Keith Aoki, James Boyle and Jennifer Jenkins have produced a comic book entitled, “Bound By Law? Trapped in a Sturggle She Didn’t Understand” which portrays a fictional documentary filmmaker who learns about intellectual property, copyright and more importantly her rights to use material under fair use. We picked up a copy during the recent conference on “Cultural Environmentalism at 10” at Stanford. This work was funded by the Rockefeller Foundation, the same people who funded “Will Fair Use Survive?” from the Free Expression Policy Project of the Brennan Center at the NYU Law School, which was discussed here upon its release. The comic book also relies on the analysis that Larry Lessig covered in “Free Culture.” However, these two works go into much more detail and have quite different goals and audiences. With that said, “Bound By Law” deftly takes advantage of the medium and boldly uses repurposed media iconic imagery to convey what is permissible and to explain the current chilling effect that artists face even when they have a strong claim of fair use.
Part of Boyle’s original call ten years ago for a Cultural Environmentalism Movement was to shift the discourse of IP into the general national dialogue, rather than remain in the more narrow domain of legal scholars. To that end, the logic behind capitalizing on a popular culture form is strategically wise. In producing a comic book, the authors intend to increase awareness among the general public as well as inform filmmakers of their rights and the current landscape of copyright. Using the case study of documentary film, they cite many now classic copyright examples (for example the attempt to use footage of a television in the background playing the”Simpsons” in a documentary about opera stagehands.) “Bound By Law” also leverages the form to take advantage of compelling and repurposed imagery (from Mickey Mouse to Mohammed Ali) to convey what is permissible and the current chilling effect that artists face in attempting to deal with copyright issues. It is unclear if and how this work will be received in the general public. However, I can easily see this book being assigned to students of filmmaking. Although, the discussion does not forge new ground, its form will hopefully reach a broader audience. The comic book form may still be somewhat fringe for the mainstream populus and I hope for more experiments in even more accesible forms. Perhaps the next foray into the popular culture will an episode of CSI or Law & Order, or a Michael Crichton thriller.
Category Archives: intellectual_property
cultural environmentalism symposium at stanford
Ten years ago, the web just a screaming infant in its cradle, Duke law scholar James Boyle proposed “cultural environmentalism” as an overarching metaphor, modeled on the successes of the green movement, that might raise awareness of the need for a balanced and just intellectual property regime for the information age. A decade on, I think it’s safe to say that a movement did emerge (at least on the digital front), drawing on prior efforts like the General Public License for software and giving birth to a range of public interest groups like the Electronic Frontier Foundation and Creative Commons. More recently, new threats to cultural freedom and innovation have been identified in the lobbying by internet service providers for greater control of network infrastructure. Where do we go from here? Last month, writing in the Financial Times, Boyle looked back at the genesis of his idea:
We were writing the ground rules of the information age, rules that had dramatic effects on speech, innovation, science and culture, and no one – except the affected industries – was paying attention.
My analogy was to the environmental movement which had quite brilliantly made visible the effects of social decisions on ecology, bringing democratic and scholarly scrutiny to a set of issues that until then had been handled by a few insiders with little oversight or evidence. We needed an environmentalism of the mind, a politics of the information age.
Might the idea of conservation — of water, air, forests and wild spaces — be applied to culture? To the public domain? To the millions of “orphan” works that are in copyright but out of print, or with no contactable creator? Might the internet itself be considered a kind of reserve (one that must be kept neutral) — a place where cultural wildlife are free to live, toil, fight and ride upon the backs of one another? What are the dangers and fallacies contained in this metaphor?
Ray and I have just set up shop at a fascinating two-day symposium — Cultural Environmentalism at 10 — hosted at Stanford Law School by Boyle and Lawrence Lessig where leading intellectual property thinkers have converged to celebrate Boyle’s contributions and to collectively assess the opportunities and potential pitfalls of his metaphor. Impressions and notes soon to follow.
can there be a compromise on copyright?
