for a very long time (more than 24 hours) and eventually finished.

Size of all files downloaded: 551M
Size of the wget log: 528M

In other words, for every 1 bit downloaded, wget wrote (almost) 1 bit of log.

When they say “verbose”, they’re not fooling.

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Opening education

Posted on 7 September 2007
Filed under Class, Fall 2007, Open education
2 comments

I’m taking David Wiley’s Introduction to Open Education class at Utah State University this semester.

“But Gavin, didn’t you graduate?” Sure I did. But you’re never too old to learn, and when it comes to open education, I’ve got of learning to do. I could probably teach a class on, say, FOSS or open access, but I’ll admit I’d never heard of open education until the iCommons Summit this year. I’d heard of OpenCourseWare, and of course I’m familiar with many of the concepts, but there’s still much more I want to know.

Open education holds tremendous promise. It speaks to much of my platform when I was a candidate for Student Senate at the University of Florida. My vision of the university is an institution dedicated to creating and sharing knowledge, with a relentless drive to best fulfill that mission. Open education is squarely in line with that vision. But it’s more than that, too. I really don’t know much about what open education will mean for middle school students or for educators. I want to know, so I can help put that knowledge into action.

I’m not taking the class for credit, but by participating, I ensure that David Wiley reads my blog once a week (heh).

I look forward to interacting with the other students in the class, and look forward to a rewarding experience.

For my classmates: You can find my posts for the class here, or get the RSS feed if you prefer. (You are also more than welcome to visit the rest of my site, as well.)

P.S. I’m a week late joining the class, but I’ll start with this week’s assignment to be on schedule, and backtrack to Week 1 when I have time.

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WHO’s journal has backwards approach to open access

Posted on 4 September 2007
Filed under Open access
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The World Health Organization, an agency of the United Nations, is ostensibly an organization dedicated to the public interest. The fourth point of the WHO agenda is “harnessing research, information and evidence”. In support of these goals, the agency publishes a scientific journal, the Bulletin of the World Health Organization. In their own words:

Since it was first published in 1948, the Bulletin has become one of the world’s leading public health journals. … [The Bulletin is] the flagship periodical of the World Health Organization…
(from “About the Bulletin”)

The Bulletin is no scientific backwater; it’s a relatively influential journal:

Eigenfactor: Ranks 14th out of 119 journals in the field (2005)
Article Influence: Ranks 11th by out of 119 journals in the field (2005)
Impact factor: Ranks 6th out of 89 journals in the field (2006 – Journal Citation Reports)

As the publication of an organization dedicated to advancing human health, the Bulletin should strive for the widest-possible distribution of its articles, and facilitate any responsible scientific re-use of its contents. Since the WHO is a UN agency, every citizen of a UN member state (i.e. almost everyone on Earth) has an interest here. Especially given the consequence of the subject matter, the WHO has a responsibility to make every effort to support education and the advancement of science.

After some investigation, my verdict is: close, but no cigar.

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