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Righting Copyright: Fair Use and Digital Environmentalism

Bookforum, February/March, 2005

copyright symbolWho 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.
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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 na?ve 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.”
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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.”