September 3, 2003

The Future of Ideas (Belongs to Disney)

by Scott Rettberg · , 8:49 pm

I recently read Lawrence Lessig’s The Future of Ideas: The Fate of the Commons in a Connected World, a properly alarmist text about the Internet, the law, copyright, and the slow steady creep towards a future in which every text, film, song, picture, and thought that runs across your consciousness is licensed property, in which the spectrum is owned by highest bidder, and in which innovation is patented to such an extent that new innovation becomes nearly impossible.

Lessig is a constitutional scholar, a Stanford law professor who is scared shitless about the poorly-thought controls currently and relentlessly being placed on our intellectual lives by “the extremists in power.” Lessig was the chief architect of Eldred v. Ashcroft, the legal action which attempted to overturn the Copyright Term Extension Act, and the chair of The Creative Commons Project. I won’t give Lessig’s book a proper review in this forum, but I would like to highlight a few points, and suggest that, as new media creators, many Grand Text Auto participants and readers might want to take some proactive steps contra the current intellectual property paradigm.

Lessig argues convincingly that we are entering a period in which the spirit of innovation, and for lack of a better word, generosity, that arguably characterized the early Web, is being replaced by a series of efforts to lock down the physical, code, and content layers of the Internet (and, in a larger sense, our cultural heritage writ large).

In Article 1, Section 8, the Framers of the US Constitution established the original American version of copyright: “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.” The intention of the Framers, then, was to promote progress by allowing authors and creators an explicitly limited amount of time in which they would be the exclusive owners of the right to publish their work. The idea was that authors, for instance, would be able to earn some income from their work, which would then incentivize them to create more of it. The original copyright law set this term of exclusivity at 14 years. Under most circumstances, this seems like a reasonable amount of time in which to garner some income from work. That 14 year term has been stretching ever since. The 1998 Sonny Bono Copyright Term Extension Act most recently extended copyright across the board for another 20 years. While 200 or so years ago, copyrighted works entered the public domain within a single generation, the term of copyright for a work published since 1978 is now the author’s life plus an additional 70 years after the author’s death (corporate works are copyrighted for 95-120 years). The Supreme Court recently upheld the extenstion, and interpreted the Constitution in such a way that we could justifiably expect another extension (lobbied for by the film industry) to follow this one, ad infinitum.

I’m a writer, and I value the idea that I should own or be able to sell the right to publish my work for a limited amount of time. But frankly, I’d prefer that the amount of time not extend to 120 years from now, when the majority of the universe will have forgotten it, and will likely not think to republish it.

Sure, on first hearing, it sounds great to own your “intellectual property” for a Methuselah’s age. How wonderful to own what you’ve written even a lifetime after you’re dead. Your house and car will undoubtedly be sold off by then, but your corpse and your grandkids will still own a piece of your mind. Unfortunately, more likely than not, that piece will simply be forgotten.

Functionally, the limitless extension of copyright serves not the writer whose work has gone out of print, or whose work of electronic writing is owned by a defunct corporation, but only very large publishing and entertainment companies. The most recent extension of copyright was pushed by the film industry, in particular the Disney corporation, which filled legislator’s heads with visions of Mickey Mouse porn should the American public be granted access to the cultural products of the 1920s and 30s. Lessig and others have pointed out the irony of the fact that Disney, which made much of its billions on the back of the public domain (i.e. Tarzan, Peter Pan, Cinderella, etc.). In his blog, Lessig details Disney’s efforts, not only to claim and profit from these works in the Public Domain, but also to deny others access to them.

Lessig’s book details not only the draconian copyright regime for printed works, but other legislation and practices, such as provisions of the DMCA and contemporary software patenting practices, which have an increasingly stifling effect on innovation. This weekend in Chicago, I ran across one simple example of how these practices are destructive — I was talking with Irina Goloubeva, a Russian scholar who specializes in James Joyce, about the 1967 film adaptation of Ulysses, directed by Joseph Strick. Irina had heard of the film, and wanted to purchase it, and had found it available on DVD on Amazon. Were she to purchase it, however, it would not work in her Russian DVD player, because of the Zone controls placed on the DVD by its distributor. Thus, in the name of intellectual property, a scholar is denied access to an important component of her work. Examples of this type of restricted access are multitudinous, across all media.

I read in the paper (I think the Times) a couple weeks back that every US university with Internet access is now required to designate an Intellectual Property Officer (the hot new IPO for the 21st century), essentially to help the recording industry police filesharing. We’re in an interesting time, one that may spawn some generational conflict. Filesharing, Napster and post, is a common cultural practice in the generation one removed from mine. This practice (theft, piracy, sharing, what you will) has been criminalized, but most of the “on the street” interviews I’ve read and what I can report from informal polls of my students seem to indicate that the generation now coming of age views filesharing as no more criminal than standard recording industry practices (charging $15 for a Brittany Spears CD and blowing millions of dollars promoting it at the expense of hundreds of other worthy musicians who go unheard just may be more malevolent than downloading a Robyn Hitchcock tune without paying for it). One can hope that this generation of fileswappers will organize and resist the current paradigm.

