September 3, 2003
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?