Intellectual Property Law: Copyrights or Copy Wrongs?
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WPE Reading Set A: Intellectual Property Law: Copyright or Copy Wrong?
January 4, 2010 ††Campus Center Ballroom, 3rd Floor, at 10:00 a.m.
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Timed†Essay Exam: Reading Set A
Intellectual Property Law: Copyrights or Copy Wrongs?
4 January 2010 at 10:00 a.m. in the Campus Center Ballroom, 3rd Floor
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WPE Reading Set A: Intellectual Property Law: Copyright or Copy Wrong?
January 4, 2010 ††Campus Center Ballroom, 3rd Floor, at 10:00 a.m.
University of Massachusetts/Boston
Colleges of Liberal Arts, Science and Mathematics, and Nursing and Health Sciences
Writing Proficiency Evaluation
Reading Set A timed†essay exam, Campus Center Ballroom (3rd floor)
4 January 2010 at 10:00 a.m.
Reading Set A: Intellectual Property Law: Copyrights or Copy Wrongs?
1. Stearns, Laurie. “Copy Wrong: Plagiarism, Process, Property, and the Law.” California
Law Review 80.2 (Mar. 1992): 513†553.
2. Lessig, Laurence. “Introduction” and “Constraining Innovators.” Free Culture.
http://free†culture.org/get†it
3. Boynton, Robert S. “The Tyranny of Copyright?”
http://www.nytimes.com/2004/01/25magazine/25COPYRIGHT.html
Articles reprinted by permission
Notes:
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• “Copy Wrong: Plagiarism, Process, Property, and the Law,” by Laurie Stearns
People commonly think of plagiarism†the intentional appropriation of the creative output or
scholarship of another without attribution†as being “against the law.” But the law and plagiarism
intersect only imperfectly. Plagiarism is not a legal term, and though an instance of plagiarism might
seem to be the quintessential act of wrongful copying, it does not necessarily constitute a violation of
copyright law.
Plagiarism dwells at the meeting place of two great human endeavors: literature and the law. It
is the source of legal and critical disputes, an example of “creativity gone bad.” Both the law and the
way we define creativity can shape the way we understand plagiarism, and both the way we understand
plagiarism and the way we define creativity can shape the law.
[…] I have chosen to [discuss plagiarism in the setting of the written word], drawing my
examples from the literary and academic worlds, so as not to become entangled in constitutional
definitions of an “author” or a “writing,” or in statutory definitions of a “work of authorship,” that would
obscure the primary question: What is the role of copyright law in protecting creativity and scholarship?
My intention is not to simplify the relationship between plagiarism and the law, but rather to
explore its complexity. My approach is to provide an overview of plagiarism in literature, to examine and
analyze the reasons for the difference between plagiarism and copyright infringement, and to explore
possible directions for the future development of intellectual†property law. […]
1.) PLAGIARISM AND THE CREATIVE PROCESS
In their ongoing effort to set themselves apart from other living creatures, human beings have
singled out the creative process as a uniquely human characteristic. Whether viewed as a spiritual trait
or a physiological one, creativity†in literature, the visual arts, music, philosophy, or science†can inspire
admiration and awe. The creative process is one of change, both for the creators, who while
transforming their raw materials into new, finished works find themselves transformed, and for their
audiences, who in seeking knowledge and enlightenment assimilate and transform those works as part
of their own creative process.
Creation, of course, is not an absolute. To claim to have created a work, one need not have
made something from nothing. In the words of Mary Shelley: “Invention, it must be humbly admitted,
does not consist in creating out of void, but out of chaos.” Whether creation is perhaps the act of
assembling something that did not formerly exist, or of revealing something already there, or even of
hiding something previously disclosed, it is in any case an act situated in time, taking into account what
has gone before.
Some thinkers have conceived of art as essentially imitative. Stories that depict common
experiences or illuminate life’s dilemmas are told and retold in myth, poetry, and drama. Creators draw
upon the works of their predecessors and offer up their own works for the use and enjoyment of others.
Given this interdependence of human creative efforts, requirements of complete originality or novelty
become difficult, if not impossible, to impose in evaluating the success or value of a literary work. The
idea of plagiarism is thus something of a paradox. Why condemn an author for borrowing from another
if such borrowing is inevitable and even fundamental to the creative process? The answer lies in the kind
of borrowing an author does. The essence of the modem understanding of plagiarism is failure of
process in both the purely literary and the scholarly settings.
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Plagiarism means intentionally taking the literary property of another without attribution and
passing it off as one’s own, having failed to add anything of value to the copied material and having
reaped from its use an unearned benefit. In a sense, plagiarism (presenting another’s work as one’s
own) is the inverse of forgery (presenting one’s own work as another’s). The word “plagiarize” comes
from the Latin plagiarius, originally meaning a kidnapper and then used to refer to a literary thief. The
image of “kidnapping” a literary work does not precisely fit with plagiarism, which involves more than
just taking the words of another; it also involves putting those words to work for the plagiarist’s own
ends. The image is more nearly that of abduction into servitude, and, in fact, plagiarius meant both a
kidnapper in general and a kidnapper of a slave in particular.
The word’s ancient origin indicates that borrowing in literature and scholarship has concerned
authors for centuries. [… “F]aulty” borrowings†“the secret, the perverse, the servile, the superficial”
†were denounced. The parameters of the modern definition of plagiarism emerged during the late
eighteenth century out of the Romantic emphasis on individualism and the conviction that writers are
obligated to make unique contributions to any material they borrow, turning it into something that is
their own. The only legitimate borrowing, therefore, is that which proceeds to transform the original
material by means of the borrower’s creative process.
In contemporary literature, the forbidden appropriation of arrangements of words is not the
same as the allowable borrowing of themes, structures, observations, or life experiences, and modern
writers observe a code of behavior that differentiates the acceptable from the unacceptable in this
respect. […]
In the academic world, plagiarism arises most often as the unattributed use of material that,
were it properly credited, would not be considered plagiaristic at all. In forms of writing in which citation
to supporting authorities is customary, the scholarly plagiarist’s offense consists less in omitting to
transform the borrowed material than in omitting to identify its source. Academia takes plagiarism
seriously: “Plagiarism is an academic capital offense, punishable by academic death for student or
faculty.” Academic authorities refer cases of plagiarism to the disciplinary bodies of either the school or
the appropriate professional organization.
People despise plagiarism not because it results in inferior works †by drawing from others
plagiarists may produce better works than they could by themselves †but because it is a form of
cheating that allows the plagiarist an unearned benefit. This benefit could be either tangible, as when
the work is of commercial value or fulfills a requirement for an academic degree or tenure, or intangible,
as when it adds to the plagiarist’s personal or professional reputation. The form that the plagiarist’s
cheating takes †claiming credit for someone else’s achievements †is particularly abhorrent. Individuals
who do not hesitate to photocopy copyrighted books or videotape copyrighted broadcasts would never
dream of representing themselves as the authors of the books or tapes. […]
As popularly understood, then, plagiarism is a failure of the creative process, not a flaw in its
result. Although imitation is an inevitable component of creation, plagiarists pass beyond the
boundaries of acceptable imitation by copying from the work of others without improving upon the
copied material or fully assimilating it into their own work; by failing to attribute the copied material to
its actual author; and by intending to deceive others about its origin. Society’s disapproval is directed
toward the plagiarist and the process of plagiarism, not toward the result: if Dr. Frankenstein were
viewed as a plagiarist who stitched together a creature made of parts stolen from other entities, it
would be Dr. Frankenstein whom society condemned, not the monster he animated. Moreover, society
disapproves of the benefits that can accrue to plagiarists if their deception is successful †if, for example,
Dr. Frankenstein were to claim a prestigious award for bringing a creature into being without
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acknowledging that he had made the creature from preexisting components. Such societal disapproval
seeks an outlet in the law. But the law, with its attention focused on different concerns, provides only an
imperfect means of addressing the problem of plagiarism.
2) PLAGIARISM AND COPYRIGHT INFRINGEMENT
Even without being able to articulate a precise definition, many people find it easy to recognize
plagiarism. [… However, ] the law […] has had a difficult time recognizing and dealing with plagiarism.