The following is a response to a comment made by Karen Schneider on my Monday post on libraries and DRM. I originally wrote this as just another comment, but as you can see, it’s kind of taken on a life of its own. At any rate, it seemed to make sense to give it its own space, if for no other reason than that it temporarily sidelined something else I was writing for today. It also has a few good quotes that might be of interest. So, Karen said:
I would turn back to you and ask how authors and publishers can continue to be compensated for their work if a library that would buy ten copies of a book could now buy one. I’m not being reactive, just asking the question–as a librarian, and as a writer.
This is a big question, perhaps the biggest since economics will define the parameters of much that is being discussed here. How do we move from an old economy of knowledge based on the trafficking of intellectual commodities to a new economy where value is placed not on individual copies of things that, as a result of new technologies are effortlessly copiable, but rather on access to networks of content and the quality of those networks? The question is brought into particularly stark relief when we talk about libraries, which (correct me if I’m wrong) have always been more concerned with the pure pursuit and dissemination of knowledge than with the economics of publishing.
Consider, as an example, the photocopier — in many ways a predecessor of the world wide web in that it is designed to deconstruct and multiply documents. Photocopiers have been unbundling books in libraries long before there was any such thing as Google Book Search, helping users break through the commodified shell to get at the fruit within.
I know there are some countries in Europe that funnel a share of proceeds from library photocopiers back to the publishers, and this seems to be a reasonably fair compromise. But the role of the photocopier in most libraries of the world is more subversive, gently repudiating, with its low hum, sweeping light, and clackety trays, the idea that there can really be such a thing as intellectual property.
That being said, few would dispute the right of an author to benefit economically from his or her intellectual labor; we just have to ask whether the current system is really serving in the authors’ interest, let alone the public interest. New technologies have released intellectual works from the restraints of tangible property, making them easily accessible, eminently exchangable and never out of print. This should, in principle, elicit a hallelujah from authors, or at least the many who have written works that, while possessed of intrinsic value, have not succeeded in their role as commodities.
But utopian visions of an intellecutal gift economy will ultimately fail to nourish writers who must survive in the here and now of a commercial market. Though peer-to-peer gift economies might turn out in the long run to be financially lucrative, and in unexpected ways, we can’t realistically expect everyone to hold their breath and wait for that to happen. So we find ourselves at a crossroads where we must soon choose as a society either to clamp down (to preserve existing business models), liberalize (to clear the field for new ones), or compromise.
In her essay “Books in Time,” Berkeley historian Carla Hesse gives a wonderful overview of a similar debate over intellectual property that took place in 18th Century France, when liberal-minded philosophes — most notably Condorcet — railed against the state-sanctioned Paris printing monopolies, demanding universal access to knowledge for all humanity. To Condorcet, freedom of the press meant not only freedom from censorship but freedom from commerce, since ideas arise not from men but through men from nature (how can you sell something that is universally owned?). Things finally settled down in France after the revolution and the country (and the West) embarked on a historic compromise that laid the foundations for what Hesse calls “the modern literary system”:
The modern “civilization of the book” that emerged from the democratic revolutions of the eighteenth century was in effect a regulatory compromise among competing social ideals: the notion of the right-bearing and accountable individual author, the value of democratic access to useful knowledge, and faith in free market competition as the most effective mechanism of public exchange.
Barriers to knowledge were lowered. A system of limited intellectual property rights was put in place that incentivized production and elevated the status of writers. And by and large, the world of ideas flourished within a commercial market. But the question remains: can we reach an equivalent compromise today? And if so, what would it look like? 
Creative Commons has begun to nibble around the edges of the problem, but love it as we may, it does not fundamentally alter the status quo, focusing as it does primarily on giving creators more options within the existing copyright system.
Which is why free software guru Richard Stallman announced in an interview the other day his unqualified opposition to the Creative Commons movement, explaining that while some of its licenses meet the standards of open source, others are overly conservative, rendering the project bunk as a whole. For Stallman, ever the iconoclast, it’s all or nothing.
