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| <nettime> Strategies for Freeing Intellectual Property" by Rick Prelinger |
"Yes, Information Wants To Be Free, but How's That Going To
Happen?: Strategies for Freeing Intellectual Property" Rick
Prelinger
Why Worry About IP While Chaos Rules?
As I write in late February 2002, the United States has
declared itself to be in a state of war. But even as our
government asserts anti-terrorism as its first priority,
corporations hustle to make the world safe for business. The
courts are clogged with intellectual property lawsuits.
Lawyers are busy churning out cease-and-desist letters to
alleged copyright infringers. Entertainment conglomerates
are consolidating their control over the fibers, cables and
switches on which programming is distributed. Hackers are
equated with terrorists and are forced to defend their
ability to explore, reengineer and retool hardware and
software. Content and advertising continue to combine into a
tediously promotional happy meal. The limits of permissible
speech in the mass media tighten every day. Not a quiet
time, not a happy time, and under wartime cover decisions
are now being made that will affect all our futures as
producers and consumers of information, culture, and the
arts.
Today, products of the intellect are copyrighted at the
moment of creation, patented before release to the world,
and trademarked before sale, born not as contributions to a
shared body of knowledge or heritage, but as "intellectual
property." Wars are raging over the ultimate control of IP,
and the terms of engagement seem to change almost weekly.
This conflict is likely to envelop us for a long time, and
as such it's hard to know how it will play out. But this
isn't an excuse for waiting to act. If there's any chance
that anti-capitalist models for the distribution and control
of content will ever work, we need to be thinking beyond
today's ruling paradigms.
In this essay, I hope to convince you that although a
critique and restructuring of copyright law (and the concept
of copyright in general) is immensely valuable, focusing
exclusively on changing copyright law is a smokescreen.
Copyright reformism focuses on fixing copyright law, rather
than articulating a more fundamentally radical vision about
how information, ideas, art and culture might be produced
and exchanged. It constrains us into thinking in limited
terms, terms that might not necessarily be our own, and most
especially forces us into defensive positions. When
copyright "infringement" is equated with stealing and
terrorism, when the free exchange of content is
criminalized, and when intimidating legal letters fly
freely, it is easy to feel defensive, and worse, to behave
reactively. When we are obliged to defend ourselves against
assaults motivated by someone else's agenda, we are fighting
for freedom of expression on unfriendly turf, and are
unlikely to win what we deserve.
Reformism is one of the first questions that arises when we
think about anti-capitalism ways of seeing intellectual
property. Is it really worth our time trying to solve
problems created by capitalist economics while capitalism
still prevails? What do we stand to gain by challenging
capitalist control over IP while other kinds of property
remain under the same owners? Why even bother trying to
synthesize a new theory of IP, a progressive version of
copyright law, or a strategy to overturn the carefully woven
net of legislation that benefits the "owners" of IP over the
rest of us? Perhaps most important, does liberating IP
benefit the many, or just the relatively few heavy content
users in the developed world looking for free music and
movies?
There are good reasons to develop anti-capitalist
perspectives on intellectual property. We might, for
instance, think of freer content as an end in itself, as a
radically different way of thinking about the distribution
of knowledge and culture, and as a utopian wedge that might
lead to freer ways of circulating other goods and services.
We might imagine a future where content functions to
increase consciousness, improve the quality of life, and
integrate culture into daily life, and consider how we might
get there. And, even as most high-demand IP remains under
high-level corporate control, there are a few equalizing
tactics that could tip the balance towards a different kind
of IP landscape a shared, profit-free body of knowledge,
culture, and entertainment whose very existence might
challenge long-lasting concepts of property ownership and
control and stimulate popular alternatives to winner-take-
all thinking. We might even imagine content that is not
simply created to distract or entertain (though distraction
and entertainment can be noble objectives too). Culture can
illuminate and demystify property relations, and changing
the way that culture is distributed can lead the way to
changing how property is distributed.