The term itself is not a legal one; and though sometimes used in opinions, it has not been judicially
explained or defined since 1944. Hardly a single modem law book contains an entry for plagiarism in its
index. The lone area in which the term has developed some legal currency is in musical†copyright
infringement. There, however, plagiarism simply means unauthorized copying, a strict†liability offense
that cannot be cured by crediting the original composer. In fact, most courts using the term, writing
about a range of subjects from patents to trademarks, employ it imprecisely as the generic equivalent of
copying. One bewildered jury, uncertain exactly what the counsel and the judge meant by “plagiarism”
and other terminology used in a trial, sent the bailiff out for a dictionary during its deliberations.
By loosely redefining plagiarism to mean any form of unauthorized copying, whether attributed
or not and whether intentional or not, the law has molded the meaning of the term to fit its own
framework. The framework in which the law has found plagiarism to be most conveniently located is
intellectual†property law †a specialty that is itself divided by subject matter into discrete subspecialties:
copyright, patent, trademark, trade secrets, and unfair competition. For various reasons, the unfaircompetition
branch of intellectual†property law has proved unsatisfactory for many plagiarism cases.
The occasional judicial attempts to treat plagiarism as a common†law tort remain aberrations.
Cases of literary plagiarism are most often handled as cases of copyright infringement. Copyright
law aims both to encourage individual creativity and to encourage the dissemination of the results of
the creative effort to the public. At times, these aims are in opposition, as when granting authors the
exclusive right to their works in order to give them the financial incentive to create has the effect of
preventing others from improving or adapting those works for the benefit of society. The current
Copyright Act of 1976, like its predecessors, attempts to accommodate both aims by affording
protection for only a limited time and by allowing for exceptions that permit certain uses of the
copyrighted work by others.
At present, copyright law protects “original works of authorship fixed in any tangible medium of
expression” by giving the copyright owner the exclusive right to reproduce the work, to prepare
derivative works based on it, to distribute copies of it, and to perform or display it publicly. Copyright
ownership “vests initially in the author or authors of the work” and may subsequently be transferred.
Violation of any of the exclusive rights is termed “infringement,” and the legal or beneficial owner of an
exclusive right has standing to sue for its infringement. Remedies for infringement include injunctive
relief, impoundment or destruction of the infringing articles, and a monetary award of actual damages
and profits, statutory damages, and costs and attorney’s fees.
A practical inquiry focusing on the result of copying necessarily precedes a finding of copyright
infringement. The court examines the allegedly infringing work to determine, first, whether it was
copied from the allegedly infringed work and not independently created; and second, if it was copied,
whether the copying was wrongful. The plaintiff can prove copying by presenting both evidence of
similarity between the two works (including expert testimony) and evidence of the defendant’s access
to the plaintiff’s work. The two works need not be identical, but must be substantially similar; where the
degree of similarity is great enough, access can be presumed rather than proven. For the copying to be
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adjudged wrongful, the ordinary lay observer rather than the expert must conclude that there has been
improper appropriation of the copyrighted material.
Plagiarism is not necessarily copyright infringement, nor is copyright infringement necessarily
plagiarism. The two concepts diverge in respect to three main aspects of the offense: copying,
attribution, and intent. In some ways, the concept of plagiarism is broader than infringement, in that it
can include the copying of ideas, or of expression not protected by copyright, that would not constitute
infringement, and it can include the copying of small amounts of material that copyright law would
disregard. In other ways the concept of infringement is the broader one, in that it can include both
properly attributed copying and unintentional copying that would be excused from being called
plagiarism.
The divergence between plagiarism’s popular definition and copyright’s statutory framework
suggests an essential contradiction between what is at stake in plagiarism — the creative process †and
what is at stake in copyright infringement †the creative result. Plagiarism raises questions about aspects
of the relationship between copying and creativity: originality and authorship; attribution; carelessness
and intent; amounts, types, and sources of copying; and the harm to the plagiarist, the victim, and
society. Despite its concern with wrongful copying, copyright law cannot answer all these questions. By
emphasizing result, the law accommodates certain practical constraints of civil litigation, such as the
requirements of an identifiable plaintiff and a showing of measurable harm, but it turns its attention
away from the creative process.
3) LEGAL METAPHORS: INTELLECTUAL PROPERTY AND THE CREATIVE CONTRACT
[…]The law’s categorization of written material as property springs from the belief that the “law
of nature” entitles human beings to reap the fruits of their labors. According to Blackstone:
When a man by the exertion of his rational powers has produced an original work, he
has clearly a right to dispose of that identical work as he pleases, and any attempt to
take it from him, or vary the disposition he has made of it, is an invasion of his right of
property.
Thus, an essential attribute of property in the Anglo†American legal system is exclusivity of
ownership. Property is “[t]hat which is peculiar or proper to any person; that which belongs exclusively
to one.” The owner of property has “the unrestricted and exclusive right to a thing; the right to dispose
of a thing in every legal way, to possess it, to use it, and to exclude everyone else from interfering with
it.” Certain kinds of property, such as natural resources, are not subject to exclusive use, but these are
exceptions to the general rule of exclusivity.
If words are property, they are an odd form of property. At any instant, they are finite in
number and yet can be freely and infinitely invented or duplicated. They cannot be marked with the
insignia of ownership. When first invented they are subject to exclusive possession before being written
or uttered, yet such exclusive possession leaves them incapable of fulfilling their communicative
function. They can be initially withheld from others, but once transmitted, they can never be retrieved.
They are used to convey meanings that have developed over centuries but can be instantly shifted in
fresh and surprising ways. Themselves composed of alphabetical symbols, they are of little value when
separated from the larger matrix of literature in which they are the symbols.
Courts and legal scholars have long recognized that literary property differs from other forms of
property. Justice Holmes remarked upon the unusual qualities of this variety of intangible property:
The notion of property starts, I suppose, from confirmed possession of a tangible object
and consists in the right to exclude others from interference with the more or less free
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doing with it as one wills. But in copyright property has reached a more abstract
expression. The right to exclude is not directed to an object in possession or owned, but
is in vacuo, so to speak. […]
Judge Seabury noted that the purchaser of literary property has more circumscribed abilities to
use it than does the purchaser of other kinds of property:
Even the matter of fact attitude of the law does not require us to consider the sale of
the rights to a literary production in the same way that we would consider the sale of a
barrel of pork. ... While an author may write to earn his living and may sell his literary
productions, yet the purchaser, in the absence of a contract which permits him so to do,
cannot make as free a use of it as he could of the pork which he purchased.
Nevertheless, such judicial discomfort has not interfered with the law’s readiness to treat what
it calls “intellectual property” as it treats other forms of property. Copyright law has duplicated the
protection provided by traditional property doctrines by setting statutory boundaries similar to the
physical boundaries of tangible property and by formulating exclusive rights of ownership, such as the
right to exclude, to use, and to transfer. […]
But authors also have noneconomic interests to which the notion of intellectual property
corresponds less well. People who make an illuminating discovery, write a profound and beautiful essay,
or invent a trenchant epigram may want less to own their creations than to receive credit for them.
Ownership would give them the ability to withhold their contributions from others, but what most
authors want is to communicate them. Intellectual†property law does not provide a useful framework to
govern this communication or to ensure that creators receive full credit for their creations when the
communication occurs.
The law’s choice of the property framework for words was not an inevitable one. As first†year
law students learn, the law encompasses a variety of doctrinal areas, each with its own terminology,
lines of cases, rationales, and expressed values. Some doctrines, such as contracts, deal largely with
planned interactions between people; others, such as torts, deal largely with interactions that are
unplanned; still others, such as property, deal largely with the objects of those interactions.
Despite their differences, all legal doctrines share their identity as metaphors. They reflect
various ways of seeing the world, each way incomplete by itself but overlapping with and
complementary to the others. […] The metaphor of intellectual property is capable of distorting the
law’s analysis of human creativity. When we talk carelessly about intellectual property, we reduce a
voluminous, diverse mixture of stray thoughts, dogged research efforts, fragmentary phrases, epics,
stunning insights, and blind alleys to mere commodities. Property is thought of as being subject to
exclusive ownership, over and over, in sequence. But each creative act takes place within a web of
contributions from a community of creators, a web that spans both time and space. The property
metaphor is misleading for words because words are meant to be shared, not possessed. Words — as
well as music and the visual and performing arts — are a medium of communication. As such, they are
subject to rejection, misunderstanding, or distortion during their passage from creator to audience, as
well as to recognition, appreciation, or improvement. What they are not subject to is ownership.