But returning to our theme of compromise, I’m struck again by this idea of a tax on photocopiers, which suggests a kind of micro-economy where payments are made automatically and seamlessly in proportion to a work’s use. Someone who has done a great dealing of thinking about such a solution (though on a much more ambitious scale than library photocopiers) is Terry Fisher, an intellectual property scholar at Harvard who has written extensively on practicable alternative copyright models for the music and film industries (Ray and I first encountered Fisher’s work when we heard him speak at the Economics of Open Content Symposium at MIT last month).
The following is an excerpt from Fisher’s 2004 book, “Promises to Keep: Technology, Law, and the Future of Entertainment”, that paints a relatively detailed picture of what one alternative copyright scheme might look like. It’s a bit long, and as I mentioned, deals specifically with the recording and movie industries, but it’s worth reading in light of this discussion since it seems it could just as easily apply to electronic books:
….we should consider a fundamental change in approach…. replace major portions of the copyright and encryption-reinforcement models with a variant of….a governmentally administered reward system. In brief, here’s how such a system would work. A creator who wished to collect revenue when his or her song or film was heard or watched would register it with the Copyright Office. With registration would come a unique file name, which would be used to track transmissions of digital copies of the work. The government would raise, through taxes, sufficient money to compensate registrants for making their works available to the public. Using techniques pioneered by American and European performing rights organizations and television rating services, a government agency would estimate the frequency with which each song and film was heard or watched by consumers. Each registrant would then periodically be paid by the agency a share of the tax revenues proportional to the relative popularity of his or her creation. Once this system were in place, we would modify copyright law to eliminate most of the current prohibitions on unauthorized reproduction, distribution, adaptation, and performance of audio and video recordings. Music and films would thus be readily available, legally, for free.
Painting with a very broad brush…., here would be the advantages of such a system. Consumers would pay less for more entertainment. Artists would be fairly compensated. The set of artists who made their creations available to the world at large–and consequently the range of entertainment products available to consumers–would increase. Musicians would be less dependent on record companies, and filmmakers would be less dependent on studios, for the distribution of their creations. Both consumers and artists would enjoy greater freedom to modify and redistribute audio and video recordings. Although the prices of consumer electronic equipment and broadband access would increase somewhat, demand for them would rise, thus benefiting the suppliers of those goods and services. Finally, society at large would benefit from a sharp reduction in litigation and other transaction costs.
While I’m uncomfortable with the idea of any top-down, governmental solution, this certainly provides food for thought.
DRM and the damage done to libraries
A recent BBC article draws attention to widespread concerns among UK librarians (concerns I know are shared by librarians and educators on this side of the Atlantic) regarding the potentially disastrous impact of digital rights management on the long-term viability of electronic collections. At present, when downloads represent only a tiny fraction of most libraries’ circulation, DRM is more of a nuisance than a threat. At the New York Public library, for instance, only one “copy” of each downloadable ebook or audio book title can be “checked out” at a time — a frustrating policy that all but cancels out the value of its modest digital collection. But the implications further down the road, when an increasing portion of library holdings will be non-physical, are far more grave.
What these restrictions in effect do is place locks on books, journals and other publications — locks for which there are generally no keys. What happens, for example, when a work passes into the public domain but its code restrictions remain intact? Or when materials must be converted to newer formats but can’t be extracted from their original files? The question we must ask is: how can librarians, now or in the future, be expected to effectively manage, preserve and update their collections in such straightjacketed conditions?
This is another example of how the prevailing copyright fundamentalism threatens to constrict the flow and preservation of knowledge for future generations. I say “fundamentalism” because the current copyright regime in this country is radical and unprecedented in its scope, yet traces its roots back to the initially sound concept of limited intellectual property rights as an incentive to production, which, in turn, stemmed from the Enlightenment idea of an author’s natural rights. What was originally granted (hesitantly) as a temporary, statutory limitation on the public domain has spun out of control into a full-blown culture of intellectual control that chokes the flow of ideas through society — the very thing copyright was supposed to promote in the first place.
