Re: <nettime> Re: Rhizome.org Member Agreement

[Felix Stalder <felix@openflows.org>]

>It should be noted that the previous version of our member agreement also
>granted Rhizome broad rights to reproduce, publish (etc.) content in other
>media.

This is a non-argument. Just because something has been done before does
not mean that it's still good (or bad).  One might assume that the recent
debates around digital copyright increased  your sensitivity towards these
issues (well, perhaps they have...).

>On Nov 15, Declan McCullagh <declan@well.com> wrote:
> >That is, of course, breathtakingly broad, and far more than what's
> >required to host or distribute stuff online. Yahoo tried just this,
> >and backed down (its Geocities site) after public outcry. Rhizome
> >seems to let you opt-out of part of this clause, but it's not clear to
> >me how much wiggle room you have, or how many people will read
> >the fine print and choose to opt-out.
>
>You're right to be sceptical, Declan, but I don't think it's fair to
>compare us to Yahoo! (a publicly-traded for-profit company). Rhizome is a
>not-for-profit organization. The purpose of clause (iii) is to facilitate
>our making content available in the future, whether that be in print or in
>some medium that does not yet exist.

This, again, is a non-starter. Not-for-profit is primarily a tax status and
offers only very limited indication as to what the organization actually
does. It is too easy to say that for-profit companies are bad,
not-for-profits are good. If the licensing agreement of Rhizome is worse --
in the sense of transferring copyright from the creators to the institution
-- than that of Yahoo!, well, then it's worse.

Also, one might easily imagine a greedy for-profit (to stay within the
black and white picture) arguing that these expansive copyright agreement
are done even in the not-for-profit sector and citing Rhizome as an
example. In other words, if even cultural organizations engage in this type
of IP land-grab, why shouldn't commercial one?

What we are currently hearing from organizations like the RIAA is that
there is no alternative to the expansion of IP because, otherwise, the
world would grind to a halt and they could no longer function. It's a bit
disappointing to hear the same from you.

>It would be inordinately difficult to
>negotiate all the the rights with all the contributors, recent and not so
>recent, afresh every time we might want to do so. The effect of being
>required to do so, given our limited resources, would be to prevent this
>community content from outliving the Rhizome web site. It would be
>short-sighted and irresponsible for us to construct an archive that
>couldn't be preserved for the long-term.

Evidence suggests differently. Nettime, for example, has been putting out
books and other materials without ever demanding such a blanket permission.
In effect, it's really easy: send the author an email and ask for
permission. If she/he/they say "yes", then include it and if they say
nothing or "no", then don't. That's how nettime has been doing it, with
financial resources that are not just limited but simply non-existing.

Things only get difficult of some people get paid and others don't.  The
fair solution, however, is not to get a blanket exemption, but to face up
and give everyone a fair deal (which, again, makes getting permissions
easy).

I have nothing against getting paid. In fact, I think it's so good that
everyone who contributes should get paid.


>The opt-out language that follows in the agreement can hardly be called
>fine print. It's in ALL CAPS!

Isn't that what all marketing people tell us?  But it's telling that it's
an OPT-OUT, rather than an OPT-IN provision.


>Yup. This really isn't about ripping people off or making a profit (not
>that there's profit to be made doing what we do anyway, but that's another
>ball of wax). It's about building a resource for the community. We may
>someday find a way to generate revenue from the content we've been
>gathering. If so, we would be bound by law, and by our own convictions, to
>use that revenue to further our nonprofit mission, which is to provide an
>online platform for the global new media art community and to foster the
>creation, presentation, discussion and preservation of new media art.

I don't doubt your good intentions or personal integrity. However, the
agreement transfers the rights to an organization called Rhizome and not an
individual called Mark Tribe.

Again, your inability to turn a profit is not the issue here. Honestly, I
whish you could. The issue is who is getting paid and who is not and how
those with the money protect themselves against those without it.

The real issue concerns the relationship between the platform and the
community. Who serves whom? This is not a black-and-white issue, because,
obviously, community needs a (physical or virtual) location and a platform
is useless without community. It is a question of balance and, as your
member agreement indicates, the balance you strike is rather heavily tipped
in favour of the platform (at least as far as the transfer of copyright is
concerned).  That's fairly common and business-(or not-for-profit)
-as-usual.

I doubt, though, that it's the only way of doing things and one might hope
that 'progressive' and 'experimental' organizations would be a little more
imaginative on these really thorny issues as well, rather than following
the industry line.


Felix


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