And all of us have an interest in halting current trends
towards increased corporate control over IP. The arguments
are familiar by now to most of us. By commodifying and
asserting ownership over ideas, art, culture and inventions,
corporations control much more than just intangibles. While
asserting that they stand for the protection of authors' and
creators' rights, large corporations quite often bind
creators to self-serving or coercive contracts that cause
the lion's share of royalties to remain in corporate hands.
Creativity, innovation, problem-solving, and all kinds of
social change are fostered and encouraged by the free
exchange of ideas and inventions. A society that places
impermeable barriers on the movement, exchange, and
appropriation of IP, such as we are now doing, places
frightening limits on its ability to evolve and progress. In
some cases control over IP actually poses life-threatening
issues, as in the case of patented drugs that are not
available at affordable prices to residents of developing
countries. Finally, the lack of a free (not a free-trade!)
regime for the exchange of IP that still fairly compensates
individuals for their efforts tends to prevent developing
regions build their own content industries that have a
chance of competing for their own people's attention.
Copyright Seeks (and Gets) Eternal Life
Copyright is not likely to disappear all by itself. It may
be under siege by new access technologies, but it is far
from dead. The "copyright-based industries" -- publishing,
entertainment and software -- contribute hundreds of
billions of dollars to the US economy. Intellectual property
is our second most valuable export, and more and more of us
labor to create, manage, distribute, sell and shrink-wrap
what passes for "content" these days. Though I'd like to
imagine differently, I find it inconceivable that the large
corporations that control intellectual property rights will
stand by as the fences separating their holdings from the
public domain melt down.
Copyright law states that works of the intellect are
copyrighted at birth beginning at the moment when they
become fixed in tangible form. But unlike organic creatures,
copyrights enjoy what seem to be an infinitely extendable
lifespan. Congress's original intent in drafting copyright
law was to grant exclusive rights for limited terms, linked
to the life spans of authors, in order that they could enjoy
the fruits of their labor while alive. Until 1978,
copyrights generally lasted 28 years and could, if
formalities were strictly followed, be renewed for another
28. Publication without proper copyright notice threw a work
into the public domain. This is why so many older US works
are out of copyright, unlike works that originate in most
other countries. After 1978, the US "harmonized" its
copyright laws with those of most other countries, extending
the term of copyright for new works created by individuals
to the span of their lives plus 50 years, and new works
created by corporations to 75 years. In 1993, renewals for
older works became automatic. The tragic death of John
Lennon at age 40 was cited in congressional testimony, as
paid lobbyists warned that his young son Sean might outlive
the terms of his father's copyrights, and see John's works
exploited without proper compensation. In 1998, the largely
undebated Sonny Bono Copyright Term Extension Act further
"harmonized" our copyright laws with our European trade
partners, extending terms to life plus 70 and 95 years
respectively. These laws have collectively kept hundreds of
thousands of US works out of the public domain, and restored
copyrights to perhaps millions of foreign works. Such
lengthy timespans lock works up for an inordinately long
time, but then corporations often live longer than people
do.
In February 2002, the U.S. Supreme Court agreed to hear
arguments in Eldred v. Ashcroft, a challenge to the Sonny
Bono Act. Plaintiff Eric Eldred, aided by a host of lawyers,
scholars, librarians and archivists, argued that continual
extensions of copyright law violate the constitutional
specification that copyright should be for a limited
duration. The Court's agreement that a constitutional
question is involved here has sent waves of concern through
Hollywood and the rest of the community of IP proprietors,
and excited many others. In contrast to the comparative
silence surrounding the original legislation, debates over
the fairness of lengthy copyright terms are now widespread.
Though it's impossible to predict how the Court will rule,
it is exciting to see generally arcane IP issues discussed
in the mainstream press, and the increased growth of
skepticism around the question of corporate control of IP.
Corporate copyright holders have also pushed to limit the
definition of "fair use" and, now, under the Digital
Millennium Copyright Act of 2000 (DMCA), to prevent just
about all unpaid copying, performance, distribution and
collecting of digitally based works. The DMCA encourages
copyright holders to build protection mechanisms into
technology, and then criminalizes "circumvention" attempts
to reengineer the technology, however well-intentioned (and
necessary) they may be.
