Re: The Politics of Media Distribution (Re: Press Action Hero of the Week

Dear David,

Thank you for your e-mail, as well as your offer to include me in your 
distribution list of the print copy of your magazine (which you made in 
a separate e-mail). It appears to me that this discussion goes beyond 
the issue of copyrights and dissemination of Works. It encompasses 
strategy and philosophy regarding a publishing endeavor. This is a 
discussion that I would welcome, though it will have to wait until next 
week as I have to focus my immediate attention on Swans. As to your 
kind offer to subscribe me to your print edition of your magazine, I 
thank you cordially and will respectfully pass the opportunity at this 
time. First, since your magazine is on-line, I do not need to get a print 
copy. I can read it on-line, thus save a few trees here and there -- and 
I can print it at y own leisure, if I so choose, thus waste a few trees 
here and there (!), or print only the article(s) of my own choosing. In 
addition, why would I want to read a magazine whose content, in its 
majority, I've already read elsewhere (Znet, LeftHook, etc.)? As said, 
this discussion goes beyond copyright issues. Anyway, allow me to 
respond quickly to your valuable comments. Please, see those 
comments in the text.

On 11 Feb 2004, at 23:12, you wrote:

> Gilles d'Aymery wrote:
> > Dear David (and Hello again Aaron),
> > 
> > Thank you for your e-mail. I think that we could have a constructive
> > exchange of views. First it would be useful if you could stop
> > inferring too much about what I do and what I think.
> 
> Let me start by saying, I have a tremendous amount of respect for the
> work being done at Swan's.  However, you are using copyright law to
> limit the ways in which Swan's content can be copied and distributed
> and I believe this is to the detriment of your publication.  It is out
> of respect for your work that I have taken issue with your copying
> policy.

Your respect is much appreciated. And it would be as appreciated if 
you could let me decide what I think (I am not in the "belief" business) 
is favorable or detrimental to the publishing of Swans Commentary. If 
I may suggest, without any intention of offending you, your attitude 
could be construed as being slightly arrogant, or at least a bit cavalier. 
You take upon yourself the right to judge what is *right* and 
*wrong.* You certainly may question my policies and views but I do 
not think you can decide whether they are correct or not. I do 
recognize that my policies may be an hindrance to your own 
publishing endeavors, or, more precisely, that my policies diverge 
from yours within the scope of your publishing endeavors, but that 
hindrance or divergence does not make my policies inherently or by 
essence *wrong.* This said, I am totally open to improving my 
policies so long as the resulting "improvement" is not detrimental to my 
work -- and again, if you do not mind, this is for me to decide upon 
careful considerations. (Note, if you will, that it is Swans with an s, not 
Swan...)

> > You do *not* know for a fact that the authors and I "are incorrect
> > in thinking they know how to control that use so as to maximize its
> > effect." Neither do I know. One thing I know, however, is that my
> > policy to control the use of the content has nothing to do with
> > maximizing its effect or its dissemination, if you will. So, right
> > there you are basing your opinion, or opiniated judgement, on a
> > false premise.
> 
> Yes, I misstated this.  I should have said, "it *would be* incorrect
> for the publishers and author's of Swan's to think that they know how
> to control that use so as to maximize its effect."

Good. So we agree. As said I do not know either. It's a strategy I 
have chosen to follow, upon a series of considerations. I do not doubt 
for a moment that such a strategy can be changed and improved. It 
will.

> > You go further and assert that I am ignorant of the free software
> > movement and that I misread your comments. I happen to be quite
> > aware of the free software movement (since the late '80s) and of the
> > various *free* licences out there, some of which you included links.
> > I fear that you are too focused on that *specific* isssue -- that of
> > software -- and in doing so you may well be comparing apples and
> > oranges.
> 
> You characterized my argument as wanting to appropriate the work of
> Swan's as my own and without attribution.  This couldn't be farther
> from the truth.  It is also inconsistent with many Free licenses,
> including the two I mentioned the Academic Free License and the
> Creative Commons Attribution license. Neither of these licenses are
> software specific but apply to general works of authorship, I might
> add.

I did not mean to impugn your character. If you felt such, please 
excuse me. I do take exception however to people -- any people, not 
just you (that's why my former comments were not directed *against* 
you; I would rather not personalize a debate) -- using Swans' Work in 
a way that they consider fit their own criteria and frame of references. 
That's why I do have questions about the *free license* "movement."
 