To improve our legal metaphor we must look beyond the idea of property as something we
possess to the larger legal context within which property exists. Property is more than an aggregation of
separate chains of ownership. It is a network of relationships, constantly realigned and readjusted
through transactions that the law understands as contracts. The contract metaphor adds to the
intellectual†property metaphor because it focuses as much on the process of the transaction as on the
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result. It assumes the existence of dealings between people, unlike the property metaphor, which
assumes the existence of a bundle of rights that an owner holds against others. Contract is a meeting of
minds, not a placing of boundaries. […]
4) ALTERNATIVES
[…W]e can strive to make the law more true to the creative process. Copyright law should open
itself to a broader way of understanding words. We have seen that copyright law does not prohibit all
copying, including some varieties of plagiarism. Copyright infringement fails to correspond to plagiarism
because there is more than one way to view words. In copyright law, words are property, the result of
the creative process. In plagiarism, words are part of the process itself, and the process is of both
creation and communication. Ultimately, these two concepts — process and result — are inseparable.
[…]
By recognizing that books are more than products, and that words are more than property,
courts can be more sophisticated in their approach to creative disputes than they are at present. At first
glance, the legal definition of originality would appear to incorporate an understanding of the web†like
complexity of the creative process by excluding “novelty” as a relevant attribute. Copyright law insists
that “originality” means merely that a work “owes its origin” to the creator; in other words, it is the
result of its author’s labors, but it need not be novel. Courts steadfastly refuse to assess a work’s novelty
or intrinsic merit. Indeed, with its emphasis on precedent, the law is predisposed to regard the lack of
novelty as a virtue.
Yet the concept of novelty constantly recurs in copyright law. “Original, as the term is used in
copyright, means only that the work was independently created by the author (as opposed to copied
from other works), and that it possesses at least some minimal degree of creativity. Though the meaning
of “creativity” in this context is hard to specify, novelty is at least one of its components. The court that
found creativity to be lacking in the design of a plastic corsage remarked that the “degree of creativity
necessary to define objects as works of art is not supplied through innovations which are solely
utilitarian or mechanical,” implying that non†utilitarian or non†mechanical innovations could have
evidenced sufficient creativity.
Thus, on one hand, the law denies the relevance of novelty; on the other hand, the law
nonetheless takes note of novelty by qualifying the requirement of “originality” as a condition of
copyright protection with the requirement of “creativity,” which includes “novelty.” This qualification
once again shifts the focus of legal inquiry from process to result. […]
The law also assumes that it can separate ideas and facts from their expression. It regards facts
as having an objective existence distinct from the existence of the human beings who discern them.
Recently the Supreme Court declared, “The distinction is one between creation and discovery: the first
person to find and report a particular fact has not created the fact; he or she has merely discovered its
existence.” […]
The law need not cling to simplifications about the nature of originality and the nature of truth,
drawing endless fine distinctions between different kinds of creative achievements and forgetting that
copyright law, like all law, is about people. By embracing a new metaphor, the law can acknowledge that
intellectual property does not exist in isolation but is brought into being by creators who adapt and
assimilate the work of others. The contract metaphor can supplement the property metaphor without
replacing it; contract law furnishes a guide for evaluating the way in which creators create, in the same
way that property law furnishes a guide for evaluating what creators create.
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Applying legal rules to creative efforts is a delicate task, however, no matter how enlightened
the rules might be, for what the law protects it also controls. The premise of intellectual†property law is
the idea that creativity should be encouraged and knowledge sought. In actuality, we have sometimes
used the law to suppress creativity and knowledge. Along with admiration and awe, creativity can also
make us feel envy or fear, prompting us to attack people such as Galileo for disputing the word of God
or James Joyce for saying the unspeakable.
We should not turn hastily to the law, expecting it to be more consistent or more wise than we
are. Law has its limits and cannot be relied on to provide a simple solution to every problem. […] Given
that our opinions about plagiarism are contradictory — sometimes we find it difficult to forgive, at other
times we find it difficult to condemn […]
A suitable forum for dealing with plagiarism may thus lie outside the legal system. After all,
plagiarism is just one of the creative risks that people take, and the means of reducing these risks are
not to be found in law. Through the very act of creation we risk the inevitable imperfections that
intervene between thought and articulation. Through sharing our creations with others we risk being
misquoted or misunderstood. Through the process of publishing our creations in order to make them
accessible to others we risk yielding to alteration that leaves us feeling that our work is no longer our
own. […]
Aided by our understanding of copyright law, we can seek alternative ways to deal with the
problem of plagiarism. Creators can seek help from one another, individually or collectively. Some
professional groups, such as the Authors Guild or the National Writers Union, are active in support of
authors’ rights and in devising accessible procedures through which writers can resolve their grievances.
Academic groups, such as the American Historical Association, maintain sanctioning procedures. The
pressure of public opinion may also be brought to bear against offenders, even in the absence of any
possibility of sanction, when people who become aware of plagiarism refuse to keep silent.
Aided by our understanding of plagiarism, we can continue to work toward a more just law of
creativity. The law is itself a product of the human creative process†shaped by centuries of tradition,
renewed by the infusion of the new and the rediscovery of the old, continually rethought, reanalyzed,
and reconstructed, as powerful and moving as any other work of literature. We can mold it to our
needs, neither making valid actions too difficult to sustain nor encouraging excessive literary
litigiousness. In so doing, we should not look to faulty metaphors to resolve our disputes. We must not
rely on catchphrases like “intellectual property” to simplify a problem †instead, we should try to see the
problem in its complexity and trust ourselves to reach a just solution. As we try to facilitate and
encourage the creative process, whether through the law or outside it, we must continually work to
accommodate both process and result, both creator and audience, both property and contract, both
ownership and communication, both simplicity and complexity, both flexibility and consistency, both
metaphor and reality, and both creativity and the law.
• “Introduction,” From Free Culture, by Laurence Lessig
[…] I argue in the pages that follow, that […] what is happening in our culture today is [that corporations
are using the law to protect themselves against competition]. These modern†day equivalents of the
early twentieth†century radio or nineteenth†century railroads are using their power to get the law to
protect them against this new, more efficient, more vibrant technology for building culture. They are
succeeding in their plan to remake the Internet before the Internet remakes them.
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It doesn’t seem this way to many. The battles over copyright and the Internet seem remote to
most. To the few who follow them, they seem mainly about a much simpler brace of questions—
whether “piracy” will be permitted, and whether “property” will be protected. The “war” that has been
waged against the technologies of the Internet — what Motion Picture Association of America (MPAA)
president Jack Valenti calls his “own terrorist war” — has been framed as a battle about the rule of law
and respect for property. To know which side to take in this war, most think that we need only decide
whether we’re for property or against it.
If those really were the choices, then I would be with Jack Valenti and the content industry. I,
too, am a believer in property, and especially in the importance of what Mr. Valenti nicely calls “creative
property.” I believe that “piracy” is wrong, and that the law, properly tuned, should punish “piracy,”
whether on or off the Internet.
But those simple beliefs mask a much more fundamental question and a much more dramatic
change. My fear is that unless we come to see this change, the war to rid the world of Internet “pirates”
will also rid our culture of values that have been integral to our tradition from the start.
These values built a tradition that, for at least the first 180 years of our Republic, guaranteed
creators the right to build freely upon their past, and protected creators and innovators from either
state or private control. The First Amendment protected creators against state control. And as Professor
Neil Netanel powerfully argues, copyright law, properly balanced, protected creators against private
control. Our tradition was thus neither Soviet nor the tradition of patrons. It instead carved out a wide
berth within which creators could cultivate and extend our culture.
Yet the law’s response to the Internet, when tied to changes in the technology of the Internet
itself, has massively increased the effective regulation of creativity in America. To build upon or critique
the culture around us one must ask, Oliver Twist – like, for permission first. Permission is, of course,
often granted — but it is not often granted to the critical or the independent. We have built a kind of
cultural nobility; those within the noble class live easily; those outside it don’t. But it is nobility of any
form that is alien to our tradition.
The story that follows is about this war. Is it not about the “centrality of technology” to ordinary
life. I don’t believe in gods, digital or otherwise. Nor is it an effort to demonize any individual or group,
for neither do I believe in a devil, corporate or otherwise. It is not a morality tale. Nor is it a call to jihad
against an industry.
It is instead an effort to understand a hopelessly destructive war inspired by the technologies of
the Internet but reaching far beyond its code. And by understanding this battle, it is an effort to map
peace. There is no good reason for the current struggle around Internet technologies to continue. There
will be great harm to our tradition and culture if it is allowed to continue unchecked. We must come to
understand the source of this war. We must resolve it soon.