Beyond Copyright Consciousness
Many commonly circulating ideas about IP predict the end of
copyright, following two major threads: technology killed
copyright, and copyright is anachronistic in networked
culture. Both of these notions are simplistic and
ahistorical, and I'll try to argue that they're
shortsighted. What we really ought to be talking about is
access to works. Though access is related to copyright, it's
really more fundamental to our freedom to think and
experience.
Trying to debunk the idea that technology killed copyright
is a tiring chore. Yes, the proliferation of new tech tools
makes it harder to control the unauthorized duplication of
copyrighted works, and such tools are certainly sustaining
another thrilling chapter in the arms race between geeks and
suits. But people are still renting videos and buying DVDs.
Yes, millions of people used Napster and now other peer-to-
peer services to collect semi-degraded music files, but the
record companies cut Napster off at the knees. As soon as
its successors become big enough to pose a threat, the
record companies go to court to protect their oligopoly.
(Interestingly, the judge who essentially closed Napster
down has just opened the way for them to sue the large
record companies for conspiring to control the recorded
music business. Stay tuned.)
Many prominent individuals have lined up behind the notion
that we live in a post-copyright age. They try to convince
us of the total irrelevance of copyright, that "information
wants to be free." Others posit that the disintermediating
characteristics of the Internet will empower individual
authors and artists by permitting them to sell their work
directly to their audiences. People like John Perry Barlow
and Esther Dyson imagine an era where creators are
compensated in a royalty-free realm, where reputation,
expertise, consulting chops and sales of collateral products
almost magically generate income. This isn't completely off
the mark, because this works for some people, notably the
proponents of those ideas themselves. Like so many economic
schemes today, it presumes a winner-take-all model. But how
many writers can give away their texts and survive on
honoraria from guest slots on CNN? And, ultimately, who
cares enough about most creative people to help provide them
with a living? As long as IP is bought and sold as a
commodity, market rules will apply.
Perhaps copyright needs to be reincarnated in some modified
form. I see nothing wrong with a system that protects the
rights of individual creators, especially if it helps to
equalize their position with regard to the entities that may
help distribute their work. But what should those rights be?
I'm not yet prepared to say. In many ways copyright law has
outlived its social and economic function. And this is why I
am sympathetic to those who support formative chaos, those
who rhetorically call for total and complete disobedience of
copyright law, rather than cloaking their efforts under a
veil of disingenuous responsibility. If we're to transform
authoritarian copyright laws into social practices that
protect creators and benefit society in general, a period of
flux and experimentation will be essential.
Experimentation may be essential for yet another reason,
too. Other kinds of rights are asserted in cultural works,
rights that are harder to dismiss than copyrights held by
anonymous corporate entities. These are rights claimed by
stakeholders who don't hold copyright: unions seeking to
protect their members against exploitation; creators who
hold "moral rights" guaranteeing that their work will not be
performed or distributed in mutilated or incomplete form;
individuals whose creativity may make up part of what we
see, hear or read in a particular work. How can an anti-
capitalist framework for IP compensate the writer, director,
composer, or actors for their work in a film over that
film's life? How can such a framework guarantee that
someone's work won't be replayed in a distorted form? Should
such compensation or guarantees even exist? These are
difficult questions.
Copyright law is hundreds of years old. Its long history and
densely structured system of legal precedents would itself
be enough to harden it against anyone who would dare to
reject or ignore its power, and that doesn't take account of
the power held by the world's largest copyright owners.
Copyright or, more accurately, the restriction of the right
to copy and redistribute is believed to be the base of the
content industry, rapidly growing into one of the world's
largest and most profitable industries. It is possible that
one day IP-based industries will together form the largest
economic sector of all. It is widely believed that copyright
is necessary for these industries to flourish. It is also
widely felt that interference with or infringement of
copyright constitutes interference with the well-being of
the present and future capitalist economies. And since the
concept of IP labels products of the intellect as
"property," unauthorized appropriation or movement of IP
constitutes theft. Advocacy of theft earns no friends for
the advocate. These terms trap those of us who believe in
freedom of expression.
