From telling Iran they shouldn’t torture quite so many bloggers to complaining about China hacking Google, America is big on pushing Internet freedom around the world these days. Even before the Arab Revolutions, ensuring Internet freedom was an official foreign policy objective. But you know what would make us more plausible advocates for a free Internet? If we had one.
Note: This column was originally featured in the Holiday 2012 issue of the magazine.
Every year in much of the world, a year's worth of human creativity becomes public domain. Not in America, though, where we are in the middle of a 20-year drought of creative freedom, on account of copyright term extensions.
The public domain is that bit of human creativity that everyone and no one owns, creative work not covered by intellectual property law. Works by Shakespeare, Verne, and Dickens, all the books of Project Gutenberg, are free to download, and free to use. The public domain is completely free speech that anyone can listen to, yell at, rework, build upon, sell, or share. It's also one of the reasons we have intellectual property in the first place.
Make no mistake, we are living in the future. In a matter of moments, we can publish our thoughts, communicate with people on other continents, or start downloading more information than we can ever consume. We are presented with hundreds of great offers every day—each with a thousand caveats. We hear about hackers stealing identities and kids being sued for copyright infringement, and even a New York socialite slap-fight taking place in an anonymous forum can take the national stage. The future is odd, indeed. To help you get some of it straight, we sat down with various lawyers and asked: How do our rights work in the digital age? Can you get in trouble posting messages about someone online? Are there exceptions to copyright? Is it legal to back up your ebooks? Not all of these questions have clear answers, and some answers don’t make much sense. We might be living in the future, but the legal system was designed to deal with the increasingly obsolete present.
Ah, the humble End User License Agreement. You tear through them, you click “I agree,” but what exactly are you agreeing to? I don’t actually know, because like you, I never read them.
Claiming to read all your software licenses is the reverse of masturbation—90 percent admit they don’t do it, and the other 10 percent are liars. It’s hard to get through a whole day without agreeing to the occasional complex contract, we definitely couldn’t get through the day if we read them.
These days, companies claim to sell us their EULA in lieu of just selling us their software, to give themselves powers over their software the law doesn’t give them. How much power? No one exactly knows. This last-mile legislation by companies has met with mixed response when it goes to court.
ACTA, the Anti-Counterfeiting Trade Agreement, is a treaty on international IP enforcement being secretly negotiated between various nations and trade groups, because apparently the normally inscrutable WIPO (World Intellectual Property Organization) wasn’t arcane and opaque enough. Documents related to things like copyright enforcement at borders (read: taking your iPod away) have been given classified status as a national security matter by executive order. Really? National security?
When did national security get this lame? ACTA is making me miss the Cold War. Back then, when governments and corporations did back-room dealing, covering up their sinister moves with callous disregard for their citizens’ rights and well being, they were covering up doomsday nuclear stuff on sexy ’60s microfiche. They also had the decency to protect their secrets from James Bond with sexy spies and ninjas.
I’m going to say something I don’t get to say enough: Copyright can be great. It can provide a living wage, spread knowledge, and even sometimes enhance art. It gives us Open Source, viral art, and countless creative works that would have died in the desk job. Many of the worst uses of copyright are actually misuses, deceptions, and hustles. They often trade on how confusing copyright is, giving too much power to legally worded nonsense meant to squeeze money or restrict use that’s all bark and no legal standing.
There are so many bogus claims out there, high and low. Even the notice on the White House’s Flickr stream says pictures are posted “only for publication by news organizations and/or for personal use printing by the subject(s).... The photograph may not be manipulated in any way....” It’s nice they tell you why they posted it, but they’re not telling you what you’re allowed to do with it. The license link on the same page explains that all intellectual work of the U.S. government is “not subject to copyright in the United States and there are no U.S. copyright restrictions on reproduction, derivative works, distribution, performance, or display of the work.” You’re allowed to put horns on Obama’s picture and march down the street with your derivative work claiming he turns into a lizard at night and eats janitorial staff. You’d only be violating the laws of common sense.
Elinor Ostrom recently became the first woman to win the prestigious “fake” Nobel prize for Economics, for her research on how self-governing groups successfully share resources. She spent years refuting the idea of the Tragedy of the Commons—a thought experiment dating from 1968 that basically said anything shared would get spoiled because people would only value something they owned. The man who authored the idea, Garrett Hardin, presumably observed very unruly preschoolers.
Ostrom actually looked at how people share finite resources like forests and grazing land, and found that with the right ground rules people not only did fine, they did better than companies and governments. Yipee for her and all, but why am I telling you about it in a column about digital rights and IP?
Turns out Ostrom laid the groundwork for thinking about the commons, including our very own digital commons. Her work also shows in economically solid terms how and why total monopoly rights, like copyright and patent, might not always be the best for society. Ostrom showed that, when a commons can manage itself, the proximity of the users and the governance, i.e., the two being the same thing, makes the system work more efficiently than either centralized government or strong property rights.
This may seem odd, but I’d like to recommend a movie this time. It’s called Sita Sings the Blues. It’s an animated retelling of the Hindu Ramayana interwoven with commentary about the story and the creator’s real life troubles, set to the 1920s-era songs of Annette Hanshaw. I know, not what you were expecting, but trust me. It’s in turns hilarious, lush, sad, and beautiful. It’s worth your time, and it’s free at Sitasingstheblues.com. Go ahead. The rest of the column will still be here when you’re done.
See, wasn’t that great?
Most talk of whether copyright is restricting free expression is theoretical, but for film makers like Sita’s Nina Paley it’s a real and common problem. Paley read the Ramayana and discovered Hanshaw’s jazz singing around the same time that she lost her relationship, and got inspired. It’s often a bit of music or a shot with something in the background that gets indie filmmakers in trouble, but Paley was particularly stuck.
Like the other media industries, newspapers are having a hard time finding people that still want to give them money. Unlike music and film, newspapers aren’t selling to the customer so much as selling the consumer to the advertiser. But with circulations dropping and basically infinite new ad space becoming available on the Internet, advertisers aren’t signing up in droves. This being the news biz, there’s no lack of people to talk about why or what to do.
Some media pundits think readers who might pay are defecting to blogs. Others think Google News is being evil. Still others blame Craigslist.org for the death of classifieds.
Whatever the cause, my colleagues are running to the government for a bailout. Unlike car makers and banks, they aren’t asking for huge piles of money. They want a legislative bailout.
I often get questions in email, or at conferences or parties, about points of IP law. I try to explain that I Am Not A Lawyer or that, dang, this is a party, but most people’s questions about what’s illegal are easy to answer (ripping DVDs: yes; ripping audio CDs: no; drunkenly singing “Happy Birthday” through a bullhorn at a wedding: yes; making a mashup song: depends what state you’re in). But I’ve realized that’s not really what people are asking me, because there’s a big difference between telling you what’s illegal and telling you what not to do.
Unlike much of law, copyright law requires that the rights holder go to the trouble of suing. If they don’t want to, you can claim their masterwork as your own and do a rendition in armpit farts on national TV, make a mint selling the recording, and never have a spot of trouble with the authorities.