[… T]his war is, in part, about “property.” The property of this war is not as tangible […]. Yet the
ideas surrounding this “property” are [obvious ...] Most of us take for granted the extraordinarily
powerful claims that the owners of “intellectual property” now assert. Most of us […] treat these claims
as obvious. And hence we […] object when a new technology interferes with this property. It is as plain
to us as it was to them that the new technologies of the Internet are “trespassing” upon legitimate
claims of “property.” It is as plain to us as it was to them that the law should intervene to stop this
trespass.
And thus, when geeks and technologists defend their Armstrong or Wright brothers technology,
most of us are simply unsympathetic. Common sense does not revolt. […C]ommon sense is on the side
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of the property owners in this war. Unlike the lucky Wright brothers, the Internet has not inspired a
revolution on its side.
My hope is to push this common sense along. I have become increasingly amazed by the power
of this idea of intellectual property and, more importantly, its power to disable critical thought by policy
makers and citizens. There has never been a time in our history when more of our “culture” was as
“owned” as it is now. And yet, there has never been a time when the concentration of power to control
the uses of culture has been as unquestioningly accepted as it is now.
The puzzle is, Why?
Is it because we have come to understand a truth about the value and importance of absolute
property over ideas and culture? Is it because we have discovered that our tradition of rejecting such an
absolute claim was wrong?
Or is it because the idea of absolute property over ideas and culture benefits the RCAs of our
time and fits our own unreflective intuitions?
Is the radical shift away from our tradition of free culture an instance of America correcting a
mistake from its past, as we did after a bloody war with slavery, and as we are slowly doing with
inequality? Or is the radical shift away from our tradition of free culture yet another example of a
political system captured by a few powerful special interests?
Does common sense lead to the extremes on this question because common sense actually
believes in these extremes? Or does common sense stand silent in the face of these extremes because,
[…] the more powerful side has ensured that it has the more powerful view?
[...] I believe it was right for common sense to revolt […] the extreme claims made today on
behalf of “intellectual property.” What the law demands today is increasingly as silly as a sheriff
arresting an airplane for trespass. But the consequences of this silliness will be much more profound.[…]
The […] core claim of this book [is] that while the Internet has indeed produced something
fantastic and new, our government, pushed by big media to respond to this “something new,” is
destroying something very old. Rather than understanding the changes the Internet might permit, and
rather than taking time to let “common sense” resolve how best to respond, we are allowing those most
threatened by the changes to use their power to change the law — and more importantly, to use their
power to change something fundamental about who we have always been.
We allow this, I believe, not because it is right, and not because most of us really believe in
these changes. We allow it because the interests most threatened are among the most powerful players
in our depressingly compromised process of making law. This book is the story of one more
consequence of this form of corruption — a consequence to which most of us remain oblivious.
• “Constraining Innovators,” from Free Culture, by Laurence Lessig
[…] The charge I’ve been making about the regulation of culture is the same charge free
marketers make about regulating markets. Everyone, of course, concedes that some regulation of
markets is necessary — at a minimum, we need rules of property and contract, and courts to enforce
both. Likewise, in this culture debate, everyone concedes that at least some framework of copyright is
also required. But both perspectives vehemently insist that just because some regulation is good, it
doesn’t follow that more regulation is better. And both perspectives are constantly attuned to the ways
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in which regulation simply enables the powerful industries of today to protect themselves against the
competitors of tomorrow.
This is the single most dramatic effect of the shift in regulatory strategy that I described in
chapter 10. The consequence of this massive threat of liability tied to the murky boundaries of copyright
law is that innovators who want to innovate in this space can safely innovate only if they have the signoff
from last generation’s dominant industries. That lesson has been taught through a series of cases
that were designed and executed to teach venture capitalists a lesson. That lesson— what former
Napster CEO Hank Barry calls a “nuclear pall” that has fallen over the Valley—has been learned.
Consider one example to make the point, a story whose beginning I told in The Future of Ideas
and which has progressed in a way that even I (pessimist extraordinaire) would never have predicted.
In 1997, Michael Roberts launched a company called MP3.com. MP3.com was keen to remake
the music business. Their goal was not just to facilitate new ways to get access to content. Their goal
was also to facilitate new ways to create content. Unlike the major labels, MP3.com offered creators a
venue to distribute their creativity, without demanding an exclusive engagement from the creators. To
make this system work, however, MP3.com needed a reliable way to recommend music to its users. The
idea behind this alternative was to leverage the revealed preferences of music listeners to recommend
new artists. If you like Lyle Lovett, you’re likely to enjoy Bonnie Raitt. And so on.
This idea required a simple way to gather data about user preferences. MP3.com came up with
an extraordinarily clever way to gather this preference data. In January 2000, the company launched a
service called my.mp3.com.Using software provided by MP3.com, a user would sign into an account and
then insert into her computer a CD. The software would identify the CD, and then give the user access to
that content. So, for example, if you inserted a CD by Jill Sobule, then wherever you were — at work or
at home — you could get access to that music once you signed into your account. The system was
therefore a kind of music†lockbox.
No doubt some could use this system to illegally copy content. But that opportunity existed with
or without MP3.com. The aim of the my.mp3.com service was to give users access to their own content,
and as a by†product, by seeing the content they already owned, to discover the kind of content the users
liked. To make this system function, however, MP3.com needed to copy 50,000 CDs to a server. (In
principle, it could have been the user who uploaded the music, but that would have taken a great deal
of time, and would have produced a product of questionable quality.) It therefore purchased 50,000 CDs
from a store, and started the process of making copies of those CDs. Again, it would not serve the
content from those copies to anyone except those who authenticated that they had a copy of the CD
they wanted to access. So while this was 50,000 copies, it was 50,000 copies directed at giving
customers something they had already bought.
Nine days after MP3.com launched its service, the five major labels, headed by the RIAA,
brought a lawsuit against MP3.com. MP3.com settled with four of the five. Nine months later, a federal
judge found MP3.com to have been guilty of willful infringement with respect to the fifth. Applying the
law as it is, the judge imposed a fine against MP3.com of $118 million. MP3.com then settled with the
remaining plaintiff, Vivendi Universal, paying over $54 million. Vivendi purchased MP3.com just about a
year later.
That part of the story I have told before. Now consider its conclusion.
After Vivendi purchased MP3.com, Vivendi turned around and filed a malpractice lawsuit against
the lawyers who had advised it that they had a good faith claim that the service they wanted to offer
would be considered legal under copyright law. This lawsuit alleged that it should have been obvious
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that the courts would find this behavior illegal; therefore, this lawsuit sought to punish any lawyer who
had dared to suggest that the law was less restrictive than the labels demanded.
The clear purpose of this lawsuit (which was settled for an unspecified amount shortly after the
story was no longer covered in the press) was to send an unequivocal message to lawyers advising
clients in this space: It is not just your clients who might suffer if the content industry directs its guns
against them. It is also you. So those of you who believe the law should be less restrictive should realize
that such a view of the law will cost you and your firm dearly.
This strategy is not just limited to the lawyers. In April 2003, Universal and EMI brought a lawsuit
against Hummer Winblad, the venture capital firm (VC) that had funded Napster at a certain stage of its
development, its cofounder (John Hummer), and general partner (Hank Barry). The claim here, as well,
was that the VC should have recognized the right of the content industry to control how the industry
should develop. They should be held personally liable for funding a company whose business turned out
to be beyond the law. Here again, the aim of the lawsuit is transparent: Any VC now recognizes that if
you fund a company whose business is not approved of by the dinosaurs, you are at risk not just in the
marketplace, but in the courtroom as well. Your investment buys you not only a company, it also buys
you a lawsuit. So extreme has the environment become that even car manufacturers are afraid of
technologies that touch content. In an article in Business 2.0, Rafe Needleman describes a discussion
with BMW: I asked why, with all the storage capacity and computer power in the car, there was no way
to play MP3 files. I was told that BMW engineers in Germany had rigged a new vehicle to play MP3s via
the car’s built†in sound system, but that the company’s marketing and legal departments weren’t
comfortable with pushing this forward for release stateside. Even today, no new cars are sold in the
United States with bona fide MP3 players. ...
This is the world of the mafia — filled with “your money or your life” offers, governed in the end
not by courts but by the threats that the law empowers copyright holders to exercise. It is a system that
will obviously and necessarily stifle new innovation. It is hard enough to start a company. It is impossibly
hard if that company is constantly threatened by litigation.
