If God hadn’t felt confident that he’d maintain copyright control over Creation, would he have sat on his hands for six days? True, his control presumably runs for the life of the author plus eternity—which may be the same thing in his case—but you figure he had bigger fish to fry, or at least to put in the sea.
How about ordinary sons and daughters of Adam and Eve? (Note to Supreme Court: I claim “fair use” here vis-à-vis the Big Guy, Moses, biblical scribes, whoever.) Exactly what incentive do they need to create books, poems, articles, songs, albums, movies, documentaries, TV shows, and more? Do they need profit? Or do they just enjoy and prefer profit? Must it be big profit—even if a project is one’s lifelong creative dream—or will a small payoff do?
And how long must the profit continue? Do most artists care about what happens 70 years after their death? (Many artists, as we know, need a scheduler to figure out what’s happening tomorrow.) And how about break-even status? Can that incentivize creativity? Wouldn’t a lot of noncommercial types—the kind of nonprofit artists perennially going out of business—be happy with that?
Last month brought an explosion of breaking news about intellectual-property issues, including copyright—the public battle over Internet-piracy bills in Congress, with ideological alliances crisscrossing standard lines, and sponsors turning against their own bills; the Supreme Court decision, Golan v. Holder, which strengthened copyright holders by permitting former public-domain works to be whooshed into copyright; and the Justice Department attack on Megaupload.
To casual observers, it might seem that issues of intellectual property—the term generally refers to copyright, patent, trademark, and trade secrets—like so much in Washington, get decided through battle in the political and judicial policy trenches, abetted by lobbying. The striking aspect of the IP cascade was the ideological uncertainty—the unpredictability of where various parties lined up, or might.
Hard-core libertarians and others, as has been the case in recent decades, continue to differ on whether they want information to be free or want it sufficiently controlled by corporate America so that Big Corporate can be free to make huge profits. Free-speech advocates generally loathe copyright expansion that blocks the ability of “everyman” to use or play with the speech of others, but they also share concerns of artists and creative sorts, who feel pinched by the ability of others to copy and distribute their work amid the digital revolution.
The Chronicle has covered the developments most pertinent to academics. (See, in particular, “The Copyright Rebellion,” May 29, 2011, with its guide to Web sources.) But as copyright law has grown and altered in recent decades, “intellectual property” has become a term that leapfrogs a number of philosophical issues, and a body of philosophical and jurisprudential work has grown that can help one clarify positions on the trench warfare. As this brief, highly selective Baedeker to books and journals indicates, there’s more than enough IP material around for on-the-fence Congresspeople, or their staffers, to find a way back to ideological moorings.
The concerns of those who think (or at least did before Golan v. Holder) that the copyright sky is falling are available in Free Ride: How Digital Parasites Are Destroying the Culture Business, and How the Culture Business Can Fight Back (Doubleday, 2011), by Robert Levine, former executive editor of Billboard. Levine gives a concrete account of the apocalyptic scenario perceived by copyright holders, while stating the megaprinciples. He writes that “it’s time to ask whether any significant media business can thrive in an environment where information can be taken so easily.” Laying out the larger dynamic, he observes, “By making it essentially optional to pay for content, piracy has set the price of digital goods at zero. The result is a race to the bottom, and the inevitable response of media companies has been cuts—first in staff, then in ambition, and finally in quality.”
Rejecting the vision of the copyright wars as corporations versus artists, creators, and academics, Levine says it’s really corporations versus corporations, “between the media companies that fund much of the entertainment we read, see, and hear and the technology firms that want to distribute their content—legally or otherwise.” In a comment foreshadowing what happened to Internet-piracy legislation last month, he writes, apropos of the blowback from the technology industry after the music business won its litigation against Napster, “Attempts to defend copyright were cast as assaults on free speech, efforts to organize markets were criticized as outmoded, and piracy was confused with creativity. Much of this thinking came from organizations funded by technology companies, and some of them have as much influence in Washington as Hollywood does.”
Intellectual-property holders stirred to action by the fears Levine articulates can turn to a thoughtful, up-to-date guide, Intellectual Property Strategy (MIT Press, 2011), by John Palfrey, professor of law and vice dean for library and information resources at Harvard Law School. Palfrey, who identifies IP as a “flexible asset class,” nonetheless urges managers not to leap to litigation over IP, which mainly benefits their lawyers.
Many in the arts and academe, of course, think the freedom-of-expression issue is not a red herring but the heart of the matter. Reclaiming Fair Use: How to Put Balance Back in Copyright (University of Chicago, 2011), by Pat Aufderheide and Peter Jaszi, gives the best, most up-to-date account of how all those stymied by the copyright juggernaut can use the “fair use” exception, rooted in the value of free expression, to fight back.