> > Allow me to answer your points, a), b) c) d) and e)
> 
> These are not my points.  These are the rights granted by the Academic
> Free license.
> 
>    http://opensource.org/licenses/afl-2.0.php

I hear you. Sorry, I read them as coming from you. Still, it does not 
change my argumentation.

> > a) To reproduce work in copies.
> > 
> > Certainly. I actually encourage this endeavor. Print as many copies
> > as you wish and hand them over to your friends and neighbors. Do not
> > hesitate to have any Swans' Work published in your local newspapers
> > or university magazines. You can even have any of them published in
> > the New York Times (I will owe you big time!). There is only a
> > couple of conditions. The Work *cannot* be changed and Swans must be
> > acknowledged, including its URL. Note however that this
> > encouragement does not include electronic dissemination through,
> > particularly, the Web, and to a lesser degree of importance, e-mail
> > distribution lists (I also have a particular revulsion for personal,
> > self- centered blogs). In short, say ballistichelmet.org has a print
> > edition, you are most welcome to use any Work from Swans but you are
> > prohibited to republish any Work from Swans on your Web site (there,
> > you can, if you so choose, include a paragraph or a short synopsis
> > of the Work and point to its URL).
> 
> Ballistic Helmet does have a print edition, however we offer it both
> electronically and physically.  We won't be able to print anything
> from Swan's because our electronic edition will violate your copying
> policy and it is unreasonable for us to change our production system
> to accommodate Swan's. This would be true for the New York Times as
> well as they offer their paper online.  This is too bad, your
> copyright policy is preventing the good work of Swan's from getting to
> potential readers.

This is a trade-off that I have thoughfully considered and accepted. 
Note also that I am not asking and have not asked *you* to change 
your policies... Now, let's be a bit practical here. When, for instance 
(and this is a factual instance) Znet would post a Swans' Work on its 
site, I would get around 30 or 40 referrers to Swans (people who 
would visit Swans from the attributing link). However, when 
CounterPunch put a direct link to a specific URL on Swans, I get 
over 1,000 referrers. I chose to pass on the 30 or 40 referrers. They 
are unsignificant for the development of Swans.

> You could on the other hand, release the work under one of the Free
> Licenses I've mentioned.  Both the licenses I've mentioned would
> protect Swan's work from being claimed as anyone else's.  Both the
> licenses I've mentioned allow for derivative works, but you could
> certainly disallow this specifically.  The Creative Commons NoDerivs
> license does just this.
> 
>    http://creativecommons.org/licenses/by-nd/1.0/

Yes, this is something that I will consider in due time. My thinking is to 
have some kind of carefully crafted open license after a reasonable 
amount of time has passed (something like 60 days or so). As I said, I 
am not particularly satisfied with my current policies albeit they have 
served my purposes well, notwitstanding your objections to them. I 
just need time to refine my approach. This will come.

> This would permit verbatim copies, complete with a copyright notice
> and link to Swan's.  Yes, personal, self-centered blogs could publish
> Swan's content verbatim, but I think there is a significant benefit
> that outweighs any possible harm from blogs reprinting Swan's content.

Yes, and this is a practical consequence that I strongly question and 
that has hindered my efforts to improve my policies. The issue of multi-
posting on the Web is very much on my mind. (See further below.)

> > b) To prepare derivative works based upon the Original Work.
> > 
> > This looks to me as a software-centric requirement, but, even in the
> > writing world, this is acceptable and has been done for ages. It's
> > called *quoting* part of a Work with full attribution to the author
> > of the Work. I see no problem here. As said, this has been done for
> > ages.
> > 
> > c) To distribute copies of the Original and Derivative Works to the
> > public.
> > 
> > Here you are both vague and all over the place. My answer to your
> > point a) should take care of your first proposition. And we need to
> > explore a bit more what you mean by derivatives work. If you mean,
> > re-writing the Work as you so please, forget it (except as a case
> > study in which you quote the original Work and offer an alternative
> > writing --
> >  but here again we fall within the quote-unquote concept that has
> >  been 
> > used for ages).
> 
> As to vague and all over the place, again, these are not my words:
> it's the language of copyright law that is vague.  Derivative work is
> an open concept.

Again, I read these points as cominf from you. The origin of these 
utterances is not essential to the debate and my argumentation stands. 
Open concepts are subject to many considerations, are in flux if you 
will, and therefore need careful attention and the passage of time. This 
is not an either-or issue.