The point is not that businesses should have a right to start illegal enterprises. The point is the
definition of “illegal.” The law is a mess of uncertainty. We have no good way to know how it should
apply to new technologies. Yet by reversing our tradition of judicial deference, and by embracing the
astonishingly high penalties that copyright law imposes, that uncertainty now yields a reality which is far
more conservative than is right. If the law imposed the death penalty for parking tickets, we’d not only
have fewer parking tickets, we’d also have much less driving. The same principle applies to innovation. If
innovation is constantly checked by this uncertain and unlimited liability, we will have much less vibrant
innovation and much less creativity.
The point is directly parallel to the crunchy†lefty point about fair use. Whatever the “real” law is,
realism about the effect of law in both contexts is the same. This wildly punitive system of regulation
will systematically stifle creativity and innovation. It will protect some industries and some creators, but
it will harm industry and creativity generally. Free market and free culture depend upon vibrant
competition. Yet the effect of the law today is to stifle just this kind of competition. The effect is to
produce an overregulated culture, just as the effect of too much control in the market is to produce an
overregulated regulated market.
The building of a permission culture, rather than a free culture, is the first important way in
which the changes I have described will burden innovation. A permission culture means a lawyer’s
culture — a culture in which the ability to create requires a call to your lawyer. Again, I am not antilawyer,
at least when they’re kept in their proper place. I am certainly not anti†law. But our profession
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has lost the sense of its limits. And leaders in our profession have lost an appreciation of the high costs
that our profession imposes upon others. The inefficiency of the law is an embarrassment to our
tradition. And while I believe our profession should therefore do everything it can to make the law more
efficient, it should at least do everything it can to limit the reach of the law where the law is not doing
any good. The transaction costs buried within a permission culture are enough to bury a wide range of
creativity. Someone needs to do a lot of justifying to justify that result.
The uncertainty of the law is one burden on innovation. There is a second burden that operates
more directly. This is the effort by many in the content industry to use the law to directly regulate the
technology of the Internet so that it better protects their content.
The motivation for this response is obvious. The Internet enables the efficient spread of content.
That efficiency is a feature of the Internet’s design. But from the perspective of the content industry,
this feature is a “bug.” The efficient spread of content means that content distributors have a harder
time controlling the distribution of content. One obvious response to this efficiency is thus to make the
Internet less efficient. If the Internet enables “piracy,” then, this response says, we should break the
kneecaps of the Internet.
The examples of this form of legislation are many. At the urging of the content industry, some in
Congress have threatened legislation that would require computers to determine whether the content
they access is protected or not, and to disable the spread of protected content. Congress has already
launched proceedings to explore a mandatory “broadcast flag” that would be required on any device
capable of transmitting digital video (i.e., a computer), and that would disable the copying of any
content that is marked with a broadcast flag. Other members of Congress have proposed immunizing
content providers from liability for technology they might deploy that would hunt down copyright
violators and disable their machines.
In one sense, these solutions seem sensible. If the problem is the code, why not regulate the
code to remove the problem. But any regulation of technical infrastructure will always be tuned to the
particular technology of the day. It will impose significant burdens and costs on the technology, but will
likely be eclipsed by advances around exactly those requirements.
In March 2002, a broad coalition of technology companies, led by Intel, tried to get Congress to
see the harm that such legislation would impose. Their argument was obviously not that copyright
should not be protected. Instead, they argued, any protection should not do more harm than good.
There is one more obvious way in which this war has harmed innovation — again, a story that
will be quite familiar to the free market crowd.
Copyright may be property, but like all property, it is also a form of regulation. It is a regulation
that benefits some and harms others. When done right, it benefits creators and harms leeches. When
done wrong, it is regulation the powerful use to defeat competitors.
[…D]espite this feature of copyright as regulation, and subject to important qualifications
outlined by Jessica Litman in her book Digital Copyright, overall this history of copyright is not bad.
[…W]hen new technologies have come along, Congress has struck a balance to assure that the new is
protected from the old. Compulsory, or statutory, licenses have been one part of that strategy. Free use
(as in the case of the VCR) has been another. But that pattern of deference to new technologies has now
changed with the rise of the Internet. Rather than striking a balance between the claims of a new
technology and the legitimate rights of content creators, both the courts and Congress have imposed
legal restrictions that will have the effect of smothering the new to benefit the old.
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The response by the courts has been fairly universal. It has been mirrored in the responses
threatened and actually implemented by Congress. […] Translation: The aim is to use the law to
eliminate competition, so that this platform of potentially immense competition, which would cause the
diversity and range of content available to explode, would not cause pain to the dinosaurs of old. There
is no one, on either the right or the left, who should endorse this use of the law. And yet there is
practically no one, on either the right or the left, who is doing anything effective to prevent it.
Conclusion
A simple idea blinds us, and under the cover of darkness, much happens that most of us would
reject if any of us looked. So uncritically do we accept the idea of property in ideas that we don’t even
notice how monstrous it is to deny ideas to a people who are dying without them. So uncritically do we
accept the idea of property in culture that we don’t even question when the control of that property
removes our ability, as a people, to develop our culture democratically. Blindness becomes our
common sense. And the challenge for anyone who would reclaim the right to cultivate our culture is to
find a way to make this common sense open its eyes.
So far, common sense sleeps. There is no revolt. Common sense does not yet see what there
could be to revolt about. The extremism that now dominates this debate fits with ideas that seem
natural, and that fit is reinforced by the RCAs of our day. They wage a frantic war to fight “piracy,” and
devastate a culture for creativity. They defend the idea of “creative property,” while transforming real
creators into modern†day sharecroppers. They are insulted by the idea that rights should be balanced,
even though each of the major players in this content war was itself a beneficiary of a more balanced
ideal. The hypocrisy reeks. Yet in a city like Washington, hypocrisy is not even noticed. Powerful lobbies,
complex issues, and MTV attention spans produce the “perfect storm” for free culture.
In August 2003, a fight broke out in the United States about a decision by the World Intellectual
Property Organization to cancel a meeting. At the request of a wide range of interests, WIPO had
decided to hold a meeting to discuss “open and collaborative projects to create public goods.” These
are projects that have been successful in producing public goods without relying exclusively upon a
proprietary use of intellectual property. Examples include the Internet and the World Wide Web, both
of which were developed on the basis of protocols in the public domain. […]
But there is one project within that list that is highly controversial, at least among lobbyists.
That project is “open source and free software.” Microsoft in particular is wary of discussion of the
subject. From its perspective, a conference to discuss open source and free software would be like a
conference to discuss Apple’s operating system. Both open source and free software compete with
Microsoft’s software. And internationally, many governments have begun to explore requirements that
they use open source or free software, rather than “proprietary software,” for their own internal uses.
I don’t mean to enter that debate here. It is important only to make clear that the distinction is
not between commercial and noncommercial software. There are many important companies that
depend fundamentally upon open source and free software, IBM being the most prominent. IBM is
increasingly shifting its focus to the GNU/Linux operating system, the most famous bit of “free
software”—and IBM is emphatically a commercial entity. Thus, to support “open source and free
software” is not to oppose commercial entities. It is, instead, to support a mode of software
development that is different from Microsoft’s.
More important for our purposes, to support “open source and free software” is not to oppose
copyright. “Open source and free software” is not software in the public domain. Instead, like
Microsoft’s software, the copyright owners of free and open source software insist quite strongly that
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the terms of their software license be respected by adopters of free and open source software. The
terms of that license are no doubt different from the terms of a proprietary software license. Free
software licensed under the General Public License (GPL), for example, requires that the source code for
the software be made available by anyone who modifies and redistributes the software. But that
requirement is effective only if copyright governs software. If copyright did not govern software, then
free software could not impose the same kind of requirements on its adopters. It thus depends upon
copyright law just as Microsoft does.
It is therefore understandable that as a proprietary software developer, Microsoft would
oppose this WIPO meeting, and understandable that it would use its lobbyists to get the United States
government to oppose it, as well. And indeed, that is just what was reported to have happened.
According to Jonathan Krim of the Washington Post, Microsoft’s lobbyists succeeded in getting the
United States government to veto the meeting. And, without U.S. backing, the meeting was canceled. I
don’t blame Microsoft for doing what it can to advance its own interests, consistent with the law. And
lobbying governments is plainly consistent with the law. There was nothing surprising about its lobbying
here, and nothing terribly surprising about the most powerful software producer in the United States
having succeeded in its lobbying efforts.
What was surprising was the United States government’s reason for opposing the meeting.
