Copyright law would be easy if it wasn't for all the damn creativity

James Grimmelmann, an always excellent writer and thinker on copyright, has written an article on computer-authored works, which you should totally read. (I'll wait....)

Broadly speaking, I’m in agreement with Grimmelmann’s argument, which is pretty well summed up in his opening sentences: “Copyright law doesn’t recognize computer programs as authors, and it shouldn’t. Some day it might make sense to, but if that day ever comes, copyright will be the least of our concerns.” The problem is, artists can and do very deliberately attempt to give computers creative agency, challenging the very notion of human creativity—and Grimmelmann's examples don't fully reckon with this. I'll quibble with a few things along the way, but the important thing is to consider a more challenging case: George Lewis’s computer program Voyager.

Briefly, Grimmelmann considers (and rejects) four possible circumstances under which computers might plausibly be considered to “create” a work: digital copies, digital works, algorithmic creation, sequential creation, and random creation.” Three of these (digital copies, digital works, and sequential creation) he correctly treats as trivial use of computers as tools for human creativity. It is in his consideration of algorithmic creation and random creation that his analysis does not cut deep enough.

First, it’s necessary to collapse a few distinctions and clarify a few understandings: an algorithm is a set of instructions, but it is not (necessarily) “a process whose steps are completely explicit.”[7] That’s not a bad description of a computer program, but an algorithm can be much more flexible. It’s trite but instructive to think of algorithms as recipes: in ingredients (“5 apples”) algorithms can allow for a variety of inputs (imagine different varieties of apples, for example). This, crucially, allows for unexpected results from algorithmic execution.

Secondly, “randomness” is not an accurate category for discussion of computer-created works. Randomness indicates either a deterministic process occurring at a scale too fine to measure, or a provably random process like radioactive decay, where the distribution of discrete events can be probabilistically predicted over time, but within any given timeframe their occurrence or non-occurrence is unpredictable (cite: I asked a physicist!). As computer scientists know, although we’re working on randomness generators, basically the best we can get at this point is pseudorandomness. It’s important to note that randomness is “unknowable in advance ... uncorrelated with anything in the universe”—in a word, unpredictable. Unpredictability combined with utility or delight edges awfully close to a “spark of creativity,” especially when a system is designed specifically to maximize the freedom in which an algorithm operates.

As a partial aside, how randomness is programmed is essential to considering the role of creative agency. Sonic Pi, a popular environment for programming music both for recording and live-coding, will by default deliver the same set of “random” numbers each time a programmer calls a script with the command “rrand” the same pseudorandom sequence will be delivered (to be processed by other commands into notes, rhythms, or other attributes). As a performer or composer, one can learn to “play” the randomness—gaining control over its idiosyncracies like any other attribute of one’s instrument or medium.

It may also be worth noting that a sonic pi script is “in fixed form” as code or as a sound recording. This script will, unless it is modified, always produce this music, despite containing calls for randomness (in this case “choose” commands). Obviously this is an extremely trivial view of “randomness”—it’s only surprising the first time it’s produced—and the computer’s pseudorandomness should be viewed as an adjunct to the creativity of the user.

John Cage’s aleatory music (which is treated as a test-case for random creation) is closer to “randomly generated” but Cage aimed to reduce the role of the composer, not to increase the creativity of a process. As he wrote:

And what is the purpose of writing music? One is, of course, not dealing with purposes but dealing with sounds. Or the answer must take the form of a paradox: a purposeful purposelessness or purposeless play. This play, however, is an affirmation of life—not an attempt to bring order out of chaos nor to suggest improvements in creation, but simply a way of waking up to the very life we’re living, which is so excellent when one gets one’s mind and one’s desires out of the way and lets it act of its own accord. (John Cage, Silence, Hanover, NH: Wesleyan University Press, 1973, p. 12)

Cage’s copyrights are full of contradictions and ironies (and Cage himself relished these ironies more than the law does), but there is a more apposite model for Grimmelmann to probe: George Lewis’s Voyager. In Lewis's own words:

My analysis of Voyager as an interactive computer music system uses Robert Rowe's taxonomy of "player" and "instrument" paradigms, although these two models of role construction in interactive systems should be viewed as on a continuum along which a particular system's model of computer-human interaction can be located. In Rowe's terms, Voyager functions as an extreme example of a "player" program, where the computer system does not function as an instrument to be controlled by a performer.
I conceive a performance of Voyager as multiple parallel streams of music generation, emanating from both the computers and the humans--a nonhierarchical, improvisational, subject-subject model of discourse, rather than a stimulus/response setup.