Perhaps instead we should think of IP as "born free," which
runs directly counter to the U.S. Copyright Act of 1976,
which declares that all human works capable of being fixed
in enduring form are copyrighted at the moment of their
creation. But beyond that, we should also consider whether
the struggle over copyright is really the most meaningful
struggle for us right now. I'm going to propose that we
focus on access instead.
Access and Authorship
"Access" to works of the intellect doesn't just mean being
able to read, listen, watch, or feel them. Today, it also
means being able to incorporate other people's works into
ones own: to quote, resynthesize, recontextualize, sample,
appropriate, or plunder. Today's reader is also a writer;
today's listener a sampler; today's spectator an editor or
director. Many of us are no longer content with simply
reading, listening or viewing works -- we want to
appropriate material from other works and make something
that is more than the sum of its parts. This is a pretty
obvious point, and it's also obvious that unyielding
copyright law limits freedom of expression for all of us.
What's less obvious is that there are also other ways of
limiting our ability to quote, cutup and recontextualize.
In order to be an active reader/listener/spectator, we need
access to materials. Yet aside from current pop culture
stuff widely available in American superstores, such access
is currently quite difficult. One reason for the popularity
of peer-to-peer technologies was the sheer diversity of
music and sound that they've made available. Much of this
audio was hitherto inaccessible, locked in record company
vaults, private collections, archives and radio station
libraries. In this sense the stuff that's online and
available via p2p functions as a virtual archive that's
totally available to all.
Quite the opposite is true in other media. Our history and
culture are increasingly becoming private property rather
than public resource. For instance, consider still
photography. Hundreds of millions of historical still images
are now controlled by two large corporations, Getty Images
and Corbis, who are actively competing for top market rank.
Unfortunately, these collections are generally inaccessible
without payment of substantial research and licensing fees.
In other media, textual material, music and works of art are
now owned or controlled by a dwindling number of
rightsholders. It is now highly probable that most access to
cultural and historical materials will follow the paradigm
of "billable events," with few exceptions or discounts for
nonprofit or public users. E-commerce, of course, makes it
much easier for rights holders to charge for the experience
of listening to or eyeballing content.
The function of not-for-profit entities like libraries,
museums and archives is also changing. They no longer exist
simply to offer reference or read-only access to their
holdings. With the proliferation of authoring tools in all
media and the vast increase in all modes of cultural
production, many access requests now anticipate the
reproduction of materials for reuse and public distribution,
and this trend is running headlong into the limitations of
copyright law. Although the Internet is dramatically
increasing the population of creators and publishers, there
is less preexisting content available for reuse.
The access problem exists for both copyrighted and non-
copyrighted works. Many public domain works exist only in
libraries, archives, or private collections, and their
custodians charge for access. Though fees may pay for
storage, preservation, cataloging, and the production of
viewing copies, it ultimately defies common sense for public
domain works not to be freely available to the public. If we
act to lessen or to end copyright's authoritarian control
over access to culture, we must make sure that other
controls don't take its place.
Guaranteeing Access Through Preserves and Conservancies
One transitional means for making content and culture more
readily available may be the "intellectual property
conservancy" or "IP preserve." To think about strengthening
public access to cultural resources is to consider basic
questions of property and its privatization. It's worth
looking to history and landscape for precedents and a
possible solution. In the late 19th and early 20th
centuries, private corporations exerted unprecedented
pressures on the "public domain" -- American land and
natural resources. They owned or controlled key tracts of
productive land, often as a result of government give aways
or favoritism. The aggressive pursuit of extractive
interests such as mining, logging and agriculture threatened
to exhaust public lands and encroach upon naturally or
culturally significant sites. In response to this threat,
the conservationist movement lobbied to organize a system of
national forests, parks and monuments. By preserving a
limited public sphere not subject to the exercise of private
property rights, the benefits of some wilderness and
cultural sites were preserved for all.
In much the same way, an intellectual property preserve
might house content and protect it as public property. The
preserve would contain textual material, still and moving
images, works of art, sounds and digital information of all
kinds, plus the rights to reproduce and disseminate them.