Again, as reported by Krim, Lois Boland, acting director of international relations for the U.S. Patent and
Trademark Office, explained that “open†source software runs counter to the mission of WIPO, which is
to promote intellectual†property rights.” She is quoted as saying, “To hold a meeting which has as its
purpose to disclaim or waive such rights seems to us to be contrary to the goals of WIPO.” These
statements are astonishing on a number of levels. First, they are just flat wrong. As I described, most
open source and free software relies fundamentally upon the intellectual property right called
“copyright.” Without it, restrictions imposed by those licenses wouldn’t work. Thus, to say it “runs
counter” to the mission of promoting intellectual property rights reveals an extraordinary gap in
understanding— the sort of mistake that is excusable in a first†year law student, but an embarrassment
from a high government official dealing with intellectual property issues.
Second, whoever said that WIPO’s exclusive aim was to “promote” intellectual property
maximally? As I had been scolded at the preparatory conference of WSIS, WIPO is to consider not only
how best to protect intellectual property, but also what the best balance of intellectual property is. As
every economist and lawyer knows, the hard question in intellectual property law is to find that
balance. But that there should be limits is, I had thought, uncontested. One wants to ask Ms. Boland,
are generic drugs (drugs based on drugs whose patent has expired) contrary to the WIPO mission? Does
the public domain weaken intellectual property? Would it have been better if the protocols of the
Internet had been patented?
Third, even if one believed that the purpose of WIPO was to maximize intellectual property
rights, in our tradition, intellectual property rights are held by individuals and corporations. They get to
decide what to do with those rights because, again, they are their rights. If they want to “waive” or
“disclaim” their rights, that is, within our tradition, totally appropriate. When Bill Gates gives away more
than $20 billion to do good in the world, that is not inconsistent with the objectives of the property
system. That is, on the contrary, just what a property system is supposed to be about: giving individuals
the right to decide what to do with their property. […]
There is a history of just such a property system that is well known in the Anglo†American
tradition. It is called “feudalism.” Under feudalism, not only was property held by a relatively small
number of individuals and entities. And not only were the rights that ran with that property powerful
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and extensive. But the feudal system had a strong interest in assuring that property holders within that
system not weaken feudalism by liberating people or property within their control to the free market.
Feudalism depended upon maximum control and concentration. It fought any freedom that might
interfere with that control. As Peter Drahos and John Braithwaite relate, this is precisely the choice we
are now making about intellectual property. We will have an information society. That much is certain.
Our only choice now is whether that information society will be free or feudal. The trend is toward the
feudal. […]
I understand criticism of academic utopianism. I think utopianism is silly, too, and I’d be the first
to poke fun at the absurdly unrealistic ideals of academics throughout history (and not just in our own
country’s history). But when it has become silly to suppose that the role of our government should be to
“seek balance,” then count me with the silly, for that means that this has become quite serious indeed.
If it should be obvious to everyone that the government does not seek balance, that the government is
simply the tool of the most powerful lobbyists, that the idea of holding the government to a different
standard is absurd, that the idea of demanding of the government that it speak truth and not lies is just
naïve, then who have we, the most powerful democracy in the world, become?
It might be crazy to expect a high government official to speak the truth. It might be crazy to
believe that government policy will be something more than the handmaiden of the most powerful
interests. It might be crazy to argue that we should preserve a tradition that has been part of our
tradition for most of our history — free culture. If this is crazy, then let there be more crazies. Soon.
There are moments of hope in this struggle. And moments that surprise. When the FCC was
considering relaxing ownership rules, which would thereby further increase the concentration in media
ownership, an extraordinary bipartisan coalition formed to fight this change. For perhaps the first time
in history, interests as diverse as the NRA, the ACLU, Moveon.org, William Safire, Ted Turner, and Code
Pink Women for Peace organized to oppose this change in FCC policy. An astonishing 700,000 letters
were sent to the FCC, demanding more hearings and a different result.
This activism did not stop the FCC, but soon after, a broad coalition in the Senate voted to
reverse the FCC decision. The hostile hearings leading up to that vote revealed just how powerful this
movement had become. There was no substantial support for the FCC’s decision, and there was broad
and sustained support for fighting further concentration in the media.
But even this movement misses an important piece of the puzzle. Largeness as such is not bad.
Freedom is not threatened just because some become very rich, or because there are only a handful of
big players. […] The danger in media concentration comes not from the concentration, but instead from
the feudalism that this concentration, tied to the change in copyright, produces. It is not just that there
are a few powerful companies that control an ever expanding slice of the media. It is that this
concentration can call upon an equally bloated range of rights—property rights of a historically extreme
form — that makes their bigness bad. […]
As I write these final words, the news is filled with stories about the RIAA lawsuits against
almost three hundred individuals. Eminem has just been sued for “sampling” someone else’s music. The
story about Bob Dylan “stealing” from a Japanese author has just finished making the rounds. An insider
from Hollywood — who insists he must remain anonymous — reports “an amazing conversation with
these studio guys. They’ve got extraordinary [old] content that they’d love to use but can’t because
they can’t begin to clear the rights. They’ve got scores of kids who could do amazing things with the
content, but it would take scores of lawyers to clean it first.” Congressmen are talking about deputizing
computer viruses to bring down computers thought to violate the law. Universities are threatening
expulsion for kids who use a computer to share content. […]
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I’ve told a dark story. The truth is more mixed. A technology has given us a new freedom.
Slowly, some begin to understand that this freedom need not mean anarchy. We can carry a free
culture into the twenty†first century, without artists losing and without the potential of digital
technology being destroyed. It will take some thought, and more importantly, it will take some will […]
Common sense must revolt. It must act to free culture. Soon, if this potential is ever to be realized.
• “The Tyranny of Copyright?,” by Robert S. Boynton
[Robert S. Boynton, director of the graduate magazine journalism program at New York
University, is writing a book about American literary journalism.]
Last fall, a group of civic†minded students at Swarthmore College received a sobering lesson in
the future of political protest. They had come into possession of some 15,000 e†mail messages and
memos †presumably leaked or stolen †from Diebold Election Systems, the largest maker of electronic
voting machines in the country. The memos featured Diebold employees’ candid discussion of flaws in
the company’s software and warnings that the computer network was poorly protected from hackers. In
light of the chaotic 2000 presidential election, the Swarthmore students decided that this information
shouldn’t be kept from the public. Like aspiring Daniel Ellsbergs with their would — be Pentagon Papers,
they posted the files on the Internet, declaring the act a form of electronic whistle†blowing.
Unfortunately for the students, their actions ran afoul of the 1998 Digital Millennium Copyright
Act (D.M.C.A.), one of several recent laws that regulate intellectual property and are quietly reshaping
the culture. Designed to protect copyrighted material on the Web, the act makes it possible for an
Internet service provider to be liable for the material posted by its users †an extraordinary burden that
providers of phone service, by contrast, do not share. Under the law, if an aggrieved party (Diebold, say)
threatens to sue an Internet service provider over the content of a subscriber’s Web site, the provider
can avoid liability simply by removing the offending material. Since the mere threat of a lawsuit is
usually enough to scare most providers into submission, the law effectively gives private parties veto
power over much of the information published online †as the Swarthmore students would soon learn.
Not long after the students posted the memos, Diebold sent letters to Swarthmore charging the
students with copyright infringement and demanding that the material be removed from the students’
Web page, which was hosted on the college’s server. Swarthmore complied. The question of whether
the students were within their rights to post the memos was essentially moot: thanks to the Digital
Millennium Copyright Act, their speech could be silenced without the benefit of actual lawsuits, public
hearings, judges or other niceties of due process.
After persistent challenges by the students †and a considerable amount of negative publicity for
Diebold †in November the company agreed not to sue. To the delight of the students’ supporters, the
memos are now back on their Web site. But to proponents of free speech on the Internet, the story
remains a chilling one.
Siva Vaidhyanathan, a media scholar at New York University, calls anecdotes like this “copyright
horror stories,” and there have been a growing number of them over the past few years. Once a dry and
seemingly mechanical area of the American legal system, intellectual property law can now be found at
the center of major disputes in the arts, sciences and †as in the Diebold case †politics. Recent cases
have involved everything from attempts to force the Girl Scouts to pay royalties for singing songs around
campfires to the infringement suit brought by the estate of Margaret Mitchell against the publishers of
Alice Randall’s book The Wind Done Gone (which tells the story of Mitchell’s Gone With the Wind from a
slave’s perspective) to corporations like Celera Genomics filing for patents for human genes. The most
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publicized development came in September, when the Recording Industry Association of America began
suing music down†loaders for copyright infringement, reaching out†of†court settlements for thousands
of dollars with defendants as young as 12. And in November, a group of independent film producers
went to court to fight a ban, imposed this year by the Motion Picture Association of America, on sending
DVD’s to those who vote for annual film awards.