So what’s to be done? Lessig and others are trying to push legislation that will make certain texts available (such as the “Eric Eldred Act” / Public Domain Enhancement Act). The other approach, and probably the one most relevant to creators of new media writing, is to take back control of the distribution of your work and ideas by utilizing a Creative Commons license. The CC licenses, developed by a team of lawyers that includes Lessig, Jamie Boyle, and others, enable you, as a content creator or publisher, to specify more clearly the rights you intend to give over the public, and those you reserve. For instance, on my weblog, I use a CC license that states explicity that anyone may use and distribute my work for noncommercial purposes, but that attribution is required. CC licenses clarify and expand the notion of “fair use” — which has narrowed in recent years to the extent that it’s nearly impossible for a professor to put together a photocopied course packet without going through a long process of correspondence to ask permission from each and every author and publisher whose work he or she excerpts. I’d encourage all new media authors to utilize such a license for work they publish on the Web, and to stay in touch with Lessig’s blog. As Lessig demonstrates in the conclusion of his book, this is an issue that crosses traditional political lines. Both liberals concerned with access and the free flow of ideas and conservatives concerned with upholding the Constitution, as the Framers intended, should be angry about the status quo.

I’m interested in reading what others think about this issue. How much of an interest are you taking in the disposition of your ideas?

10 Responses to “The Future of Ideas (Belongs to Disney)”

  1. andrew Says:

    First thing we should do is get a Creative Commons license for this blog! (Noah had suggested that from the start, but we never got around to it.)

  2. nick Says:

    Andrew, you’re right. I’d support GTxA having a non-commercial, attribution-required license. I was going to add one explicitly to my Chris Marker review, but it seemed silly.

    The Creative Commons project is a great one that will be a real benefit for intellectuals and all types of creative culture workers. However, we shouldn’t fool ourselves into thinking that such licensing on our part will manage, by itself, to relax Disney’s death grip on the world’s mind. We also will have to work toward violent overthrow of the Mouse.

  3. William Says:

    Is it a matter of overthrowing the Mouse, or the fictions of intellectual property on which the Mouse thrives?

    This is a little thought experiment I often throw out for consideration. I’ve had dreams with trademarked and copyright-controlled material in them. I’ve had dreams with characters from videogmaes, sitcoms, film, literature, comic books etc. – all the flotsam and jetsam of popular culture washes up on the shores of my subconscious.

    And I can’t document them, visually. I cannot produce and distribute a film of my own dreams without running into serious legal difficulties.

    When the main character in Wim Wenders’ “Kings of the Road” said, “The Americans have colonized our subconscious,” I don’t think he realized how literally true that statement would become.

  4. Jill Says:

    And MoveableType will even do it almost-automatically for you if you just tick off that preference.

    Mind you, I’ve still not quite done it yet myself. I know how easy it is – but I can’t make up my mind which licence I want. So instead of spend 20 minutes working it out I’m unlicenced.

    I get confused, too, because copyright legislation is different in the US, in the EU and in Norway and though I at times have tried hard to understand it all, once even going so far as to walk all the way over to the law faculty bookshop and BUYING a 500 page book on digital copyright in Norway (I think I must have read some of it), I don’t understand it. I read the first fifty pages or so of Lessig, and he writes so it makes sense (it was entertaining, even, I only stopped because I went on holiday and it was a hardback too heavy to carry), but then trying to figure out all the European acronyms that cropped up on the web (DCwhatever?), and how that makes any difference, and how you relate Lessig’s arguments about copyright being in breach of the intentions of the American constitution to what I think I should be able to do in Norway just gets absolutely byzantine and so each time I try I give up.

    I did buy a zone-free DVD-player though. They’re not allowed to sell them zone-free, here (anywhere?) but they’re allowed to sell them with a little bit of paper that has the cheat codes that tell you how to set it to zone zero. Which will play anything.

    I totally gave up on trying to understand the legal details of that.

  5. scott Says:

    If everybody at GTA agrees on the non-com w/ attrib, it’s just a matter of dropping in the XML on the template.

    I think that the legal details are intentionally byzantine and confusing, Jill. The main point of Lessig’s book is, essentially, that these systems of control are being put into place, baldly serving no one but powerful lobbies, and that “we the people” are doing nothing about it. I do know that some things are slightly better in the EU, or at least that there’s a bit more visible resistance, but I think William’s also correct that there’s some colonizing going on.