The feistiest counterpoint to Levine, matching him brash subtitle for subtitle, remains Freedom of Expression®: Overzealous Copyright Bozos and Other Enemies of Creativity (Doubleday, 2005), by Kembrew McLeod, an associate professor of communication studies at the University of Iowa. In an often hilarious “It’s later than you think” account of how copyright expansion threatens to hawk every part of the cultural commons as private property, McLeod (who in 1998 trademarked the phrase “freedom of expression” as a joke) pre-emptively sounded the anti-Levine cries with ironies aplenty. In that vein, one must also mention the still incisive, extremely forward-looking Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (NYU Press, 2001) by Siva Vaidhyanathan, whose expertise on IP issues has often brightened these pages.
Also helpful in understanding why a more open culture is important to everyone, not just scholars and artists, are The Access Principle: The Case for Open Access to Research and Scholarship, by John Willinsky (MIT Press, 2007), which explains why wide circulation of material matters, and Duke University Press’s multiple books on copyright in the business of the arts, including Inherent Vice: Bootleg Histories of Videotape and Copyright (2009), by Lucas Hilderbrand; Creative License: The Law and Culture of Digital Sampling, by McLeod and Peter DiCola (2001), and Cutting Across Media: Appropriation Art, Interventionist Collage, and Copyright Law (2011), edited by McLeod and Rudolf Kuenzli. Like Reclaiming Fair Use, but in far greater detail, the Duke books illustrate the challenges of mushrooming copyright law for mash-up artists and others.
From a different angle, Wired Shut: Copyright and the Shape of Digital Culture (MIT Press, 2007), by Tarleton Gillespie, surveys the way technical efforts to protect copyright and exclude unauthorized users (e.g., encryption systems) may make legal arguments irrelevant.
As one then lifts off toward greater philosophical overview, a book that balances the philosophical and practical is Moral Panics and the Copyright Wars (Oxford University Press, 2009), by William Patry, senior copyright counsel at Google and one of the nation’s top copyright scholars. A pragmatist, Patry argues that we must get away from copyright as a natural property right and from metaphors of “strong” and “weak” copyright protection, and instead reform the system so that all sensible societal objectives are balanced.
Also magisterial in its mix of the concrete and philosophical is The Economic Structure of Intellectual Property Law (Harvard University Press, 2003), by William Landes, professor of law and economics at the University of Chicago, and Richard Posner, indefatigable judge on the U.S. Court of Appeals for the Seventh Circuit and lecturer in law at Chicago. It, like Moral Panics but with a sweep over all of IP’s terrain, seeks to rationalize IP, including its fit with property law as a whole.
Finally, two items represent the recognition that IP issues now transcend law and require philosophy.
The Monist, one of academic philosophy’s most venerable journals, devoted its July 2010 issue to IP. Article titles—Andrea Bottoni’s “Intellectual Property as a Kind of Metaproperty” and Michael Wreen’s “The Ontology of Intellectual Property"—should signal that these are not your local IP attorney’s approaches. And yet if, as some predict, the tremendous pressure of the digital revolution forces wholesale revamping of copyright and IP law, some of these bigger questions—such as whether items that everyone can access at the same time, unlike traditional “real property” such as a house, should really be construed as “property"—may come to the fore.
In a similar way, Intellectual Property and Theories of Justice (Palgrave Macmillan, 2008), edited by Axel Gosseries, Alain Marciano, and Alain Strowel, all European scholars, brings justice thinking writ large to IP law. Both Posner and renowned justice theorist Thomas Pogge have rightly applauded the book for bringing considerations of fairness to behaviors such as free riding and to international regimes such as pharmaceutical patents.
IN Golan v. Holder, plaintiffs made the point that what the Supreme Court permitted in its recent ruling—the ability of Congress to move works from public domain to copyright protection whenever it sees fit (the majority opinion dismissed this concern as “hypothetical”)—will daunt creators and innovators not only in regard to the works (all foreign) that Congress sought to move into copyright, but also in regard to any work in the public domain.
If modern developments in IP demonstrate anything, it’s that the law, as well as philosophical thinking about IP, has been, and must be, driven by action—and not just the action of copyright lawyers, new-media entrepreneurs, and consumers.
Creators, as they have since the beginning of time, will need courage to fight the crimping of free expression that copyright expansion encourages. They must resist becoming control freaks over their own content (à la J.D. Salinger and the Walt Disney Company), and behaving like supplicants when they want to use that of others.
Examples of such courage—it may occasionally require an attitude of, “Go ahead, sue me—the fair-use bar will defend me and cost you far more than you’d ever win by litigation"—abound in Reclaiming Fair Use and the Duke volumes. IP law can overwhelm with its intricacy, jurisprudential complications, and brute power games. Yet a simple rule of culture still applies. Those who seek free expression will always face powerful forces that want to suppress it. For the first group to prevail, the opening step must always be not to ask permission, but to “speak,” in whatever brave form that takes.
