Copyleft Trolls Are the Serpents in Our Garden of Ethical Sharing.
pilkun (“of a comma”) + nussija (“fucker”) (wiktionary.com)
As I processed yesterday’s news about Flickr updating its policies to prevent “copyleft trolls” from using its service to snare unsuspecting internet users and hit them for hundreds or thousands of dollars in “copyright settlement” fees, I began reflecting on why this phenomenon makes me so furious.
I’ve been blogging for more than 20 years. I’ve been an activist at the Electronic Frontier Foundation for more than 20 years, too. I’ve also been a Creative Commons user for more than 20 years. And I’ve been a novelist for more than 20 years.
In that time, I’ve fought a lot of unscrupulous internet bullying and fraud, from ransomware to Remote Access Trojans.
I was there when the FBI hauled a computer programmer away in handcuffs for daring to point out that Adobe lied when it said its products would reduce copyright infringement. I was there when the RIAA threatened a team led by a Princeton computer scientist with criminal and civil sanctions for describing the mathematical defects in its plans to watermark music.
I was there for the debate about whether it was a crime to disclose that scribbling on a CD with a magic marker would disable technology designed to control you.
I was there when a giant voting machine vendor used copyright threats to suppress a whistleblower memo that disclosed the unreliability of its technology and its unsuitability for use in elections.
These examples may come from the distant past, but copyright continues to be abused by powerful, terrible people and their Renfield enablers to suppress speech — take the “reputation management” companies that publish back-dated versions of exposés on their clients’ crimes — from rape and murder all the way up to war-crimes and genocide — then claim that the newspaper reports they duplicated infringe on their “original” articles, which gets these articles removed from search-engines, allowing their clients to outrun the crimes of their past and commit them anew.
These things are objectively worse than mere Copyleft Trolling, which is a grift so supremely stupid that it should be laughable. But here I am, filled with quiet, enduring fury about it.
Let me be clear: I want all of these abuses to die in a fire, and their perpetrators’ names to go down in history as the petty, slimy crooks that they are — but even so, I really hate Copyleft Trolls.
I should probably explain what a copyleft troll is, right?
All right, but to do that, I first have to explain Creative Commons licenses.
Creative Commons is a global nonprofit that produces standard copyright licenses to enable the legal sharing of copyrighted works.
Under laws derived from global copyright treaties (like the TRIPS, which sets out the copyright rules that every country in the WTO has to implement), a new copyright is created every time a human being (and only a human being: not a monkey, nor an algorithm) “fixes” a new creative work in a “tangible medium.”
That means that the instant you create a new work and set it down as magnetic traces on digital storage media, or as paint on a canvas, or as ink on a page, you get a copyright to it. That copyright endures for a very long time: in the USA, it lasts until you’ve been dead for 70 years, which means that the copyright on the nursery school drawings your kids make today might not expire until the year 2170, or even later.
Copyright didn’t always last that long, nor did it always automatically apply. If it had, the toddler scrawls of 1873 would just be entering the public domain this year.
What’s more, copyright infringement carries stiff penalties: if you violate the copyright of a work that’s been registered with the US Copyright Office, you’re liable for up to $150,000 in civil penalties, and if a public prosecutor gets involved, that’s another $250,000 in criminal fines. Under copyright law, infringing isn’t theft, it’s worse than theft, and the penalties for downloading a CD are far more harsh than the penalties for merely shoplifting it.
All of this came to a head in the early 2000s thanks to the Napster Wars. Napster was, at the time, the fastest-adopted technology in the history of the world. The peer-to-peer music sharing service had many advantages relative to CDs. The most obvious advantage was that Napster was free, while CDs cost $15–25.
But there were other advantages. When Napster started, 80 percent of the music recordings still in copyright were never released on CD, or had been released and then allowed to go out of print. Napster was full of this stuff, ripped from cassettes, vinyl, and out-of-print CDs. For superfans who had bought everything for sale by their favorite artists, Napster was a pipeline for going even deeper on the music you loved.
And for those superfans, Napster was a way to connect. Every track on Napster was hosted on another Napster user’s computer, and while you were downloading from those users, you could also chat them up.
I’ll never forget one night in a Boston hotel room, homesick for Toronto, when I fired up Napster to see if I could find any tracks by The Phantoms, a band I had paid to see dozens of times, whose every t-shirt and cassette I had bought, and whose music I couldn’t play back on my laptop because it hadn’t been released on CD for me to rip.
Only one other Napster user had any Phantoms tracks, painstakingly ripped from cassette, sliced into individual tracks, and labeled with metadata. As I downloaded those tracks, the person on the other end of that P2P connection opened a chat window and it turned out that they, too, were a Phantoms superfan, also living abroad.