    There are some promising signs though — open source software is thriving (even if the WIPO finds it offensive) and I heard on the radio this morning that Universal, one of the big recording industry giants, is slashing prices on CDs in an attempt to woo back filesharers. It’s a kind of acknowledgement that the rejection of recording industry practices wasn’t just a matter of a few n’eer do well pirates, but one that is widespread among consumers.

  6. Jeremy Bushnell Says:

    Another real promising sign is the recent announcement about the creation of the BBC Creative Archive:

    Greg Dyke, creative director of the BBC:

    “Just imagine your child comes home from school with homework to make a presentation to the class on lions, or dinosaurs, or Argentina or on the industrial revolution.

    “He or she goes to the nearest broadband connection – in the library, the school or even at home – and logs onto the BBC library.

    “They search for real moving pictures which would turn their project into an exciting multi-media presentation.

    “They download them and, hey presto, they are able to use the BBC material in their presentation for free.

    “Now that is a dream which we will soon be able to turn into reality.

    “We intend to allow parts of our programmes, where we own the rights, to be available to anyone in the UK to download so long as they don’t use them for commercial purposes.

    “Under a simple licensing system, we will allow users to adapt BBC content for their own use.

    “We are calling this the BBC Creative Archive.

    “When complete, the BBC will have taken a massive step forward in opening our content to all – be they young or old, rich or poor.

    “But then it’s not really our content – the people of Britain have paid for it and our role should be to help them use it.”

    This also:

    “I believe that we are about to move into a second phase of the digital revolution, a phase which will be more about public than private value; about free, not pay services; about inclusivity, not exclusion.

    “In particular, it will be about how public money can be combined with new digital technologies to transform everyone’s lives.”

    Those of you interested in Creative Commons might also enjoy reading about copyleft, a similar concept, which dates back to 1983, according to the timeline of information sharing.

  7. Jill Says:

    The BBC project sounds brilliant, except of course there’ll still be a divide, only it will be different: UK taxpayers paid for the BBC to make the material so now they get it, but people not in the UK won’t.

    I suppose that’s already how the world works though, isn’t it. Norwegians happen to have oil, parental leave, free health care (I’m not mentioning the queues) and free tuition and they obviously try to stop people from other countries from gaining access to these goods, services and benefits.

    The difference is just that now we might be going to start doing the same with information. And of course, with digital copies, information doesn’t HAVE to be scarce in the way that goods and services generally are.

    It’s still far better than locking all the information up, completely.

  8. Scott Says:

    I wonder if anyone at NPR and PBS is paying attention to the BBC. Interesting changes might also take place if one the more left-leaning candidates in the US Presidential election took office — both Howard Dean and Dennis Cunich have done guest stints on Lessig’s blog — which suggests that at least they’re aware of the issues, and might let Lessig et al. have a seat at the table.

    There’s a lot of room for debate about the remedy (or remedies) — for instance, I think that the copyright solution Lessig proposes in his book — a five year renewable term of copyright, requiring registration and a nominal fee for each renewal, is too extreme, and would be a pain in the ass for writers (can you imagine registering each and every blog post?). I like the fact that my work is automatically copyrighted and that I don’t need to fill out a form to make it so. But I’d be happy for that protection to last twenty years and no longer. My feeling is that some rights do need to be retained by the authors of a work, but only for the reasons that Jefferson and the boys intended — in order to make writing and creating viable professions that encourage and further progress. The problem is that in our contemporary capitalist society, we’ve confused progress with the acquisition and protection of property. Even post-cold-war, the US mentality seems to be property good, anything that has a whiff of socialism bad. This is the same reason why Jill gets free tuition and healthcare while a lot of my friends are up to their neck in student loan debt and look both ways about four times before crossing the street. In the US, property has been elevated to the point that it has obfuscated the idea of the “general good.”

    I like CC licenses better than copylefting because authors can retain some IP rights while picking and choosing those that they give over to the public. Copylefting/GNU licenses work great for software, and perhaps for things like image archives, sound archives, different kinds of “materials” databases. It might not work so well for novels.

  9. Ben Says:

    What a pile of drivel. No matter how many business models the record industry and hollywood create, no matter how many ways they distribute their products, no matter how many opportunities are created for you to publish and create your own work – free is always going to be preferred. Free always crowds out for-pay. Lessig’s book is an elaborate hoax – a pseudo-philosophical, rambling series of half truths and rationalizations for why creators of so-called “technology” (i.e. computer programmers) should have the right to build industries and businesses using the decades of investment by so-called “creatives” such as composers, songwriters and filmakers, without paying them for the privilege. Why should the work of creative people be free because you figured out how to steal it? Why is it MY work that won’t be paid for? What intellectual BS. The music industry has created what is without question the greatest and most successful consumer product in the history of commerce which enjoys worldwide acclaim and success and releases thousands of records every year in every conceivable genre and at every conceivable price point. But free is better!!!! So let’s kill them dang record companies!