These assets would be acquired in two ways. First, the
preserve (supported by private or government funding) would
purchase certain key resources to build up a core collection
of content. Second, the preserve would solicit donations of
content. These donations might not necessarily include the
physical materials representing the content, but would
definitely include copyrights or rights to reproduce.
Why would copyright owners (or owners of public domain
materials) ever cede their properties to the preserve?
First, and perhaps most important, tax incentives. Amend the
tax code to allow substantial deductions or tax credits for
donating valuable copyrights or materials. Second, following
the precedent of public land acquisitions, key donors might
be compensated with private funding. Third, promote public
recognition that an act of donation is a prestigious deed
benefitting the world cultural heritage. Active efforts to
create such organizations are now underway. One, called
Creative Commons, has been announced and plans to open in
the first half of 2002.
There is nothing particularly radical about the practice of
a preserve. It's an attempt to work within the system, a
voluntary expropriation, a creation of incentives for
property holders to do the right thing. Ultimately, though,
its goals are to rebalance private vs. common property for
mass benefit. The preserve aims to make a significant
portion of our intellectual and cultural property available
to one and all -- both individuals and corporations -- for
nothing more than the physical costs of duplication and
transmission. Its concept supports freedom of inquiry and
freedom of expression by preserving the right to quote, to
duplicate, to appropriate preexisting material. Though it
might require the support and expertise of elite elements to
organize something like an intellectual property preserve, a
preserve could mount a fundamental challenge to our
definitions of public and private property. In so doing, it
would be a greater force for change than any possible reform
of copyright law.
Other Models
The open-source model is rooted in communitarianism and the
hacker ethic. Though the details of open-source philosophy
are beyond the scope of this essay (but easily available
online), it points to a possible future where copyright
owners might no longer assert a stranglehold over creativity
and innovation. Open-source software, text, music, movies or
any other kind of content are released under a license,
sometimes known as the GPL (General Public License),
permitting anyone to use, modify, distribute, or publish the
content in original or modified form. The catch is that
whatever anyone might add to the original material itself
becomes open-source and available for free use in the same
way. Rather than being compensated for simple ownership of
copyright, people or companies in the open-source world are
rewarded for the value they add. If a person adds
significant functionality to a piece of program code, writes
a good manual, corrals an unruly collection of software
tools into a coherent package, people buy that and hopefully
creators make money. Extending this model to other kinds of
collaborative creative work, such as music and movies, opens
up fascinating possibilities.
Then there's simply refusing to recognize the authority of
copyright. In recent years anti-copyright artists and
musicians have built a rich and entertaining tradition of
appropriation, collage, uninhibited quotation, and sampling,
much of which has coalesced as part of the Plunderphonics
movement. Work of this kind is at once a harking-back to a
much simpler world of hunting and gathering and a fast
flash-forward to a smarter utopian society, where artists
are free to quote and manipulate the stimuli that inspire
them. While prominent challengers to corporate IP control
like Napster get nailed, most individual artists fly under
the horizon of corporate legal departments (or are
sufficiently marginal to dodge cease-and-desist letters).
Their work is refreshing and, from an anti-capitalist
perspective, points the way towards a crisis of legitimacy
for copyright, as it encourages individuals to disobey a law
to which their conscience objects.
Libraries are one of the last remaining deeply democratic
institutions in Western society, providing access to arts,
culture and ideas to everyone. At their best, they stand for
and actively support freedoms of speech and inquiry, and
impose no property or income qualifications upon their
patrons. As access institutions, they are unequalled. Their
freedom to continue providing these resources to all for
free (and even to preserve digital information for public
access) is currently under attack by publishers and
copyright holders who would like to make every access to
their works into a "billable event," and we should defend
their ability to continue doing what they have done for
hundreds of years. In addition, libraries should be able to
loan material as they have always done, but with the
assistance of access technologies such as the Internet, so
that they serve a worldwide community with a minimum of
difficulty.
Another thought that has recently emerged recalls the idea
of IP preserves. What if certain cultural resources were, by
popular agreement, placed squarely within open territory?
There has been discussion in Europe about placing historical
moving images from the World War II period into the public
domain , so that they will be free for use by all without
the sense that anyone is profiting from their exploitation.