Lewis’s explicit aim in creating Voyager was to create an equal agent in composition. In doing so, he problematizes the notion of creativity when it comes to copyright. This radical re-envisioning of agency itself is key to considering computer authorship. If the creators of a computer program intend for the program itself to be creative, that must be reckoned with.

But law aims to create understandable categories, and art aims (among other things) to challenge our categories. It's an eternal (if usually friendly) struggle. 

Big changes afoot

I'm about to start work at O'Reilly Media, as an editor in the arena of data science. And while it may seem a bit odd that a background in ancient intellectual history has landed me in a job working on one of the sharpest--and most significant--leading edges in technology, I'll point out first that taking the long view always pays off in the end, and second, that one of my interviews consisted mostly of talking about Homer.

It has been an unending series of pleasures to work at the University of Chicago Press for the past dozen years, and the wisdom I've gathered from Doug Mitchell is only dwarfed by the wisdom he's demonstrated and I've been too saturated to absorb. I've been honored to work with the brilliant and creative people I've met over my tenure at the Press and I'm looking forward to keeping up the relationships (and discussions--and bike rides, and all sorts of other gatherings) we've begun. 

But occasionally an opportunity comes along that's too good to ignore, and this is certainly the case here. I will be shifting from one set of methods for understanding the world to a completely different set, and this is incredibly exciting. It's equally exciting to move from the leader in one area of publishing to the leader in another. 

On a practical level; I'll continue to work in Chicago, now from home, and my contact info remains the same. 

On Public Intellectualism, and Vertical and Horizontal Divides

When somebody walks into a perfectly nice room full of people and takes a shit on the floor, everybody reacts. Somebody checks on the defecator to see why this happened, somebody opens the windows to let the air in, somebody else gets a mop and a bucket, some extraordinarily well-composed characters carry on, pretending that it didn’t happen. But a lot of things are revealed in that moment.

This week’s room-shitter is Nicholas Kristof, who wrote a column whinging about how academics are keeping their valuable knowledge locked up, or only developing useless knowledge, or… well, it’s not exactly clear what he’s arguing, since those two arguments are in fact diametrically opposed. The column was, as mentioned, a turd. But it got lots of responses, spurred the whole room to action, in fact. (I here abandon the metaphor, you’ll be happy to know.) There were a great number of academic responses pretty much tearing Kristof’s premises to shreds, but Matt Houlbrook  and Corey Robin homed right in on the position of the academic in the contemporary economy: 

• Quoth Corey: The problem here isn’t that typically American conceit of “culture” v. nonconformist rebel. It’s the very material pressures and constraints young academics face, long before tenure. It’s the job market.  It’s the rise of adjuncts. It’s neoliberalism. Jacoby understood the material sources of the problem he diagnosed. Kristof doesn’t.

• And Matt: If only it was that easy. Here is the problem that Schama misses: engaging with an audience beyond the academy often (but by no means always) means participating in a market in knowledge-as-entertainment. And like all neoliberal capitalist markets this one is profoundly unequal. We do not have the same resources to draw upon when we participate it; not do we have equal access to the mediating institutions and networks that control access to that market.

As an academic publisher (as Matt’s publisher, no less!) I get just a wee bit defensive about hints of exploiting the labor of academics. A couple of points, therefore, seemed in order with respect to the structures in which academic work gets put out to the world—and what I see as the issues separating knowledge-makers from society. And, to be fair to Kristof, this separation is a better summary of the problem that he's trying to articulate, but to be fair to his critics, one common thread among those respondents is that it bridging that divide is something that many academics are trying to do. But publishers, whose very mission is the dissemination of knowledge, have been (from what I’ve seen, and I think I’m pretty plugged-in) absent from the discussion. 

One of Robin’s arguments is that Kristof is a symptom: someone who is as well-informed as he is should in fact be more familiar with the many publicly engaged academics out there. But this is a symptom of a serious problem, what I refer to as the "middle of the market falling out.”* There are a very few well-known (and well-compensated) public intellectuals, and a great many blogging along wonderfully but not making any money or fame or reward beyond the approval of their audience. This is not just a problem for that latter category of writers, but for the quality of our public argument as well. 