Not long ago, the Internet’s ability to provide instant, inexpensive and perfect copies of text,
sound and images was heralded with the phrase “information wants to be free.” Yet the implications of
this freedom have frightened some creators†particularly those in the recording, publishing and movie
industries †who argue that the greater ease of copying and distribution increases the need for more
stringent intellectual property laws. The movie and music industries have succeeded in lobbying
lawmakers to allow them to tighten their grips on their creations by lengthening copyright terms. The
law has also extended the scope of copyright protection, creating what critics have called a
“paracopyright,” which prohibits not only duplicating protected material but in some cases even gaining
access to it in the first place. In addition to the Digital Millennium Copyright Act, the most significant
piece of new legislation is the 1998 Copyright Term Extension Act, which added 20 years of protection to
past and present copyrighted works and was upheld by the Supreme Court a year ago. In less than a
decade, the much†ballyhooed liberating potential of the Internet seems to have given way to something
of an intellectual land grab, presided over by legislators and lawyers for the media industries.
In response to these developments, a protest movement is forming, made up of lawyers,
scholars and activists who fear that bolstering copyright protection in the name of foiling “piracy” will
have disastrous consequences for society †hindering the ability to experiment and create and eroding
our democratic freedoms. This group of reformers, which Lawrence Lessig, a professor at Stanford Law
School, calls the “free culture movement,” might also be thought of as the “Copy Left” (to borrow a term
originally used by software programmers to signal that their product bore fewer than the usual amount
of copyright restrictions). Lawyers and professors at the nation’s top universities and law schools, the
members of the Copy Left aren’t wild†eyed radicals opposed to the use of copyright, though they do
object fiercely to the way copyright has been distorted by recent legislation and manipulated by
companies like Diebold. Nor do they share a coherent political ideology. What they do share is a fear
that the United States is becoming less free and ultimately less creative. While the American copyright
system was designed to encourage innovation, it is now, they contend, being used to squelch it. They
see themselves as fighting for a traditional understanding of intellectual property in the face of a radical
effort to turn copyright law into a tool for hoarding ideas. “The notion that intellectual property rights
should never expire, and works never enter the public domain †this is the truly fanatical and
unconstitutional position,” says Jonathan Zittrain, a co†founder of the Berkman Center for Internet and
Society at Harvard Law School, the intellectual hub of the Copy Left.
Thinkers like Lessig and Zittrain promote a vision of a world in which copyright law gives
individual creators the exclusive right to profit from their intellectual property for a brief, limited period
†thus providing an incentive to create while still allowing successive generations of creators to draw
freely on earlier ideas. They stress that borrowing and collaboration are essential components of all
creation and caution against being seduced by the romantic myth of “the author”: the lone garretdwelling
poet, creating masterpieces out of thin air. “No one writes from nothing,” says Yochai Benkler,
a professor at Yale Law School. “We all take the world as it is and use it, remix it.”
Where does the Copy Left believe a creation ought to go once its copyright has lapsed? Into the
public domain, or the “cultural commons” †a shared stockpile of ideas where the majority of America’s
music and literature would reside, from which anyone could partake without having to pay or ask
permission. James Boyle, a professor at Duke Law School, notes that the public domain is a necessity for
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social and cultural progress, not some sort of socialist luxury. “Our art, our culture, our science depend
on this public domain,” he has written, “every bit as much as they depend on intellectual property.”
In opposition to the cultural commons stands the “permission culture,” an epithet the Copy Left
uses to describe the world it fears our current copyright law is creating. Whereas you used to own the
CD or book you purchased, in the permission culture it is more likely that you’ll lease (or “license”) a
song, video or e†book, and even then only under restrictive conditions: read your e†book, but don’t copy
and paste any selections; listen to music on your MP3 player, but don’t bum it onto a CD or transfer it to
your stereo. The Copy Left sees innovations like iTunes, Apple’s popular online music store, as the first
step toward a society in which much of the cultural activity that we currently take for granted †reading
an encyclopedia in the public library, selling a geometry textbook to a friend, copying a song for a sibling
†will be rerouted through a system of micropayments in return for which the rights to ever smaller
pieces of our culture are doled out. “Sooner or later,” predicts Miriam Nisbet, the legislative counsel for
the American Library Association, “you’ll get to the point where you say, ‘Well, I guess that 25 cents isn’t
too much to pay for this sentence,’ and then there’s no hope and no going back.”
There is a growing sense of urgency among the members of the Copy Left. They worry that if
they do not raise awareness of what is happening to copyright law, Americans will be stuck forever with
the consequences of decisions now being made †and laws being passed †in the name of preventing
piracy. “We are at a moment in our history at which the terms of freedom and justice are up for grabs,”
Benkler says. He notes that each major innovation in the history of communications †the printing press,
radio, telephone †was followed by a brief period of openness before the rules of its usage were
determined and alternatives eliminated. “The Internet,” he says, “is in that space right now.”
America has always had an ambivalent attitude toward the notion of intellectual property.
Thomas Jefferson, for one, considered copyright a necessary evil: he favored providing just enough
incentive to create, nothing more, and thereafter allowing ideas to flow freely as nature intended. “If
nature has made anyone thing less susceptible than all others of exclusive property,” he wrote, “it is the
action of the thinking power called an idea, which an individual may exclusively possess as long as he
keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone.” His
conception of copyright was enshrined in Article 1, Section 8 of the Constitution, which gives Congress
the authority to “promote the progress of science and useful arts, by securing for limited times to
authors and inventors the exclusive right to their respective writings and discoveries.”
But Jefferson’s vision has not fared well. As the country’s economy developed from agrarian to
industrial to “information,” ideas took on greater importance, and the demand increased for stronger
copyright laws. In 1790, copyright protection lasted for 14 years and could be renewed just once before
the work entered the public domain. Between 1831 and 1909, the maximum term was increased from
28 to 56 years. Today, copyright protection for individuals lasts for 70 years after the death of the
author; for corporations, it’s 95 years after publication. Over the past three decades, the flow of
material entering the public domain has slowed to a trickle: in 1973, according to Lessig, more than 85
percent of copyright owners chose not to renew their copyrights, allowing their ideas to become
common coin; since the 1998 Copyright Term Extension Act lengthened present and past copyrights for
an additional 20 years, little material will enter the public domain any time soon.
Some of the changes that expanded copyright protection were made with an understanding of
their effects; what also troubles the Copy Left, however, are the unintended consequences of seemingly
innocuous tweaks in copyright legislation. In particular, two laws that were passed years before the
creation of the Internet helped set the stage for today’s copyright bonanza. Before the 1909 Copyright
Act, copyright was construed as the exclusive right to “publish” a creation; but the 1909 law changed the
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wording to prohibit others from “copying” one’s creation †a seemingly minor change that thereafter
linked copyright protection to the copying technology of the day, whether that was the pen, the
photocopy machine, the VCR or the Internet. In 1976, a revision to the law dispensed with the
requirement of formally registering or renewing a copyright in order to comply with international
copyright standards. Henceforth, everything †from e†mail messages to doodles on a napkin †was
automatically copyrighted the moment it was “fixed in a tangible medium.”
The true significance of these two laws didn’t become apparent until the arrival of the Internet,
when every work became automatically protected by copyright and every use of a work via the Internet
constituted a new copy. “Nobody realized that eliminating those requirements would create a
nightmare of uncertainty and confusion about what content is available to use,” Lessig explains, “which
is a crucial question now that the Internet is the way we gain access to so much content. It was a kind of
oil spill in the free culture.”
Lessig is one of the most prominent and eloquent defenders of the Copy Left’s belief that
copyright law should return to its Jeffersonian roots. “We are invoking ideas that should be central to
the American tradition, such as that a free society is richer than a control society,” he says. “But in the
cultural sphere, big media wants to build a new Soviet empire where you need permission from the
central party to do anything.” He complains that Americans have been reduced to “an Oliver Twist†like
position,” in which they have to ask, “Please, sir, may I?” every time we want to use something under
copyright †and then only if we are fortunate enough to have the assistance of a high†priced lawyer.
