[Paleopsych] Robert S. Byonton: Righting Copyright: Fair Use and "Digital Environmentalism"

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Robert S. Byonton: Righting Copyright: Fair Use and "Digital 
Environmentalism"
BOOKFORUM | feb/mar 2005
http://www.bookforum.com/boynton.html

    Who owns the words you're reading right now? if you're holding a copy
    of Bookforum in your hands, the law permits you to lend or sell it to
    whomever you like. If you're reading this article on the Internet, you
    are allowed to link to it, but are prohibited from duplicating it on
    your web site or chat room without permission. You are free to make
    copies of it for teaching purposes, but aren't allowed to sell those
    copies to your students without permission. A critic who misrepresents
    my ideas or uses some of my words to attack me in an article of his
    own is well within his rights to do so. But were I to fashion these
    pages into a work of collage art and sell it, my customer would be
    breaking the law if he altered it. Furthermore, were I to set these
    words to music, I'd receive royalties when it was played on the radio;
    the band performing it, however, would get nothing. In the end, the
    copyright to these words belongs to me, and I've given Bookforum the
    right to publish them. But even my ownership is limited. Unlike a
    house, which I may pass on to my heirs (and they to theirs), my
    copyright will expire seventy years after my death, and these words
    will enter the public domain, where anyone is free to use them. But
    those doodles you're drawing in the margins of this page? Have no
    fear: They belong entirely to you.

    While it was once believed that Marxism would overhaul notions of
    ownership, the combination of capitalism and the Internet has
    transformed our ideas of property to an extent far beyond the dreams
    of even the most fervent revolutionary. Which is not to say that
    anything resembling a collectivist utopia has come to pass. Quite the
    opposite. In fact, the laws regulating property--and intellectual
    property, in particular--have never before been so complex, onerous,
    and rigid.

    Copyright protection has been growing in fits and starts since the
    early days of the Republic. In 1790, a copyright lasted for fourteen
    years and could be renewed once before the work entered the public
    domain. Between 1831 and 1909, the maximum term was increased from
    twenty-eight to fifty-six years. It was extended several more times
    during the twentieth century until 1998, when the Sonny Bono Copyright
    Term Extension Act added twenty additional years (to both existing and
    future intellectual property), increasing copyright protection to
    seventy years after the death of an author.

    Some of the most significant changes in intellectual property law took
    place in the Copyright Act of 1976, after which it was no longer
    required to register one's work in order to protect it. Anything
    "fixed in a tangible medium"--e-mail messages, those doodles in the
    margins of this magazine--automatically became copyrighted. Recent
    laws--like the 1998 Digital Millennium Copyright Act, which increased
    protection of copyrighted material on the Internet, and the Sonny Bono
    Act--have elevated intellectual property's status to such a degree
    that many courts and corporations often treat it in virtually the same
    way as they do physical property.

    This is a category mistake, and one explicitly forbidden according to
    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.'' Unlike Europe,
    whose laws center on the "moral rights" of the author to control his
    creation, American copyright law has always had the strictly
    utilitarian goal of providing just enough incentive for someone to
    create. Copyright is a bargain: The government grants a limited right
    to profit from your intellectual property in exchange for your
    agreement to give the public limited access to it during that period
    (such as the "fair use" right of a teacher to make class copies of an
    essay), and, eventually, for it to lapse into the public domain.

    But as copyright terms lengthened and intellectual property became a
    larger part of American industry, the logic of incentive has been
    overshadowed by the logic of reward, the thinking being that if my
    work continues to have value, why shouldn't I profit from it for as
    long as I want? "In our tradition, intellectual property is an
    instrument. It sets the groundwork for a richly creative society but
    remains subservient to the value of creativity," writes Stanford law
    professor Lawrence Lessig in his most recent book, Free Culture: How
    Big Media Uses Technology and the Law to Lock Down Culture and Control
    Creativity. "Yet the current debate has this turned around. We have
    become so concerned with protecting the instrument that we are losing
    sight of the value."

    But if we have fallen into what New York University communications
    professor Siva Vaidhyanathan calls "the property-talk trap," it has
    had the unintended effect of mobilizing citizens by demonstrating the
    stake we all have in the debate over how intellectual property should
    be considered. Once an arcane part of the American legal system,
    intellectual property law is now at the center of major disputes in
    the arts, sciences, and politics. People are increasingly aware of the
    role intellectual property plays in their everyday lives; they bump up
    against it every time they discover they can't print a passage from an
    e-book or transfer a song from their computer to their iPod. These
    days, it is not uncommon to hear people casually conversing about
    legal concepts like "fair use" and the "first sale doctrine."