It is totally fair to say that publishers need to to a better job. Academic institutions (departments and societies) see academic publishers as part of the peer-review and promotion process,** not as outward-facing institutions who bring knowledge to the public. The movement toward Open-Access requirements on the part of funders assumes  that the important work of academic publishers is peer review; once something is vetted and ready to go, it should be given away free. A noble aspiration, indeed, and publishers wonder “how are we to survive in this environment? Where will we get funded? How do we justify what we do, so that people will continue to pay us to do it?” And so we talk about what we do—you can just go through the departments of a press: acquisitions, manuscript editing, design, production, marketing, sales, royalties payment—but we don’t talk about the importance of the market itself. 

Peer review is a judicial model; it is very explicitly posing a yes-or-no question (to publish or not) to a jury of one’s peers. And that provides a valuable type of information, as well as one particular kind of equality. However, it is a dangerous naiveté to suppose that a judicial system provides some form of unalloyed truth, still less of worth (of persons, in the case of the justice system; of ideas, in the case of the university). 

And this is where the market itself comes in. It also provides valuable information***—and (here’s where I part most from Robin and Matt) a valuable kind of equality. The market doesn’t merely fill the role of rewarding better ideas with cash, although publishers' very dependence on sales provides a necessary gut-check on the limits of peer review. 

The equality that the market brings to academia is that consumers of ideas are equal: the $29 that a professor pays for a book means precisely as much to us as the $29 that an interested undergraduate pays, or the $29 of a fringe theorist, or—to bring us full circle—the person watching a TV show about World War I, who shows up at a bookstore (or, more likely, at Amazon) saying, "Hey, I’d like to learn more about life on the Home Front.” 

This delicate balance between judicial and market models is in peril—like the status of public intellectuals, books, too, are developing a bimodal distribution on the price and circulation axes. Too many publishers’ catalogs have affordable trade books up front, and $100+ academic books at the back, with the middle range sparse or nonexistent.**** (I’m proud to say that we are holding out against this trend, and doing our damnedest to keep our books under $40. ... Ok, well, $50.) 

One can only fault publishers so much; the sales data indicate that we only lose a few sales when we raise prices on an academic book, but the problem is who those marginal cases are: they are precisely the interested non-academic reader. The person who is not buying a book because it is required for class, or because it must be cited in the next article to be written. In short, it is in that middle ground that good—and even great—public scholarship occurs. Yes, the marginal cases are few, but they make all the difference. 

I’d like to say, “bwahahaha! Look at those foolish other publishers, ceding this area to us!” but the fact is that we’re all operating in the same arena and the many pressures of competition (hey, I never said markets were perfect, just that they had virtues!) are pushing us all into a bifurcated catalog. We need a robust community of middle-range books and scholars in order to keep a healthy ecosystem of ideas—and one that bears fruit for citizens outside the academy. 

_________________

* I haven’t yet read Tyler Cowen’s Average Is Over but from his summaries of and nods to it, I think there are many institutional parallels to the argument he’s making about employment and skills. 

**As I pointed out in the kerfuffle over the American Historical Association’s statement on Open Access, the most embarrassing part of their statement was that one of the cnetral goals of the historical profession is the acquisition of a publishing contract—an awful confusion over means and ends. 

***I have to tip the hat here to Natalia Cecire, whose slide deck on "Distributed Knowledge and the Digital" is (cheekily) full of Hayek. 

****Worse, though, is seeing a book supposedly intended for a general audience with a price tag of $150. 

How to prevent a suicide

Note: I wrote this letter to my friend Greg, a veteran of Iraq and Afghanistan. Any of us might know someone at risk of suicide, though, and there are a fistful of things you can know which might help you both through that situation. 

Greg,

It feels weird to be offering—no, imposing on you with—advice, but helping people not commit suicide is one of the few life-and-death matters I have some experience in. I’ve spent a few nights literally wrestling with people who were trying to kill themselves (trying to bash their heads on stone, or throw themselves out windows, or—and this sounds absurd now, but he was sincerely trying—to drown himself in a toilet), and probably a dozen or more nights just talking with people to try to avoid that crisis moment. And now that I’m no longer in the midst of a big at-risk population (college students) and you are (combat veterans, and people with guns), I’m going to pass on some knowledge. This is stuff I was trained on and stuff that I’ve put into practice. The Army has a 94-page pamphlet on this, but there are four things you can know and do that save lives. Please, share it forward. The odds are horrifyingly high that you or someone you know will need this.