We had been to many of the same shows, and over the course of hours, we eagerly recalled the highlights that had stuck in our memories. It didn’t matter that the internet connection between my computer and theirs was achingly slow, because the hours that it took to transfer the files flew by as we typed back and forth.
I never found that Napster user again, but I still have those tracks in my MP3 library (I just cued them up and they’re amazing), along with Phantoms frontman Jerome Godboo’s solo album, which is excellent and for sale at a very reasonable $10 on Bandcamp.
The Napster Wars were ugly. The corporations that stood between creators and their audiences declared themselves to be artists’ class allies, and condemned the fans as leeches and crooks. While some artists fell for this, others understood that the labels were no friends to starving artists, and that any money they wrung out of fans or P2P companies would be transferred to their shareholders, not their talent (which made sense from a record exec’s perspective — after all, they spent more than $16,000,000 in legal fees in order to extract less than $400,000 in settlements).
People hated the labels during the Napster Wars. The Big Four labels (now the Big Three) were voted the worst companies in the world. It turns out that suing 19,000 college kids, soccer moms, dead people and paralyzed people in comas is a bad PR move.
Record executives didn’t just shoot themselves in the foot, they shot themselves in the face, over and over again. They got (nominally) advanced democracies to pass laws that would permanently terminate your whole family’s internet connection if anyone in your household was accused of illegal downloading.
The argued that any service that allowed you to search for music by the artist’s name should be banned. They told people they were fools to expect to be able to buy digital tracks and play them forever, defending the idea that the music you buy should simply expire off your hard-drive in a couple of years. And when academics criticized them online, they tried to get them fired from their universities.
And more than anything, they sued music fans. They sued and sued and sued. At one point, one in fifty federal cases in the USA was a record company suing a fan. They weren’t just looking for money, either. The RIAA wanted to send a message — which is why they demanded that one of their targets drop out of his Computer Science major as a condition of the settlement: people like you shouldn’t learn how to program computers.
Enter Creative Commons. A group of creators and lawyers who’d watched the Napster Wars with increasing dismay decided that there needed to be a way to sue for peace in this foolish war.
After all, the problem with P2P was permission. The entertainment companies — and the creators who backed their play — argued that the decision to share and re-use should vest with the rightsholder, and not with a fan who unilaterally shared their work with another fan.
But granting permission is hard. The automatic nature of copyright, snapping into existence at the moment of fixation and lasting a century or more, is in stark contrast to the nature of copyleft, that is, granting permission for all comers to use your work.
Copyright is a highly abstract, extremely technical legal doctrine. The mere fact that I say, “I disclaim copyright in this work, go and use it as you see fit” is not necessarily a sufficient basis for you to act as though the plain meaning of that short declaration means what any sensible person thinks it means.
To write or read a copyright license, you really should hire a copyright lawyer, whose service will cost you hundreds of dollars per hour and whose opinion as to what the license confers will typically be hedged by numerous caveats and exceptions.
For a creator who wants their work shared, copyright is like one of those sleazy internet subscription offers that you sign up for with a couple of low-friction clicks, but which you can only get out of by spending an afternoon being wheedled over the phone by a customer service rep in a distant call-center.
Actually, it’s worse, because in this case, the “customer service rep” is a copyright lawyer who charges you thousands of dollars just to give away the thing you didn’t want to own in the first place.
Worse still: every person who hopes to make use of your work needs to hire their own copyright lawyer to hunt down hidden gotchas in that license and ensure that you have a well-founded basis to take the creator at their word when they tell you that you’re permitted to use their work as you see fit.
That’s where Creative Commons licenses come in. Anyone who wants to release their work for public re-use need only visit the Creative Commons website and step through a simple process to choose their permissions. Do you want to grant permission for commercial use, or restrict permission to noncommercial users? Do you want to limits re-use to exact copies, or will you permit remixes (“derivative uses,” in copyright jargon)? Can the people who integrate your work into their own creations release them under any terms they chose, or must they also release them under the Creative Commons license as you (“ShareAlike”)?
Creative Commons licenses have been “ported” to more than 50 countries’ legal systems. That means that you can grab an image from Japan, combine it with music from Norway, and use it to animate a poem written in Canada, and it all Just Works, the disparate contours of those profoundly different legal regimes resolved by thousands of hours of work by hundreds of skilled attorneys, all over the world.