    Much of this awareness results from the well-publicized lawsuits the
    Recording Industry Association of America has brought against music
    downloaders. This is unfortunate, because it has created the
    impression that those in favor of liberalizing copyright law condone
    the theft of intellectual property. Leaving aside questions about the
    appropriate legal remedies for, and the economic implications of,
    downloading, taking copyrighted material for which one has not paid is
    simply illegal. The fact that illegal downloading is a mass phenomenon
    indicates that our intellectual property laws aren't working in much
    the same way that the speakeasies of the '20s and '30s pointed out the
    irrationality of Prohibition. Neither downloading nor drinking,
    however, made the activities more legal.

    It is in more common--and only marginally illegal--pursuits that
    ordinary citizens are realizing they have a legitimate stake in the
    debate over the scope of copyright law. As the price of digital video
    cameras and editing software plummets, the number of people who sync
    home movies to music, splice together clips from favorite television
    shows, and even produce documentaries has soared. TiVo and other
    digital video recorders have made it possible to trade programs over
    the broadband Internet connections that are finding their way into
    homes across the country. Young fathers are practically required to
    transplant images of their newborns into great works of art by way of
    Photoshop.

    In December 2004, Google announced "Google Print," a project to bring
    millions of easily searchable, digitized books to the Internet. The
    project, which has already begun and may take a decade to complete,
    will further heighten awareness of our vexed relationship to
    intellectual property. After digitizing the entire holdings of
    Stanford and the University of Michigan libraries (as well as sections
    of the libraries of Harvard, Oxford and the New York Public Library),
    Google Print will search the texts of these books--although one will
    only be able to read the entire text of those works whose copyright
    has lapsed and are therefore in the public domain. As for copyrighted
    titles, one will be able to search their text for names and key
    phrases but won't be allowed to read the books themselves (a function
    like Amazon's helpful, but similarly limited, "Search inside this
    book" service). Instead, one will be directed to a library or
    bookstore where the book can be located.

    As amazing an effort as Google Print is (creating nothing less than a
    virtual "universal library of knowledge"), its logical goal--giving
    readers full access to the entire contents of that library--will be
    undercut by our intellectual property laws. It is an inherently
    unstable situation, and it is only a matter of time before someone
    (Amazon? Random House?) develops software to link this vast cache of
    literature to a convenient print-on-demand service (for which the
    hardware already exists). When it becomes possible to hold an
    inexpensive, physical copy of one of Google's digitized titles in
    one's hands--but only if it was first published prior to 1923 and is
    therefore in the public domain--people will begin to understand the
    implications of having something so obviously beneficial (universal
    access to universal knowledge) tethered to laws from another era.
    Google Print may be the Trojan Horse of the copyright wars.

                                    * * *

    While a range of copyright-infringing technologies has been changing
    the way we interact with our culture, critics of excessive copyright
    protection have been forging a coalition to demand that the law be
    brought more in line with the capabilities of these technologies. The
    challenge is considerable. Individual intellectual property rights are
    often in conflict with one another, and the only groups with a common
    interest in the direction of such laws are those corporations who want
    to lock up culture in perpetuity (or "forever minus a day," as former
    Motion Picture Association of America head Jack Valenti once
    suggested). Even following the twists and turns of the debate is
    difficult, since negotiations are seldom held in public. "This
    cultural war is almost invisible," writes David Bollier in Brand Name
    Bullies: The Quest to Own and Control Culture. "It is happening
    quietly and incrementally--in rulings by distant courts, in hearing
    rooms on Capital Hill and obscure federal agencies, in the digital
    code that Hollywood and record labels surreptitiously implant into
    DVDs and CDs."

    One of the most suggestive responses to this dilemma has come from
    Duke University law professor James Boyle, who, in his landmark book
    Shamans, Software and Spleens: Law and the Construction of the
    Information Society (1996), diagnosed the problem succinctly. "What we
    have right now is an exponentially expanding intellectual land grab, a
    land grab that is not only bad but dumb, about which the progressive
    community is largely silent, the center overly sanguine, and the right
    wing short-sighted." Boyle's subsequent work is an extended plea that
    we value the public domain. "Our art, our culture, our science depend
    on this public domain every bit as much as they depend on intellectual
    property,'' he writes.