Moving concretely in this direction, the German government-
chartered foundation that controls the copyrights to films
produced under the Third Reich has reportedly begun to
forego charging license fees for reuse of clips from certain
key Nazi propaganda films. Though this is certainly a
reformist idea, it is easily scalable to encompass ever-
increasing areas of content if there is pressure to make it
happen.
Conclusion: Scenarios of the Intangible
To help frame possible tactics for freeing IP, let me
propose three non-exclusive scenarios for the future of
intellectual property. All already have come true, at least
in part.
1. The dystopian scenario. The current content grab
escalates. Greater territories of ideas and culture come
under ever tighter corporate control. The distribution
infrastructure itself comes under the control of copyright
owners. The "model of scarcity" rules: every cultural
microevent (reading, listening, watching, browsing online)
becomes a billable event.
2. The diffuse scenario. This most closely describes where
we are now. The dystopian scenario is well on the way, but
there is still considerable "public space" for IP to
circulate freely, largely because of an active culture of
resistance to tighter and more centralized control. The
coexistence of public and private spaces is uneasy, though,
and highly stratified: content with "mass appeal," whatever
its ultimate worth, is in general fully under private
control and costs money to access. Since alternatives to the
present public/private standoff are underdeveloped, many
creators choose the default alternative of letting major
corporations pretend to protect them.
3. The utopian scenario. This evolves out of both previous
scenarios. Essentially, control over IP collapses under its
own weight. People reject (or cannot afford) authoritarian
and unwieldy systems that limit their access to arts,
culture, and entertainment. Fringe cultures move to the
mainstream as mass cultures become too expensive or too
difficult to access. A "model of plenty" evolves: new means
of rewarding creators emerge that do not necessarily require
the intervention of corporations to exist.
Anti-capitalists seeking to free IP might think about how
their tactics fit into each of these scenarios. Should we
acknowledge today's diffuse situation, acting incrementally
to increase and defend public territory within a mixed
landscape of public and private IP control? Should we reject
corporate control altogether, even though it might render us
marginal for some time? Should we organize and build
alternative structures for the exchange of IP, structures
that might help us transition into a post-corporate era?
Should we do all of these things?
Rick Prelinger (http://www.prelinger.com) is a film
archivist and cultural historian. He is currently working on
a book about the history and culture of radio monitoring and
a film on menace and jeopardy in American culture.
RESOURCES
More detailed information on the issues mentioned in this
essay can be found in the books listed below. Here also is a
list of a few websites that offer frequently updated
information on fast-breaking IP issues.
Chris DiBona, San Oakman and Mark Stone. Open Sources:
Voices from the Open Source Revolution. Sebastopol, Calif.:
O'Reilly & Associates, Inc. 1999.
Lawrence Lessig. The Future of Ideas: The Fate of the
Commons in a Connected World. New York: Random House, 2001.
Jessica Litman. Digital Copyright. Amherst, N.Y.: Prometheus
Books, 2001.
Kembrew MacLeod. Owning Culture: Authorship, Ownership and
Intellectual Property Law. New York: Peter Lang Publishers,
2001. Kembrew MacLeod trademarked the phrase "freedom of
expression" as a prank; more details at
http://www.kembrew.com.
Center for the Public Domain, a nonprofit foundation
supporting the growth of a healthy and robust public domain.
http://www.centerforthepublicdomain.org
Copyright's Commons, a "coalition devoted to promoting a
vibrant public domain." Good links.
http://cyber.law.harvard.edu/cc/
Detritus.net, a great site devoted to recycled culture in
all its manifestations. Worth visiting regularly.
http://www.detritus.net
The Negativland site has an excellent IP resources section:
http://www.negativland.com/intprop.html"
Hydrarchist writes:
"Rick Prelinger is a tireless agitator against copyright
laws, and is responsible for the placing on line of a huge
volume of public domain films that others can appropriate
for their own ends. This essay is his contribution to The
Anti-Capitalism Reader, edited by Joel Schalit."
http://info.interactivist.net/article.pl?sid=03/01/13/012208
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