> > d) To perform the Original Work publicly.
> > 
> > Another example of vagueness. Perform publicly? Where, how? How do
> > you "perform" an essay "publicly?"  A public reading in your town's
> > square, in your local theater, in your dwelling? Sure, go ahead,
> > read the entire 10+ volumes of Marx's Capital to your heart and
> > breath contentment. And do the same with any of Swans' Work. Now, if
> > you mean, electronic performance, especially on the Web, forget it.
> 
> What about an audio recording of a reading?  What if that recording is
> online?
>  What if I transcribe Swan's content into a format that can be read
>  aloud for
> the blind?  What if I put that online?

These are fair questions. Allow me to respond to each of them:

An audio recording of a reading: No problem. Simply ask and you 
will be granted permission. No problem either putting it on-line since it 
would be a different format (spoken vs. written word)s, though I 
would want a say on the location, e.g., I would deny permission to a 
site that I consider potentially detrimental to Swans. Here is an 
example: Say, a virulent anti-Semitic, revisionist site or a fundametalist 
right-wing site would not be granted authorization.

To transcribe a Swans' Work for the benefit of people with disabilities 
would simply be a waste of time and a duplication of work. Swans' 
HTML conforms to the W3C recommendations. I have actually 
worked with a blind individual to make sure that Swans is accessible 
to voice transcribers and braille. Again. Lots of thinking and work has 
taken place in the past 8 years or so.

> There are many channels electronic or otherwise that could carry
> Swan's and I don't understand why you wouldn't want Swan's to be as
> accessible as possible.

Swans is as accessible as possible. It cannot be more accessible than 
it is -- fully open to the world. Simply enter its URL in your browser --
 any browser by the way from Linx all the way back to good old 
Netscape 2.0). I fail to understand how an open license would make 
it more accessible!

>  A Free license would allow you to protect your rights while ensuring
>  this accessibility.

Again I fail to understand how an open or "free" license would ensure 
or enhance accessibility to Swans. What you are talking about is not 
accessibility, it's the use of Swans' work by third parties to their own 
ends. That's really what your argumentation is about -- the use of 
Swans' Work...

> Why is it that if it's the Web, forget it?

....and this is the crux of the matter, David. As you may by now have 
understood, this is what I am most concerned with. I, simply and 
staightfully put, do not want to see Swans' Work multi-posted on the 
Web. I cannot emphasize this *more strongly.* Unfortunately, I do 
not have the time today to present to you the extent of my reasoning 
here. Just one reason will suffice for today: All of Swans' Work is 
accessible on the Web. There is no valid rationale to multi-post it 
when a simple link to the URL of any of Swans' Work will direct the 
user to the content. But again, what you are talking about is not 
pointing users to Swans' content, you are talking about using Swans' 
content to your own ends and you are advancing, like so many do, 
under the disguise, intentionally or more probably subconsciously and 
with good intent (again like so many do) of "accessibility" and 
"dissemination."  But the Work is fully accessible and to disseminate it 
on the Web is a simple matter of pointing to its URL. No need to 
reproduce it, isn't it?

> > e) To display the Original Work publicly.
> > 
> > And here again, sheer vagueness... How do you display Mona Lisa? By
> > puting a pic on your site, printing copies of the pic and
> > distributing it to your "neighbors?" When It's already on the Web
> > site of the Louvre Museum? How do you display the US Constitution in
> > public? 
> 
> I'm not following this at all.

Well, the Original Work is *already* publicly displayed, isn't it?

> > How do you display the Work of a personal individual who may very
> > well not be interested in being "displayed". How do you display
> > *Madam Butterfly,* if you are an opera buff (and, btw, how do you
> > improve on it)? In short, same as c) above...
> 
> Obviously a person who is not interested in having their work
> displayed should not release their work under a Free license.  I would
> assume they also wouldn't publish their work on Swan's, or anywhere
> for that matter.

Incorrect premise. The work *is* publicly displayed. What I am 
talking about here, is that an individual may decide that one public 
display is enough and that he or she does not want it to be further 
displayed elsewhere. It just happens that authors who volunteerely 
offer their work to Swans understands my point. The proof is in the 
pudding as the saying goes. Once more, assumptions can lead to poor 
conclusions....
 