1: Suicide delayed is suicide prevented. This is hugely important to remember. You’re not going to solve a guy’s problems by talking to him. He’s not going to solve his problems talking to you. That’s ok. Suicide survivors by an overwhelming majority agree that the crisis they were in was temporary, and it is a minority of suicide survivors who even attempt again. Prevent an impulsive and irretrievable decision:
2: Hold onto their guns. It may well be true that the only thing that stops a bad guy with a gun is a good guy with a gun, but it is definitely true that good guys with guns far too often stop themselves. Offer to do this—ok, beg, plead, cajole, if you want to help. You’re not confiscating the things; you’re holding on to them so your buddy doesn’t do anything rash. Also, remember, your pro-gun credentials are solid—you can (and for god’s sake you’re saving somebody’s life—you should) lean on this to remind people that you are ready to give them back. This is really hard, therefore:
3: Prepare and practice. Tell your friends ahead of time, “If I’m ever in a bad way, I want you to hold onto my guns, and I hope you’ll do the same for me.” And practice—say this stuff out loud, it’s not easy—saying, “Joe, I’m worried about you. I can hold onto your guns this week. If you want to go hunting give me a call.” Practice saying to someone—literally, say the words out loud, “Are you thinking of hurting yourself?” This is hard stuff.
4: It’s okay that you’re not a professional. You don’t need to be a psychiatrist to help your buddy. Unless you’re dealing with somebody who’s literally standing on a ledge, or pointing a gun at himself, then anything you can say or do with that person will help. So talk, spend time with the guy, go to the movies, go to the gym, go for food, go for coffee, rake leaves, mow the lawn, build a deck… what the fuck ever. Just spend time together.Thelma and I spent two weeks basically bringing a friend along anytime we were going out, and half the time when we were home. We weren’t talking all the time, we weren’t trying to solve the problems or talk through them, we were all just being there.

You’ve dealt with more serious shit than I can imagine; you’ve got the strength and the standing with your friends to handle this. And it’s something that you can be prepared for.

Tim

How academic ebooks will happen

My kids both have iPads now (and this post is not about how they're growing up "digital natives"—it's much more practical than that). Theirs are a few generations old, hand-me-downs from an aunt and a friend of ours. We have other friends who are already eager to get the latest models and pass on their old ones (and, to be honest, we're looking forward to getting these as hand-me-downs from them: thrice-outdated tablets).

All of which adds up to the increasing ubiquity of 7- and 10-inch screens in our lives. As a family of two adults, one reading child, and one pre-reading child, we now have two 10" tablets, one 7" tablet, and three e-ink readers. (I note here that of those, we've purchased only two of the e-readers—avid consumers will have even more.) And this erodes one of the biggest competitive advantages of paper books over e-books in an academic context: the computing power of a big desk.

When I was in graduate school, it was not uncommon for me to be working with a monograph or two open on my desk, a Greek text of Josephus or Philo, a translation of the same, a Septuagint, a Hebrew Bible, a commentary or two, a lexicon or two—and a computer on which I was taking notes or writing. Obviously, the first of these to go electronic were the lexica (flipping alphabetical pages is a nearly-unmitigated waste of time). Then—mostly when reading secondary literature—the ancient texts. Again, flipping for references, and checking text against text (Josephus's telling of a story, the Septuagint's rendering, and the Hebrew) are sped up by clickable text. But for delving deep into the texts themselves, the 15" screen of a laptop was too crowded.

It's well-known that bigger monitors increase productivity. Academics, however, already had bigger "monitors"—to wit, desktops, with two, or six, or ten books and journals and notepads and scraps of paper on them. You could (I did) physically print out a paper and cut it into sections, and rearrange those sections in order to see if the argument made more sense a different way, or if a section of the thing you were writing was weak on evidence.

The sheer number of screens in our daily lives, increasing by the year, makes ebooks vastly more practical for the way academics work, comparing and weighing sources (whether textual, visual, or artefactual). The next step, by the bye, will be apps to make multiple devices work together seemlessly.

The Full and True Account of Thursday

It all started Wednesday night; Dr. Fledermaus and I were working late at Bat Jr's school (Back to School night) and we were exhausted when we left. "We'll just take the car to get the kids," we agreed, "and pick up the bikes in the morning." [SFX: Cue ominous music.]

Thursday morning was as hectic as mornings ever are with a three-year-old and a seven-year-old; I was even more confused than usual: "Get your shoes and go to the back door!" I was saying, when Dr. Fledermaus reminded me that we were going out the front door, and walking to school, picking up the bikes, and then carrying on as usual. [SFX: Cue even more ominous music.]

