Public Knowledge has blogged about this tonight.

I had the privilege of speaking with Sherin Siy earlier today and I appreciate Sherwin Siy’s point of view and his critique of both the situation as we understand it, and of my take on the situation.

I tend to agree with the paraphrasing of Lawrence Lessig that it doesn’t make sense to press copyright too far or all the time when it comes to political speech. But, as it was also noted, my particular photo is not essential to the “dialogue” happening here. It doesn’t make sense to abuse the terms that I’ve willingly shared this work under. And I feel I’ve been deprived of the reserved right to grant permission under other terms to use it further than the chosen Creative Commons terms allow.

I am trying to practice my belief in a “tool” that actually factilates sharing, that strikes a balance so that political speech and other dialogue can benefit from shared culture, from reuse and remixing and inherently maybe even be more constructive when the rules of the Commons are followed. I am trying to strike a balance between that and developing and sustaining my photography.

As I inspect my images closer, and the ads, it appears they may be using one or a couple similar images of mine taken from the same vantage point at about the same time. But that they are my images, unique to this event, remains clear – the angle of the photo, the angle of light, the apparent focal length, the basic nature of the exposure, the matching of key features of the expression, is all consistent with this event and my unique point of view.

The photo is one of several I took of Murtha in profile at a town hall in Virginia in 2006, listening to the public talk about the Iraq war and the Bush Administration. The scene was a packed room, full of people with 9/11 memorial t-shirts, American flags, comprising of local constituents that included veterans and Defense Department employees. There were peace activist veterans and veteran peace activists alike. Murtha’s scrunched facial expression as depicted in my photo is one of concentration and attentiveness (something you might derive from seeing the whole set and knowing about the event). In the ad it is reduced to a context-less scowl coupled with something else entirely.

I share many photos on Flickr under Creative Commons licenses and this photo is one of those. The Creative Commons is a way of using copyright to share material while retaining rights as one sees fit. It is a philosophy for using copyright constructively.

The license I chose was the “Attribution-Noncommercial-No Derivative Works 2.0 Generic” license, and the conditions are boiled down to the following points:

• Provide attribution
• No commercial use
• No derivative works
• And, of course, make clear the terms under which the CC-licensed work being used is available to others as well.

It seems obvious to me that the Russell campaign’s production people didn’t give proper attribution in the video or elsewhere, nor did they make the terms of the license clear in redistributing my work. They’ve manipulated the background of the photo further taking it out of context, which I believe constitutes a derivative work, and while this isn’t commercial speech, they did use the ad as fodder for fundraising. Depending on how the ad was created and the relationship between the producers and the campaign, I kind of wonder if the “commercial use” restriction wasn’t still violated (but that is speculation).

I don’t like the implication that I gave the Russell campaign permission beyond the limitations of the license I gave to the public. I’m trying, whenever I feel it appropriate, to share my photos with the commons to support the kind of substantive media and dialogue I believe in (even if I disagree with a given argument) and I am trying to be able to do more media making. Inappropriate use of my work undermines this.

This morning I woke to see, upon closer inspection of the web site, that my image is being used in other promotional content on the campaign site and in another spot, “The King of Pork” ad.

I didn’t react publicly right away last night because I reached out to friends who know lawyers and to Public Knowledge for advice first. I got the beginnings of advice this morning. I’ve written Russell’s campaign to ask them to stop using my work beyond the bounds of the Creative Commons license and I’m interested in finding out what more I can do.

I feel like I should say I am also all for fair use (an implied right that long precedes the Creative Commons) but I don’t think this fits. Others have agreed.

I don’t know yet if they’ve run these ads on TV, but they appear to want to and they have gotten a sizable enough views on YouTube for a congressional race.

I would hope that when Creative Commons works are used properly in any kind of speech the public would understand such use is not the same as endorsement by the original creator. By not following the rules of the Creative Commons license, Russell’s ad leaves people to reasonably conclude an endorsement by me if they happen to recognize the photo or find it elsewhere, properly attributed. Ben’s message to me last night was an example of such an inference – that I had somehow collaborated with this campaign – being drawn by a complete stranger.

I could imagine Creative Commons-supplied works figuring into constructive mainstream political volleys some day. Where dynamic and well-attributed and linked remixed works themselves could be maps to the nuance and reality of the political scene, via which deceit and inaccuracies could be routed out by tracing the component parts of these works.

This misuse is an example of diminishing the productive uses of copyright, of the commons and I find this a threat to democracy (however important this small example is or is not). The consequences of stomping across the commons could become quite significant if people become afraid to share their work, particularly if like much of mine it is documentary in nature, because they’re afraid it will be unattributed, taken out of context, or worse.

By documenting this publicly, I’m not implicitly defending the comments by Murtha that the first ad is ostensibly criticizing. I personally have fundamental disagreements with Murtha’s hawkishness, nevermind the pork end of his role in defense spending. To be frank, I doubt I agree with much of Murtha’s or Russell’s stated positions or their track records overall.

I’m not sure how one can make a fair extrapolation of those states’ primary election results because of the conditions they were held under.

I’m not partial to either of these candidates, and I am not a Democrat. I am befuddled by what seems like a fanciful wish by more than just Hillary Clinton to extract a legitimate number from a process that was officially abandoned.

The Party punished those two states, fairly or unfairly, and secured pledges from its presidential candidates not to campaign there. Clinton had a higher profile by default, and did project an additional presence there more than Obama, although technically not campaigning there (she seemed to just hold fundraisers and getting more media attention for it, if Obama did the same he didn’t benefit the same).

Whether the rules are fair or not is moot at this point — they were put in place and agreed to. People made decisions and overt commitments based on these rules.