If we don’t come to our senses, we seem destined for a new dark age where every utterance must be sanctioned by some rights holder or licensing agent. Free thought isn’t possible, after all, when every thought is taxed. In his “An Answer to the Question: What is Enlightenment?” Kant condemns as criminal any contract that compromises the potential of future generations to advance their knowledge. He’s talking about the church, but this can just as easily be applied to the information monopolists of our times and their new tool, DRM, which, in its insidious way, is a kind of contract (though one that is by definition non-negotiable since enforced by a machine):
But would a society of pastors, perhaps a church assembly or venerable presbytery (as those among the Dutch call themselves), not be justified in binding itself by oath to a certain unalterable symbol in order to secure a constant guardianship over each of its members and through them over the people, and this for all time: I say that this is wholly impossible. Such a contract, whose intention is to preclude forever all further enlightenment of the human race, is absolutely null and void, even if it should be ratified by the supreme power, by parliaments, and by the most solemn peace treaties. One age cannot bind itself, and thus conspire, to place a succeeding one in a condition whereby it would be impossible for the later age to expand its knowledge (particularly where it is so very important), to rid itself of errors, and generally to increase its enlightenment. That would be a crime against human nature, whose essential destiny lies precisely in such progress; subsequent generations are thus completely justified in dismissing such agreements as unauthorized and criminal.
We can only hope that subsequent generations prove more enlightened than those presently in charge.
rethinking copyright: learning from the pro sports?
As Ben has reported, the Economics of Open Content conference spent a good deal of time discussing issues of copyright and fair use. During a presentation, David Pierce from Copyright Services noted that the major media companies are mainly concerned about protecting their most valuable assets. The obvious example is Disney’s extreme vested interest in protecting the Mickey Mouse, now 78 years old, from entering the public domain. Further, Pierce mentioned that these media companies fight to extend the copyright protection of everything they own in order to protect their most valuable assets. Finally, he stated that only a small portions of their total film libraries are available to consumers. Many people in attendance were intrigued by these ideas, including myself and Paul Courant from the University of Michigan. Earlier in the conference, Courant explained that 90-95% of UM’s library is out of print, and presumably much of that is under copyright protection.
If this situation is true, then, staggering amounts of media are being kept from the public domain or are closed from licensing for little or no reason. A little further thinking quickly leads to alternative structures of copyright that would move media into the public domain or at the least increase its availability, while appeasing the media conglomerates economic concerns.
Rules controlling the protection of assets is nothing new. For instance, in US professional sports, fairly elaborate structures are in place determine how players can be traded. Common sense dictates that teams cannot stockpile players from other teams. In the free agency era of the National Football League, teams have limited rights to control players from signing with other teams. Each NFL team can designate a single athlete as a “franchise” player, according to the current Collecting Bargaining Agreement with the player union. This designation gives them exclusive rights in retaining their player from competing offers. Similarly, in the National Basketball Association, when the league adds a new team, existing teams are allowed to protect eight players from being drafted and signed from the expansion team(s). What can we learn from these institutions? The examples show hoarding players is not good for sports, similarly hoarding assets is not in the best interest of the public good either.
The sports example has obviously limitations. In the NBA, team rosters are limited to fifteen players. On the other hand, a media company can hold an unlimited number of assets. In turn, applying this model would allow companies to seek extensions to only a portion of their copyright assets. Defining this proportion would certainly be difficult. For instance, it is still unclear to me how this might adapt to owners of one copyrighted property.
Another variant interpretation of this model would be to move the burden of responsibility back to the copyright holder. Here, copyright holders must show active economic use and value from these properties. This strategy would force media companies to make their archives available or put the media into the public domain. These copyright holders need to overcome their fears of flooding the markets and dated claims of limited shelf space, which are simply not relevant in the digital media / e-commerce age. Further, media companies would be encouraged to license their holdings for derivatives works, which would in fact lead to more profits. In that, these implementations would increase revenue by challenging the current shortsighted marketing decisions which fail to account for the long tail economic value of their holdings. Although these materials would not enter the public domain, they would be become accessible.