    Boyle is one of the founders of "digital environmentalism," the
    movement that is fashioning a new understanding of what the public
    domain--the "commons," as Boyle and others have called it--might be.
    The great achievement of the environmental movement, from which Boyle
    draws inspiration, was its ability to convince a swath of the
    population--consumers and industrialists alike--that they all had a
    stake in this thing called "the environment," rather than just the
    small patch of land where they lived. Similarly, digital
    environmentalists are raising our awareness of the intellectual "land"
    to which people ought to feel entitled.

    Digital environmentalism is a two-pronged movement, with one group
    raising the awareness of the cultural stakes of intellectual property
    among everyday citizens, and the other pressing for legislative and
    legal change. The difference between the two is one of emphasis, with
    each participating in the battles of the other. Neither are anarchists
    or utopians; rather, both perceive of themselves as conservatives in
    the traditional sense of the term. "The point is not that copyright
    and trademark law needs to be overthrown," writes Bollier. "It is that
    its original goals need to be restored. Individual creators need to be
    empowered more than ever. The volume and free flow of information and
    creativity need to be protected. The public's rights of access and use
    must be honored. We must strike a new balance of private and public
    interests that takes account of the special dynamics of the Internet
    and digital technology."

    For those in the legal camp, the central event of recent years was
    Eldred v. Ashcroft, the 2002 Supreme Court case that challenged the
    constitutionality of the 1998 Sonny Bono Copyright Term Extension Act.
    Appearing before the court, Lessig argued that perpetually extending
    the term of copyright violated the Constitution's stipulation that
    copyright exist for only "a limited time.'' The court rejected
    Lessig's position by a vote of seven to two, holding that while the
    extension was perhaps unwise on policy grounds, it was still within
    Congress's constitutional authority. A second legal challenge, which
    Lessig brought in 2004, went nowhere.

    Developments on the legislative front have been, if anything, more
    discouraging. Laws that strengthen copyright and increase penalties
    for infringement are introduced, and reintroduced, in Congress every
    year. In 2004, the Induce Act, a bill so broadly drawn that it would
    have held manufacturers of TiVo and iPods legally responsible if their
    customers used them for infringing copyright, died in committee, but
    it is only a matter of time before a similar piece of legislation
    passes.

    The cultural prong of digital environmentalism has had somewhat more
    success. Represented by writers like Bollier, Vaidhyanathan
    (Copyrights and Copywrongs: The Rise of Intellectual Property and How
    It Threatens Creativity and The Anarchist in the Library: How the
    Clash Between Freedom and Control is Hacking the Real World and
    Crashing the System), Kembrew McLeod (Freedom of Expression:
    Overzealous Copyright Bozos and Other Enemies of Creativity), and
    others, they all advocate the path of activism and resistance. Working
    within existing law, they propose that artists and authors
    aggressively exercise their intellectual property rights in the face
    of threats and legal challenges from overbearing copyright holders.
    Bollier, for one, perceives the work of digital environmentalists as
    benefiting from the momentum generated by legal challenges like
    Lessig's. "Acts of civil disobedience against the antisocial,
    personally intrusive claims of copyright law have only grown since the
    Eldred ruling, in part because of it," he writes.

    Their premise is that, like a muscle, intellectual rights grow
    stronger only when exercised. "For the most part, we don't need any
    new legislation. Fair use is a great solution, but for it to have any
    real impact on our culture we need to vigorously and confidently
    (though not carelessly) employ this legal doctrine in daily life,"
    writes McLeod. The problem, they contend, is less the laws than the
    lawyers. Lawyers representing copyright holders encourage their
    clients to limit access to their intellectual property as much as
    possible. "The lawyers tell us 'You may gaze upon and buy the products
    of American culture,'" Bollier writes in Brand Name Bullies. "'But
    don't be so naïve as to think that you can actually use them for your
    own purposes. We own them.'" And the lawyers representing creators
    (artists, writers, and filmmakers, for example) who want access to
    copyrighted material for their work have decided that the transaction
    cost of boldly exercising fair-use rights is simply too high. Their
    primary goal is to avoid confrontation, even when they know that the
    outcome--should the case come to court--would favor their clients. The
    strategy of the cultural digital environmentalists is twofold. First,
    they challenge the lawyers at cultural institutions, whether they are
    book publishers, Internet providers, or movie distributors. Second,
    they spread the word about how poorly the current intellectual
    property system balances the rights of individuals and society.