Obama, wishing to compete effectively and obeying the rules, spent his money and time elsewhere so as to not even get on the ballot in one case. If he had made an effort there, had the rules allowed, there almost certainly would have been a different outcome in those elections. He certainly would’ve succeeded in getting on the ballot.

Clinton doubled-back on her commitment to these rules after the fact and when the overall vote appeared closer and, presumably, her campaign became a little more desperate. She began to join the state parties in overtly agitating for retroactive representation, pleading in the language of democracy. While the disenfranchisement wasn’t so democrat, the re-enfranchisement she has pursued is not any more democratic.

A fair election that presented all the choices did not happen in these two states, and Clinton seems to have acted duplicitously.

I’d say that the party members in Michigan and Florida have valid reason to protest the tactics and rules of their national party, but I don’t see how the vote that happened under the circumstances it did could be considered fair and anything to base a delegation count on with any credibility. If the party decides to give the states representation at the convention, and assign delegates based on those primary votes, I would think it would only secure in many minds that this party is even more schizophrenic or a farce.

The capital-D Democrats seem to have little to do with democracy. (And this is hardly the first cause to inspire that observation.)

You may parse the term anti-American differently than I, and if it is truly that subjective, I think that only gives more cause to use the term sparingly. To me the terms signifies a general disdain for all things American: Americans, American culture, the actions and policies of the US government. I’m not convinced that is accurate in the case of Muqtada al-Sadr. When you can isolate the sentiment to some subset of those categories a more accurate term can almost always be found, or qualifiers need to be deployed.

One of the additional instances was on May 2. I posted a “tweet” shortly after I heard it. My recollection is that in this case it came from a presenter, not in the voice of a reporter in the field. I visited the NPR site and went through the Morning Edition stories for that day and I cannot find the use in the only story in that day’s archived line-up about Iraq. It was a discussion about an interview with a member of Sadr’s militia.

It seems most likely that I heard the use in the presentation of news headlines by Carl Kasell (the headlines are a part of the broadcast which is not apart of the show per se, and not publicly archived as thoroughly as the show itself). Less likely, but not ruled out (as stories do sometimes seem to get tweaked before they’re rebroadcast for the second time on the East Cast or for the West Coast), perhaps I did hear it in this story and it got edited out.

In fact, the May 2 story was a reasonable piece that judiciously used qualifying terms and appears to be an honest attempt at figuring out what the “Sadrists” are all about. It effectively pokes holes in the idea that Sadr or his followers are truly “anti-American.”

But then, this morning, May 5, I heard the term used again by Tom Bowman in a news piece (again, not archived with Morning Edition and only select audio eventually shows up in the “News” section of the NPR web site).

I’m sure there are more than these three instances in the span of time between Brian’s first notice of the use and today.

This may seem to be nit-picky, but I think this is symptomatic of a broader problem where motivation is ascribed to subjects without due qualification or substantive evidence. Sometimes it comes in the form of accepting stated motivation (say from official spokespersons) other times it comes in the form of the inaccurate use of language. Both phenomenon are, at best, lazy and at other times malicious.

In this case, given the evidence of the nuanced reporting that can sometimes be found in the more in-depth segments of the show, I’m going to go with “lazy.” It seems to be shorthand slang to fit into those seconds-long spots in the brief newscasts. But it is inaccurate. If we return to Brian’s comment, that Sadr is not “anti-American” but “anti-occupation”, we find in his complaint a solution — the equally short but more accurate term “anti-occupation.”

There’s another problem of inequity, which I don’t have time to get into: That of a general trend of accepting the stated motivation of certain actors — say President Bush — and not accepting the stated motivation of others — let’s say, Osama bin Laden, in spite of evidence that both are just as believable, or that the accepted position actually isn’t supported whereas the stated motivation not accepted might be the most supported by evidence. But that’s worthy of an essay of its own and I’m hardly the first one to highlight these issues.

The New York Times quotes a Chinese Olympic official, Qu Yingpu, in response to the protests of the Olympic torch tour as saying “This is not the right time, the right platform, for any people to voice their political views.”

His own apparent belief that he can say that with any authority is politics.

Never mind the inherent nationalism that is always present at the Olympics.

What is poorly articulated in the most well-intentioned statements of this sort is a widely shared desire for the Olympics to be a unifying experience, despite the nationalistic undertones, and generally not a polarizing sort of experience.

That’s great, but there is no getting rid of the politics.

I get the feeling that not all the statements are well-intentioned, and I don’t just mean the ones from Chinese officials this year. I think the Olympics are something of a business, and business is always political too.

That aside, it seems futile to to me to achieve an ideal by proclamation, attempting to exclude voices of the real controversies and atrocities of the world—particularly those in which the hosts, and implicitly more powerful than most other participants in the given year’s games, have a role.

Nothing else was shown of what this individual said, so perhaps he had a more nuanced view. But I wonder why people say things like that and I wonder why the press focuses on that. It seems like elections would be much more functional, primary elections especially, if you lined up behind the candidate who most represented your concerns and then voted for them—and then you found out who the leader was.

And if you were a “good” party member, you then supported that leader.

Instead people are encouraged to hedge their bets and pick a winner—before they actually pick a winner based on something meaningful.

Of course this has been the case for many election cycles now, so its probably a self-fulfilling habit: There probably is not anyone these people would really want to line-up behind based on the full portfolio of their issues or a close analysis of their credibility. For me, despite all the talk of “hope” and “change” (cliches that, coming from DLC Democrats, are oxymorons without being compound words), that sentiment applies across the aisle.

There’s a problem when people feel there are no good candidates and no clear leader, even the “clarity” presented by not having to deal with actual issues.

Of course, there are people who have looked closely at this kind of failure of democracy. And the dysfunction of horse race politics, poorly moderated debates and media myopia are not the only problems. Take a look at the work of non-profit endeavors like Fair Vote and Open Debates.