Would this block innovation? Creators of content will still be able to profit from their work for decades. When limited copyright did exist in its original implementation, creative innovation was certainly not hindered. Therefore, the argument that limiting protection of all of a media company’s assets in perpetuity would slow innovation is baseless. By the end of the current time copyright period, holders have ample time to extract value from those assets. In fact, infinite copyright protection slows innovation by removing incentives to create new intellectual property.
Finally, few last comments are worth noting. These models are, at best, compromises. I present them because the current state of copyright protection and extensions seems headed towards former Motion Pictures Association of America President Jack Valenti’s now infamous suggestion of extending copyright to “forever less a day.” Although these media companies have a huge financial stake in controlling these copyrights, I cannot overemphasize our Constitutional right to place these materials in the public domain. Article I, Section 8, clause 8 of the United States Constitution states:
Congress has the power to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Rights to their respective Writings and Discoveries.
Under these proposed schemes, fair use becomes even more cruical. Conceding that the extraordinary preciousness of intellectual property as Mickey Mouse and Bugs Bunny supersedes rights found in our Constitution implies a similarly extraordinary importance of these properties to our culture and society. Thus, democratic access to these properties for use in education and critical discourse must be equally imperative to the progress of culture and society. In the end, the choice, as a society, is ours. We do not need to concede anything.
lessig in second life
Wednesday evening, I attended an interview with Larry Lessig, which took place in the virtual world of Second Life. New World Notes announced the event and is posting coverage and transcripts of the interview. As it was my first experience in SL, I will post more on the experience of attending an interview/ lecture in a virtual space. For now, I am going to comment upon two quotes that Lessig covered as it relates to our work at the institute.
Lawrence Lessig: Because as life moves online we should have the SAME FREEDOMS (at least) that we had in real life. There’s no doubt that in real life you could act out a movie or a different ending to a movie. There’s no doubt that would have been “free” of copyright in real life. But as we move online things that were before were free now are regulated.
Yesterday, Bob made the point that our memories increasingly exist outside of ourselves. At the institute, we have discussed the mediated life, and a substantial part of that mediation occurs as we continue to digitize more parts of our lives, from photo albums to diaries. Things we once created in the physical world now reside on the network, which means that it is being published. Photo albums documenting our trips to Disneyland or the Space Needle (whose facade is trademarked and protected) that one rested within the home, are uploaded to flickr, potentially accessible to anyone browsing the Internet, a regulated space. This regulation has enormous influence on the creative outlets of everyone, not just professionals. Without trying to sound overly naive, my concern is not just that speech and discourse of all people are being compromised. As companies become more litigious towards copyright infringement (especially when their arguments are weak), the safe guards of the courts and legislation are not protecting its constituents.
Lawrence Lessig: Copyright is about creating incentives. Incentives are prospective. No matter what even the US Congress does, it will not give Elvis any more incentive to create in 1954. So whatever the length of copyright should be prospectively, we know it can make no sense of incentives to extend the term for work that is already created.
The increasing accessibility of digital technology allows people to become creators and distributors of content. Lessig notes that with each year, the increasing evidence from cases such as the Google Book Search controversy show the inadequacy of current copyright legislation. Further, he insightfully suggests to learn from the creations that young people produce such as anime music videos. Their completely different approach to intellectual property informs the cultural shift that is running counter to the legal status quo. Lessig suggest that these creative works have the potential to inform policy makers that these attitudes are moving toward the original intentions of copyright law. Then, policy makers hopefully may begin to question why these works are currently considered illegal.
The courts’ failure to clearly define an interpretation of fair use puts at risk the discourse that a functioning democracy requires. The stringent attitudes towards using copyrighted material goes against the spirit of the original intentions of the law. Although, it may not be a role of the government and the courts to actively encourage creativity. It is sad that bipartisan government actions and courts rulings actively discourage innovation and creativity.