In October 2002, Lessig argued before the Supreme Court in Eldred v. Ashcroft, which concerned
a challenge to the Copyright Term Extension Act. On behalf of the plaintiffs, Lessig argued that
perpetually extending the term of copyright was a violation of the Constitution’s requirement that
copyright exist for “a limited time.” The court responded that although perhaps unwise on policy
grounds, granting such extensions was within Congress’s power. It was a major setback for the Copy
Left. Given the Eldred decision, there is nothing to stop a future Congress from extending copyright’s
term again and again.
Lessig’s efforts haven’t been limited to the courtroom. In 2001, he was part of a group that
founded an organization called Creative Commons, which offers individual creators the ability to
carefully calibrate the level of control they wish to maintain over their works. The organization services
the needs of, say, musicians who want rappers and DJ’s to be able to download and remix their music
without legal trouble or of writers who want their works republished without charge, but only by
nonprofit publications. The Commons has developed a software application for the Web that allows
copyright holders who do not want to exercise all of the restrictions of copyright law to dedicate their
work to the public domain or license it on terms that allow copying and creative reuses. The aim of
Creative Commons is not only to increase the sum of raw source material online but also to make it
cheaper and easier for other creators to locate and access that material. This will enable people to use
the Internet to find, for example, photographs that are free to be altered or reused or texts that may be
copied, distributed or sampled †all by their authors’ permission. The Creative Commons now has a
presence in 10 countries, including Brazil, whose minister of culture, the musician Gilberto Gil, plans to
release some of his songs under the Creative Commons license so that others may freely borrow from
them. Creative Commons is currently talking to Amazon and others about a plan to release out†of†print
books under Creative Commons licenses.
One of the central ideas of the Copy Left is that the Internet has been a catalyst for reengaging
with the culture †for interacting with the things we read and watch and listen to, as opposed to just
sitting back and absorbing them. This vision of how culture works stands in contrast to what the Copy
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Left calls the “broadcast model” †the arrangement in which a small group of content producers
disseminate their creations (television, movies, music) through controlled routes (cable, theaters, radioâ€
TV stations) to passive consumers. Yochai Benkler, the law professor at Yale, argues that people want to
be more engaged in their culture, despite the broadcast technology, like television, that he says has
narcotized us. “People are users,” he says. “They are producers, storytellers, consumers, interactors â€
complex, varied beings, not just people who go to the store, buy a packaged good off the shelf and
consume.”
[…] Benkler’s belief in the importance of creating things in common rests on more than
anecdotal evidence. What makes his argument more than wishful thinking, he said, is that he has some
economic evidence for his view. “Let’s compare a few numbers,” he said. “How much do people pay the
recording industry to listen to music versus how much people pay the telephone industry to talk to their
friends and family? The recording industry is a $12 billion a year business, compared with the telephone
business, which is a more than $250 billion a year business. That is what economists call a ‘revealed
willingness to pay,’ a clear preference for a technology that allows you to participate in work, socializing
and interaction in general, over a technology that allows you to be a passive consumer of a packaged
good. Is that a study of human nature? No. Is it an economic measure that would suggest there is a lot
of demand out there for speaking and listening to others? Yes.”
According to Benkler, the cultural commons not only offers a better model for creativity; it
makes good economic sense. Like Lessig and other members of the Copy Left, he takes his bearings from
the free software movement and views the success of products like Linux and services like Google as
evidence of a viable collaborative (or “peer to peer”) model for producing and sharing ideas †a model
that will augment and, in some cases, replace the current model. (He concedes that some products, like
novels and blockbuster movies, will never be produced peer to peer, though they will draw on the work
of artists before them.) Benkler predicts that the recording industry will be one of the first businesses to
go. “All it does is package and sell goods,” he said, “which is technically an unfeasible way of continuing.
They are trying their best to legislate the environment to change, but that doesn’t mean we have to let
them.”
The battle between the Copy Left and its opponents is as much a clash of worldviews as of legal
doctrine. Aligned against the Copy Left are those who sympathize with the romantic notion of
authorship and view the culture as a market in which everything of value should be owned by someone
or other. Jane Ginsburg, a professor at Columbia Law School who specializes in copyright law, fears that
in the Copy Left’s rush to secure the public domain, it gives short shrift to the author. A self†described
“copyright enthusiast,” Ginsburg considers the author the moral center of copyright law and questions
equating copyright control with corporate greed. “Copyright cannot be understood merely as a
grudgingly tolerated way station on the road to the public domain,” she writes in a recent article titled
“The Concept of Authorship in Comparative Copyright Law.” “Because copyright arises out of the act of
creating a work, authors have moral claims that neither corporate intermediaries nor consumer endusers
can (straight†facedly) assert.”
Ginsburg and others embrace many elements of the “permission society” demonized by the
Copy Left and cite developments like the iTunes store as a sign of greater consumer choice and freedom.
In his book “Copyright’s Highway,” Paul Goldstein, a professor at Stanford Law School, writes that “the
logic of property rights dictates their extension into every corner in which people derive enjoyment and
value from literary and artistic works.” He characterizes the permission society as a “celestial jukebox” in
which access to every creation †music, literature, movies, art†is available to anyone for a price.
An entire “digital rights management” industry has arisen to bring this vision to fruition, each
company calibrating a particular license through a system of micropayments †play a song on your
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computer for one price; transfer it to your MP3 player for a slightly higher fee. Goldstein argues that the
scheme of a business like iTunes is actually more efficient and democratic than the commons model
championed by the Copy Left. “The problem with the commons is that it doesn’t take into consideration
the direction of the payment; it doesn’t reveal what kind of culture gets used and what kind doesn’t,” he
says. “I think it is good to have a price tag attached to each use because it tells producers what
consumers want; it lets them vote with their purchase for the kinds of culture they want.”
But the Copy Left is convinced that there is a better way for the entertainment industry to adapt
to the Internet age while still paying its artists their due. William Fisher, director of the Berkman Center,
has spent the last three years devising an alternative compensation system that would enable the
entertainment industry to restructure its business model without resorting to cumbersome
micropayments. He has worked out a modified version of the system that artists’ advocacy groups
currently use to make sure that composers are paid when their music is performed or recorded.
According to Fisher’s plan, all works capable of being transmitted online would be registered with a
central office (whether government or independent is unclear). The central office would then monitor
how frequently a work is used and compensate the creators on that basis. The money would come from
a tax on various content†related devices, like DVD burners, blank CD’s or digital recorders. It is a brave
proposal in a political culture that is allergic to taxes and uncomfortable with complex solutions. Still, if
his numbers do indeed add up, Fisher’s proposal might be the best thing that ever happened to the
cultural commons: the creators would be paid, while every individual would have unlimited access to
every cultural creation.
Fisher and Charles Nesson, his colleague at Harvard Law School, have showed this proposal to
movie executives and lawyers for several media conglomerates. Fisher says that his ideas have been
received with great interest by the very industries †music, home video †that see their business models
disintegrating before their eyes. When asked whether he thinks his ambitious scheme has a chance,
Fisher says that the likeliest possibility would be for it to be adopted in countries that are neither so
developed that they have signed on to international copyright protocols nor so undeveloped that they
are desperate to do so. Only second†world countries, like Croatia or Brazil, he speculates, are unfettered
enough to try something new. “The hope is in the rain forest,” he says, in countries that “are more like
the United States was before 1890, when we were a ‘pirate’ nation.”
And in the United States, is there any future for this sort of payment system? Perhaps when the
various current schemes fail, Fisher’s plan will seem more attractive, he says. “What is involved here is
nothing less than the shape of our culture and the way we think of ourselves as citizens,” he adds. He
describes a recent letter he received from a supporter of his work. “When they come for my guns and
my music, they’d better bring an army,” it read. “People are used to being creatively engaged with the
culture,” Fisher explains. “They won’t let someone legislate that away.”
The future of the Copy Left’s efforts is still an open question. James Boyle has likened the
movement’s efforts to establish a cultural commons to those of the environmental movement in its
infancy. Like Rachel Carson in the years before Earth Day, the Copy Left today is trying to raise
awareness of the intellectual “land” to which they believe we ought to feel entitled and to propose
policies and laws that will preserve it. Just as the idea of environmentalism became viable in the wake of
the last century’s advances in industrial production, the growth of this century’s information
technologies, Boyle argues, will force the country to address the erosion of the cultural commons. “The
environmentalists helped us to see the world differently,” he writes, “to see that there was such a thing
as ‘the environment’ rather than just my pond, your forest, his canal. We need to do the same thing in
the information environment. We have to ‘invent’ the public domain before we can save it.”
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Notes