Arriving at school, what did we find? Dr. Fledermaus's bike, my bike trailer...and a heavy duty chain and cut mini-U-lock on the ground.

The only response possible was rational. I numbly went through the list. Call police, file a report. Tell everyone: facebook, twitter, the bike forums, the stolen bike database. I thanked God, and my 2011 self for having registered the bike with the Chicago Police Department. The world was on notice. By the time I'd walked halfway to work, a friend was meeting me with a loaner bike.

Lunchtime. Enough mooning about the crappy summer. Three dead pets and a stolen bike--it was time to take fate into my own hands.You make your own luck. (Hah. So I told myself.) "Everyone knows," my internal monologue went on, "that stolen bikes show up at Swap-O-Rama."

The flea market. I don't know how many acres, but it's two and a half city blocks of stolen, grey-market, and otherwise dubiously capitalistic tools, stereo equipment, DVDs, socks, shampoo, dried beans, and, yes, bikes.... I walked the full grounds, singleminded in purpose: checking out every plausible bike..could it have been repainted in a morning? New decals put on? bar tape changed? Nothing. Kids bikes, BMX, road bikes, mountain bikes, single speeds. There was a yellow van I went by twice; it had two nice rides on the roof, but its open back doors were facing a concrete wall--could it be inside? A pickup truck pulled out, having closed up shop for the day, with at least fifteen close-packed bicycles in the back, held down (more or less) with clothesline. None looked like mine. I thought.

Eventually, I texted my wife to say, "Saw a bunch of stolen bikes, but not mine." I was taking a last mosey around, contemplating how many visits it would be worth making, but mostly looking for friends' recently stolen bikes, when I spied, past a pile of tools, toys, and electronics accessories,   a glint of silver and white in the back of a guy's dirty red van: There it was! I'd recognize that 1" head tube and silver brake lever from...well, 45 feet. I walked up and said, "That's my bike in your van. I'm going to need it back." He immediately started talking about "the guy who sold it to him" but I didn't listen. There was one thing I was there for, and that was in front of me. It was in my hands. I took it and got the hell out of there, never looked back.

When I got back to the car, I took a longer look. She'd been stripped of her pump, saddlebag, trailer hitch, SPD pedals, any reasonable dignity of handlebar angle, and one bottle cage, but she was mine again.

The past is unevenly distributed, too.

William Gibson famously said ("many times"), "The future is already here; it's just not very evenly distributed." What if we turn this around, and think about the past? "The past is still here; it's just not very evenly distributed." 

Traveling in Europe (as an American), it's easy to be jealous of the past, the overwhelming physicality of cathedrals and castles, ruins and walls, stone roads with thousand-year-old ruts. We need a Faulkner to remind us that we are saturated in the past, too (and a Woody Allen to remind us that Faulkner reminded us). Our past is in the stories we tell, and mistake, and repeat, and tell falsely, and misattribute, and misrepresent.

The great error, of course, is thinking that the past is gone. But the other (greater?) error is to have a crappy copy of the past. A cheap knockoff past, that looks, from one angle, and in a dim light, like the past. But it's beyond fake; it's a toy, a cardboard cutout that could never have worked.

Or worse, it's a working model, like a model railroad: it chugs along, clean and on-schedule and under control in its little world; but again, the past isn't that utopian memory. It's got an infinite number of moving parts, it doesn't run on some magical plug in outside the universe; it's coal fired and the coal has to be mined by dirty men and shoveled with dirty shovels and Jesus everything is dirty and your lungs are eventually dirty and you die.

But refusing to be bound by the past is one of the freedoms of America. And freedoms are never free ("Thank a serviceman" the bumper sticker goes on). Belle da Costa Greene passed for white, broke free of the centuries of being Black in America; she spent (incredibly well) vast sums of money collecting the best of the past for J.Pierpont Morgan, and never spoke to her father, Harvard-educated lawyer and diplomat Richard Greener.

Richard Greener lived at 5237 S. Ellis, a few blocks from where I sit  now. The apartment building he lived in was, evidently, home also to Ida Platt, admitted to the Illinois bar in 1894 as the first Black female lawyer in the state. She was making a living in 1910 passing as a white woman. In 1920, while Platt was still practicing, Violette Anderson became the (second!) first Black female lawyer in Illinois. While Richard Greener watched, Ida Platt gave up her place in history, for flourishing in the present, just as his daughter had. The past came and went and folded back over itself.

And the apartment building is gone, now, replaced by townhouses. The past cropped up a few miles away, in Englewood, though--unevenly distributed.