sober thoughts on google: privatization and privacy
Siva Vaidhyanathan has written an excellent essay for the Chronicle of Higher Education on the “risky gamble” of Google’s book-scanning project — some of the most measured, carefully considered comments I’ve yet seen on the issue. His concerns are not so much for the authors and publishers that have filed suit (on the contrary, he believes they are likely to benefit from Google’s service), but for the general public and the future of libraries. Outsourcing to a private company the vital task of digitizing collections may prove to have been a grave mistake on the part of Google’s partner libraries. Siva:
The long-term risk of privatization is simple: Companies change and fail. Libraries and universities last…..Libraries should not be relinquishing their core duties to private corporations for the sake of expediency. Whichever side wins in court, we as a culture have lost sight of the ways that human beings, archives, indexes, and institutions interact to generate, preserve, revise, and distribute knowledge. We have become obsessed with seeing everything in the universe as “information” to be linked and ranked. We have focused on quantity and convenience at the expense of the richness and serendipity of the full library experience. We are making a tremendous mistake.
This essay contains in abundance what has largely been missing from the Google books debate: intellectual courage. Vaidhyanathan, an intellectual property scholar and “avowed open-source, open-access advocate,” easily could have gone the predictable route of scolding the copyright conservatives and spreading the Google gospel. But he manages to see the big picture beyond the intellectual property concerns. This is not just about economics, it’s about knowledge and the public interest.
What irks me about the usual debate is that it forces you into a position of either resisting Google or being its apologist. But this fails to get at the real bind we all are in: the fact that Google provides invaluable services and yet is amassing too much power; that a private company is creating a monopoly on public information services. Sooner or later, there is bound to be a conflict of interest. That is where we, the Google-addicted public, are caught. It’s more complicated than hip versus square, or good versus evil.
Here’s another good piece on Google. On Monday, The New York Times ran an editorial by Adam Cohen that nicely lays out the privacy concerns:
Google says it needs the data it keeps to improve its technology, but it is doubtful it needs so much personally identifiable information. Of course, this sort of data is enormously valuable for marketing. The whole idea of “Don’t be evil,” though, is resisting lucrative business opportunities when they are wrong. Google should develop an overarching privacy theory that is as bold as its mission to make the world’s information accessible – one that can become a model for the online world. Google is not necessarily worse than other Internet companies when it comes to privacy. But it should be doing better.
Two graduate students in Stanford in the mid-90s recognized that search engines would the most important tools for dealing with the incredible flood of information that was then beginning to swell, so they started indexing web pages and working on algorithms. But as the company has grown, Google’s admirable-sounding mission statement — “to organize the world’s information and make it universally accessible and useful” — has become its manifest destiny, and “information” can now encompass the most private of territories.
At one point it simply meant search results — the answers to our questions. But now it’s the questions as well. Google is keeping a meticulous record of our clickstreams, piecing together an enormous database of queries, refining its search algorithms and, some say, even building a massive artificial brain (more on that later). What else might they do with all this personal information? To date, all of Google’s services are free, but there may be a hidden cost.
“Don’t be evil” may be the company motto, but with its IPO earlier this year, Google adopted a new ideology: they are now a public corporation. If web advertising (their sole source of revenue) levels off, then investors currently high on $400+ shares will start clamoring for Google to maintain profits. “Don’t be evil to us!” they will cry. And what will Google do then?
images: New York Public Library reading room by Kalloosh via Flickr; archive of the original Google page
Lawrence Lessig on “writing”
Closing the USC conference “Scholarship in the Digital Age,” Lessig spoke on “free culture” and the current legal/cultural crisis that in the next few years will define the constraints on creative production for decades to come. Due to obsessive fixation by a handful of powerful media industries on the issue of piracy, the massive potential of networked digital culture that has briefly flowered in the past decade could be destroyed by draconian laws and code controls embedded in new technologies. In Lessig’s words: “never in our past have fewer exercised more legal control.”
Lessig elegantly picked up one of the conference’s many threads, multimedia literacy, referring to the bundle of new forms of cultural and scholarly production – remixing, reusing, networking peer-to-peer, working across multiple media – as simply “writing.” This is an important step to take in thinking about these new modes of production, and is actually a matter of considerable urgency, considering the legal changes currently underway. The ultimate question to ask is (and this is how Lessig concluded his talk): are we producing a legal culture in which writing is not allowed?