Creative Commons launched to enormous fanfare. Some of the world’s most popular recording artists released their music under CC licenses, and the entertainment industry’s most belligerent copyright warriors heaped praise on the project, affirming their commitment to sharing — with permission:
But the real action wasn’t in famous people sprinkling a few selected works into the Commons. The inspiring, incredible, fantastic aspect Creative Commons was the millions of everyday creators — writers, photographers, musicians, animators, painters, educators, scholars and more — who released their works into the Commons.
Those of us who were weary of grinding trench warfare of the Napster Wars saw peace in our time, as the number of works in the Commons ballooned, first to millions, then tens of millions, then billions, then tens of billions.
We turned the battlefield into a public park, and people from all walks of life and every part of the world came to that park and planted a garden. It was a true Commons, open to all, carefully tended. In a world of selfishness, greed, belligerence and enmity, the Commons was a beacon of civilization.
Creative Commons’ success was a sign that the internet could be a place of cooperation and collaboration, not just a Big Tech hydraulic press that crushed our social relationships, our creative efforts, and our hopes and dreams until every drop of juice had been extracted, leaving shattered and dry husks behind.
And now, at last, I come to the Copyleft Trolls.
You see, the first three versions of the CC licenses, released between 2002 and 2013, had a shared defect. The licenses were written so that they “terminated automatically upon any breach.”
That’s pretty Draconian language. Interpreted on a strict basis, this clause means that if you make any mistake in your Creative Commons usage, you cease to enjoy the permissions granted under the license terms and you become a copyright infringer, liable for those titanic statutory damages.
What’s more, all Creative Commons licenses set out some very specific terms for users. All the CC licenses (except for the Public Domain Declaration and the nearly identical CC0 license) require attribution in a very specific form:
- You must link to the original work; and
- you must name the creator of that work; and
- you must name the license you are using, including its version; and
- you must link to the license text.
Now, lots of people don’t get this. Copyright is an expert’s field, after all. Copyright licenses — even ones designed for a lay audience like the CC licenses — are classic “MEGO” (My Eyes Glaze Over) territory. A generation of click-through and shrinkwrap “licenses” have trained us to simply click “I Agree” and move on.
A common CC attribution reads like this: “Image: Cory Doctorow, Creative Commons.” That attribution does not satisfy the license conditions. It doesn’t link to the original. It doesn’t name the license or its version. It doesn’t link to the license.
Which means that if you’re using a work licensed under a 1.0, 2.0 or 3.0 version Creative Commons, this is a “breach” and the license “terminates automatically.”
This shouldn’t be a big deal. After all, as I wrote when I first encountered Copyleft Trolls:
If you put a CC license on your work, its explicit message is, “I want you to re-use this.” Not “I am a pedantic asshole with a fetish for well-formed attribution strings.” The point of CC is not to teach the world to write attribution strings: it is to facilitate sharing and re-use. If you are a good-faith user of CC licenses, then your response to an incorrect attribution string should be a request to correct it, not a threat to sue for $150,000 in statutory damages.
But Copyleft Trolls aren’t good-faith users of Creative Commons.
These monsters are the serpents in our garden.
The flowers they planted —photographs shared exclusively under these old licenses — are poisonous, planted specifically in the hopes that someone who doesn’t understand Creative Commons attribution requirements will make a tiny error in their attribution string. Once that happens, the Copyleft Troll threatens to sue them and demands hundreds or thousands of dollars in a “settlement,” under threat of a $150,000 statutory damages claim.
These are some of the worst people in the world.
They have come to the garden that we all built with our goodwill and creative labor, a place where all are welcome, and they strewed leg-hold traps all around. This evil, greedy scum stalks our garden, the garden we planted and tended by the million, feasting on the flesh of people whose only crime was to make a minor administrative error.
This is a theory of law that everyone should hate, even the RIAA’s most belligerent child-suers. It’s a practice of law that has more in common with demonology than jurisprudence — a theory straight out of a grimoire where a single mis-chalked rune in your circle of protection unleashes a hellion that escapes to chew your face off.
The Finns have a tremendous name for this mindset: pilkunnussija, which means “commafucker.”
Copyleft Trolls are the commafuckers in our garden. They won’t use the decade-old Creative Commons 4.0 licenses, whose “cure” provision gives users 30 days to fix their attribution strings before they terminate. The only reason to prefer the older, broken licenses is because you view CC as a tool for victimizing innocent people.
Here in the third decade of the civilian internet, the “public interest internet” — free from surveillance, manipulation and other digital leg-hold traps — is being devoured by the enshittifying imperative to degrade our internet into “five giant websites filled with screenshots of the other four.”
Like a blight that attacks pollinating honeybees but leaves malaria-carrying mosquitoes untouched, Copyleft Trolls don’t make the bad things worse — they make the good things bad.
What a vile and wicket deed.
What vile and wicked people.