    This tactic has given birth to the genre of the "copyright horror
    story." These are tales of intellectual property laws run amok: The
    artist who receives a cease-and-desist letter from the Vatican for
    using an image from the Sistine Chapel in a collage titled "The
    Sistine Bowl-Off." The company that was sued for devising software to
    teach tricks to a robot dog. McDonald's claim to own phrases like
    "Play and fun for everyone" and "Hey, it could happen." An Adobe
    e-book of Alice's Adventures in Wonderland that bears a warning
    forbidding one to read it aloud.

    In telling such stories, digital-environmentalist writers are trying
    to do for intellectual property what muckrakers like Lincoln Steffens
    did for corrupt governments and Eric Schlosser did for fast food: Go
    behind the curtain to reveal how something we take for granted--in
    this case, the cultural commons--really works. "We, as citizens, own
    these commons. They include resources that we have paid for as
    taxpayers and resources that we have inherited from previous
    generations," Bollier writes in his previous book, Silent Theft: The
    Private Plunder of Our Common Wealth. "They are not just an inventory
    of marketable assets, but social institutions and cultural traditions
    that define us as Americans and enliven us as human beings."

    Some copyright horror stories read like science fiction, depicting
    life in an anticommons in which everything is owned: letters of the
    alphabet, familiar phrases, and popular songs like "God Bless America"
    and "Happy Birthday" (which won't enter the public domain until 2030).
    And like the best science fiction, these stories pose a serious
    question: To what extent do we already live in such a place? Is our
    world an intellectual property version of The Matrix where, despite
    the illusion of freedom, we are little more than digital
    sharecroppers, licensers of a culture we mistakenly assume is ours?

    The science-fiction metaphor helps explain a tension central to the
    intellectual property wars. We do, in a sense, live in the space
    between two competing realities: According to the letter of the law,
    intellectual property is well protected, but legitimate access to it
    (by artists, parodists, critics) is guaranteed. In practice, however,
    our rights to access are ambiguously drawn and, as a result,
    prohibitively expensive to exercise. The difference in views between
    the commons and the anticommons is one of perspective. Can an artist
    who spends a fortune in legal fees successfully defending his
    legitimate fair use of a copyrighted image really be said to have won?
    "Fuck fair use," Lessig is fond of saying. "Fair use in America simply
    means the right to hire a lawyer to defend your right to create."

                                    * * *

    The line between science fiction and reality is often difficult to
    discern, as exhibited by the case of the college student who received
    trademark #2,127,381 for the phrase "freedom of expression."
    Fortunately, the student was Kembrew McLeod, who applied for it in
    order to make a point. McLeod, now professor of communication studies
    at the University of Iowa, is no stranger to using media pranks to
    exploit the absurdities of the system. In fact, he even once sold his
    soul in a glass jar on eBay.

    McLeod may be the most optimistic of the digital environmentalists.
    "We can fight back and win, especially because many recent court
    decisions have upheld free-speech rights in the age of intellectual
    property," he writes. Getting people to exercise those rights is
    another issue. "The problem is that many individuals and companies
    either don't know this or don't want to take a risk." McLeod's and
    Bollier's books are full of inspirational stories of those who have
    taken such risks and successfully faced down the corporations who have
    improperly used their copyrights, such as artist Tom Forsythe (creator
    of "Food Chain Barbie"), who was awarded $1.8 million in legal fees
    after Mattel pursued an "unreasonable and frivolous" suit against him.
    In September 2003, a group of Swarthmore College students posted on
    the Internet damning copies of internal memos written by employees of
    Diebold, the largest producer of electronic voting machines. The memos
    detailed various security flaws in Diebold's machines, and it wasn't
    long before the students received cease-and-desist letters demanding
    that they remove the memos from their websites. Although Diebold
    withdrew its legal threats in the wake of bad publicity, the students
    sued the company for falsely accusing them of copyright infringement.
    On September 30, 2004, a judge agreed that Diebold had deliberately
    misrepresented its copyright claims and awarded the students legal
    fees and damages. This past summer, director Robert Greenwald made
    "fair use" of a substantial amount of Fox News footage in order to
    document its conservative bias in his documentary Outfoxed: Rupert
    Murdoch's War on Journalism. Fox grumbled about the movie but never
    sued Greenwald for copyright infringement. In 2004, underground
    hip-hop artist DJ Danger Mouse edited together the vocals from Jay-Z's
    Black Album with selections of the Beatles' White Album to produce The
    Grey Album. Despite a flurry of cease-and-desist letters from
    EMI/Capitol (which owns the copyright to The White Album), over 170
    websites continued to host The Grey Album in support of DJ Danger
    Mouse's right to create. It went on to become one of the most
    frequently downloaded independent albums of all time. The Boston Globe
    called it "the most creatively captivating" album of the year.