> > I happen to dislike copyrights, yet was forced to use these laws by
> > circumstances. People where *stealing* and *scavenging* Swans' Work
> > (some of those people, I truly did not want any association). Pieces
> > were republished on the Web without even an acknowledgement to their
> > origin. Bigger sites would repost our work, acknowledge us in tiny
> > print and we would get no or little visits originating from their
> > sites (in another word, they took advantage of Swans' work to
> > advance their own interests). I've had pieces reproduced under a
> > different name. I've had pieces reproduced without the accompanying
> > notes. I've had pieces edited and then reproduced without alerting
> > the audience to the edits. And I can go on, and on.
> 
> All of these things would violate the licenses I am suggesting, just
> as they violate your current license, so I don't see how this is an
> argument against Free licenses.

Here, you need to deal with the psychology of people and understand 
people's actions and reactions to "free" licensing versus copyrights 
laws.

> BTW, Google is in serious violation of your copying policy:
> 
> http://216.239.41.104/search?q=cache:hng_HiblzqMJ:www.swans.com/librar
> y/art10/iraq/+swans.com+resistance+in+the+eye+of+the+american&hl=en&ie
> =UTF-8

Yes, Google is a major predator...though in this case they only, put 
the front page of the Special Issue and they included the link to the 
correct URL on Swans (both on the pic and on the "NEXT" link). 
They are predators but they also have a legal team and understand 
copyrights laws and what they can get away with!

> > In all instances, this was done by US based individuals and Web
> > sites. I got tired of this trademark -- US dismal intellectual
> > integrity (sorry...). The funny thing is that the only people who
> > have a problem with my policy are, guess what, US based. And even
> > funnier, the only people who are afraid of a call from an attorney
> > are, guess what again, Americans.
> > 
> > It works, thank you.
> 
> You could certainly seek legal recourse for any of these violations
> according to the licenses I've mentioned.

I sure could but it would take much more efforts on my part. THese 
"free" licenses do not have much jurisprudence attached to them yet. 
Copyrights do.

> > Meanwhile, I am developping Swans from scratch and we do have 
> > 20,000 visitors a day here and then. In 1996 we had 2 or 3 a day. No
> > one is paid. Not even me. No one asks for money and we do not even
> > highlight this simple fact as you do so blatantly (in fairness, I
> > will in the short future ask for financial help. But it will be for
> > updating computers, software, and Web/e-mail hosting, not for
> > personal profit - - and I will put those costs and amounts raised
> > right up there on the site).
> 
> You've pointed this out twice now, so I feel obligated to respond.  No
> one at Ballistic Helmet gets paid for the hard work they do either. 
> On the contrary, it has come at a significant and recurring cost to
> those that support Ballistic Helmet.  Likewise, we have developed our
> site "from scratch".  We are not so dissimilar in our endeavors.  Yes,
> we do say "nuthing for sale" on our website, only because nothing is.
> (I have trouble seeing how this is "blatantly" stated.)  Yes, we ask
> for donations, only because there is no other way to sustain the costs
> of producing Ballistic Helmet.  I might add we don't get nearly enough
> money in donations to cover the costs.  We offer our weekly print
> subscription for free, so the postage, paper, and ink has to come from
> somewhere.

You are correct in stating that we are not "so dissimilar in our 
[respective] endeavors," with two important, I'd say major 
distinctions. Swans publishes original work and doe not have a print 
issue. And we may have a different philosohical approach...

> > In conclusion, I'll be happy to have a sane and sound discusssion on
> > the various merits, so that maybe we can develop a better policy,
> > but I am reluctant to go on with phraseology, indictments, and
> > overall short, if not poor thinking.
> 
> Likewise.

I am obliged to you and Aaron for taking the time to dissuss these 
issues. I can only help us all.

> I believe that Swan's would benefit greatly from using either the
> Academic Free License or the Creative Commons license.  Perhaps you
> could respond specifically to your problems with those licenses.

I think and hope I have.

> > PS  When refering to my last name, the correct way is to write
> > *aymery* not *d'Aymery.* But then, correctness is an oblivious
> > concept... Just refer to me as Gilles d'Aymery. Thank you.
> 
> My apologies.  In my defense, this is the usage from the article that
> sparked this conversation in the first place:
> 
>    http://www.pressaction.com/pablog/archives/001288.html

No need to defend yourself... In some interesting way, it shows how 
relying on third party data, without checking or fact-checking it, may 
lead to repeating an incorrect fact...  No problem.

> David

Yours sincerely,
Gilles d'Aymery
Swans Commentary


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