    Compulsory royalties is garbage. I’ve asked every computer programmer I know if they would work knowing their only compensation was to submit a claim to a tribunal once a year and wait three years to see what piece of the royalty pool was theirs. They all just laughed and said, “what, are you kidding? That’s what we want YOU to do!” But somehow Lessig thinks musicians, authors and filmakers will be happy to spend tens of millions creating their products, allowing them to be endlessly copied and distributed over the internet and then earn their living by filing annual claims with a royalty tribunal. And all those companies that claim a compulsory license – like they’re all going to just line up and pay on time and account fairly to something over fifty thousand creators? They don’t do it now and they have the threat of major corporations going against them – you think they’re going to do it for me? You think Fox is going to put up $150mm to make Spiderman 2 hoping the royalty tribunal will give them back their investment – why doesn’t Microsoft make its product public domain instead. This is one of those ideas that sounds so logical and sensible that it seems no-brainer until someone tells you that its YOUR job that is going to be paid this way instead of mine.

    You say they “don’t get it” – so we should steal your stuff! “You didn’t react fast enough!” – so we should be able to steal your stuff! “Your services are poor substitutes for Napster” – so we should steal your stuff! “There aren’t enough songs on your service” – so we should steal your stuff! “I want to copy them on more devices” – so we should steal your stuff! “You make too much money” – so we should steal your stuff! “You screw the artists (buying that hoakum lock stock and PR machine)” – so we should steal your stuff.

    So an industry that employs millions of people and has created one of the greatest cultural and business models the world has ever known is now subjected to death by techno-babble. Why? For no better reason than THEY CAN! Free music is just sampling and actually grows record sales – my God you would believe there are weapons of mass destruction in Iraq and Sadaam Hussein ordered the planes into New York. 35% drop in unit sales, over 500 bands released by their labels, thousands of layoffs and now the companies are giving up and merging what’s left.

    Congratulations idiots – but I guess it doesn’t matter because it wasn’t YOUR job downsized due to internet theft and Lessig’s convenient arguments to justify theft.

    Lessig says the old tries to control the new – I say the new wants a free lunch and should step up and earn their way just like everyone else before them.

    Don’t buy into this twaddle – it’s only about one thing – the tech industry doesn’t want to pay for the products it is exploiting. It’s really that simple.

    The rest of the book – all the scarry stuff – is just Lessig’s fertile imagination watered by half a dozen or so anecdotes which he wants you to believe are just indicative of a huge wellspring of insane corporate behavior – but there is no fountain of litigation, there is no big brother, there is no corporation shooting itself in the foot by chasing stupid minor infractions because of a bizarre adherence to micro-managing copyright enforcement. Post Bart Simpson and Fox could sue you – but how many have they sued? Probably none, or one or two at most who probably tried to sell cartoons illegally. Last I checked every third web site was about The Matrix – zero lawsuits. Name any suits over this issue? Anyone? Anyone? Still looking…….

    Technology moves fast – so we should be able to steal. Technology is cooler than writing songs – so we should be able to steal. Technology will defeat your efforts to earn a living – so we should be able to steal and you should find a new job.

    And somehow, somewhere the mysterious fairy of goodwill and generosity is going to magically compensate songwriters, authors, composers, performers, the grips on the set, the musicians on the session, the printers, booksellers, video stores and theater ushers. Why? Because in the land of Silicon make-believe they can simulate logic and make you believe it just like they made you buy a Windows operating system.


  10. scott Says:

    Sorry about your job. It seems to me like you’re confusing a whole host of issues in this rant — targets appear to range from Microsoft to filesharers to intellectuals as a general class. You don’t really address any of the specific issues the Lessig discusses in his book here directly. I do however like the phrase “death by techno-babble.” It sounds like the kind of power some cartoon hacker superhero might possess. The recording industry is no doubt going through a period of rapid change, and it’s a shame that jobs are being lost, not only in the recording industry, but in America, but I’m not sure you’re placing the blame in the right place. Factory workers, teachers, and socialworkers are feeling just as much of the pinch of the Bush economy as are recording industry middlemen. Maybe you should consider blaming that big brother you say doesn’t exist, the one who set up shop on Pennsylvania Avenue. Strange, the people who actually make the music don’t seem to be running scared, the bands seem to play on, even as “one of the greatest cultural and business models the world has ever known” finds itself needing to change its iTune.

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