    If anything, Bollier's "bullies" and McLeod's "bozos" are their own
    worst enemies. "As we look back twenty years from now, Mattel and
    other businesses like Fox News may ironically be remembered as some of
    the greatest promoters of fair use," writes McLeod. "Virtually every
    time these companies try to step on freedom of expression® in court
    they end up expanding the parameters of fair use in case law, and they
    also intensify the backlash against this kind of behavior."

    Recent stirrings in legal theory may give some comfort to the activist
    wing of digital environmentalism. Taking for granted the fact that the
    problem is less the letter of intellectual property law than the
    spirit in which it is interpreted, Richard Posner, a federal appeals
    judge and prolific legal theorist, and others have suggested some ways
    to remedy this problem.

    Foremost among them is the doctrine of "copyright misuse." In his
    California Law Review article "Fair Use and Statutory Reform in the
    Wake of Eldred," Posner argues that it is more valuable, and feasible,
    to strengthen fair-use practices than to lobby for new copyright laws.
    The problem with the current system, according to Posner, is that
    copyright owners systematically make improperly broad claims to their
    rights. The book, DVD, or baseball-game broadcast that comes with a
    notice stating that no part of the work may be copied without
    permission is, in fact, in violation of the doctrine of fair use (for
    which one doesn't need permission). Posner argues that when a
    copyright holder affixes a warning on copies of his work that "grossly
    and intentionally exaggerates the copyright holder's substantive or
    remedial rights, to the prejudice of publishers of public-domain
    works, the case for invoking the doctrine of copyright misuse" has
    been made.

    The copyright misuse doctrine is attractive for a number of reasons.
    It is a flexible approach to protecting the public-policy goals
    underlying copyright law (promoting "the progress of science and
    useful arts") without having to pass new laws every time a technical
    innovation--radio, movies, television, copy machines, VCR, the
    Internet--creates a new set of challenges for copyright holders. And
    it is especially valuable to users of copyright because it is "one of
    the only copyright-limiting doctrines that arise from actions taken by
    the copyright holder," writes Kathryn Judge in her Stanford Law Review
    article "Rethinking Copyright Misuse." Aside from the possibility of
    being sued, the primary problem for those who want to make fair use of
    copyrighted material is the uncertainty of their position; while the
    law seems to support them, their backers and/or insurers may deem the
    cost of exercising their rights excessive. The doctrine of copyright
    misuse might provide a mechanism for a creator to address that
    uncertainty. For example, employing the principle of copyright misuse,
    an artist who believes he has a legitimate right to make fair use of a
    copyrighted work can proactively challenge a copyright holder who he
    believes is protecting his work more broadly than required by
    copyright law. While such a maneuver wouldn't necessarily guarantee
    that the artist will prevail (he might of course be wrong), copyright
    misuse is one way the claims of the copyright holder might be tested
    without enduring an expensive lawsuit.

    Copyright misuse isn't as satisfying as a Supreme Court victory or the
    passing of a new set of intellectual property laws. And it isn't clear
    that it is robust enough to protect fair use in the way that Posner
    and others want it to. But perhaps by bolstering the practices of
    everyday people it will help reclaim a familiar cultural landscape.
    Because in the end, the goal of digital environmentalism is quite
    modest: a world in which, as McLeod writes, the digital future looks
    "a lot like the analog past."

    Robert S. Boynton is director of New York University's magazine
    journalism program. His new book, The New New Journalism:
    Conversations with America's Best Nonfiction Writers on Their Craft,
    is being published this month by Vintage.


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