Forum in our series on copyright will focus on the ways in which
copyright law affects individual artists and the intellectual
life of the community at large.
Forum examined Who
Owns Research and Teaching? The second in the series looked
Vaidhyanathan is assistant professor of Culture and Communication
at New York University and the author of Copyrights
and Copywrongs: The Rise of Intellectual Property and How it
Threatens Creativity (New York University Press, 2001)
and the forthcoming The
Anarchist in the Library: How Peer-to-Peer Networks are Transforming
Politics, Culture, and Information (Basic Books, 2003).
Zittrain is the Jack N. and Lillian R. Berkman Assistant
Professor of Entrepreneurial Legal Studies at Harvard Law School
and co-founder of the school's Berkman
Center for Internet & Society where he served as the
first executive director from 1997-2000. His research includes
digital property, privacy, and speech, and the role played by
private "middlepeople" in Internet architecture.
is an edited summary, not a verbatim transcript.]
explained how his interest in rap and hip-hop music, and
particularly its signature use of sampling - borrowing
and incorporating passages from previously recorded music
- led him to examine the American copyright system, its
history and its effect on creativity.
"tapped into rap music as a young person in the 1980s,"
he said he noticed in the early 1990s that while the lyrics
were getting "more interesting, more challenging
and controversial, the music itself was getting simpler
and thinner, less interesting, less self-referential,
less intertextual; it stopped talking to its tradition."
the change to an increasing number of lawsuits and cease-and-desist
actions aimed at preventing sampling.
As he began
to examine copyright, Vaidhyanathan said he expected to find
that American copyright law would be hostile to non-European
collaborative traditions of creation and communal invention.
"I assumed . . . [that] African culture wouldn't fit the
model of European law, but that's not the case."
in fact, that original American copyright law "allows for
a whole lot of play, a whole lot of freedom." He identified
several "conditions and loopholes that make copyright work
as an incentive system while mitigating its ability to act as
a system of censorship":
Use - the right to use copyrighted material for purposes
such as teaching. This is not a right, but the principle of
Fair Use can be used as a defense when there is an accusation
of copyright infringement.
Sale - this principle emerges from the idea that when you
buy an object such as a book, you own the book but not the material
in the book. You can do anything with the book itself; libraries
exploit this principle. But "in the digital world it gets
a lot more messy" because every first purchase also involves
the making of a copy.
Dichotomy - the "least understood safeguard" -
is the idea that although copyright protects particular formulations,
a string of text, it does not control the underlying ideas.
Copyright doesn't protect ideas or facts or data. The ability
to express and criticize ideas enables thought and speech in
a democracy, Vaidhyanathan said.
Domain - This is the idea that the copyright monopoly created
in law is not perpetual and ensures that the public gets a return
on its agreement to grant a copyright. It's important to remember
that the original term for copyright in the U.S. was only 14
of copyright - the current term is a shocking 95 years - seem
to undermine the founding principle of allowing public use of
copyrighted ideas within a reasonable time, Vaidhyanathan said.
1990s digital technology permitted the copying and sharing of
text and especially of music on a scale new in history. In reaction,
Vaidhyanathan explained, powerful companies have enlisted lawyers
to achieve two things: "to exploit emerging global markets
and maintain monopoly pricing on their archives."
was the Digital
Millennium Copyright Act. "That changed the game,"
Vaidhyanathan said. "Copyright used to be in the domain
of human beings and human judgment, but with the Act it becomes
a function of technology. The Act supports technological solutions
to human problems; a shift from humanity to technology."
ZITTRAIN characterized the "current intellectual
property moment" as a collision between Title
17, the U.S. copyright law, and "what we call
the past, the laws governing copyright and the reality
of how people used and reproduced copyrighted materials
co-existed according to a range of common-sense norms,
Zittrain said. Today, however, publishers are eager to
protect more and more material, while individuals are
able to appropriate and share a vast new range of previously
protected work. "We're all being goaded on"
by the power of emerging digital technologies.
use of MP3 players and peer-to-peer services to access and exchange
music over the Internet, Zittrain said, are examples of what
can be seen as "an encroachment into territory formerly
controlled by industries and not individuals."
illustrate the digital appropriation of copyrighted matter,
Zittrain displayed a Web site called "Illegal Art"
that features satire and other creative works incorporating
copyrighted materials. Brian Boyce's "State
of the Union" combines images of President George Bush
with scenes from the Teletubbies television show; another item
is a mock-advertisement urging people to watch a War with Iraq
as a sporting event complete with McDonald's as a sponsor.
boxes," Zittrain said referring to computers "can
make cultural statements. This is a legal battle becoming a
he said, is to find ways to permit reasonable copyright protections
while also allowing for the operation of common-sense arrangements
of the sort that existed before the digital revolution. He identified
and Music Licensing Act of 1998 as an early attempt at such
a compromise. This act is overly complicated and imperfect but
its goal is important: to allow the playing of music in restaurants
under certain circumstances without payment.
case is another big opening salvo" in the copyright
battle, Zittrain said. This is the case, recently argued before
the Supreme Court, that challenges the latest extension of copyright
by an additional 20 years.
efforts at compromise," Zittrain concluded, have largely
failed so far to challenge corporate and Congressional extensions
of copyright. "By getting the sense that copyright lasts
forever, we get the sense that it is property. When you begin
to think of copyrighted material as property, the fact that
it would revert to the public domain seems insane."
GORDON, professor, Boston University Law School: In terms
of passive copying - copies are made in a computer cache when
someone calls something up on the Web - most of the legal community
is pretty much willing to roll over and play dead. How do you
feel about RAM (random access memory) being defined as a copy?
And is there any expectation of anyone challenging such a notion
Running a program requires making a copy of it, and the courts
have upheld this as a copyrightable event. Do I want to see
that reversed? Yes. This is the kind of situation where reality
should dictate a reasonable solution. I would love to adopt
a functional rather than literalist view of this matter, so
that it is understood that whenever your browser caches a page,
you aren't making a copy. It seems to me that is what prevails
in practice, so it would be good to bring the law in line with
I don't think the idea that a RAM copy is a copyrightable event
COOMBE, CMS visiting scholar, Berkman Center fellow: I worry
that we are discussing all of this within an American legal
framework, and if we put all of our eggs into the American legal
basket we will be very vulnerable. Some of the democratic safeguards
that Siva mentioned might be seen as restraints of trade in
other countries. I come from Canada, where there is no fair
use. And many jurisdictions have rejected parody as a defense.
Many jurisdictions have blanket licensing. You do pay royalties
in most jurisdictions. This alarms me.
You should be alarmed for those very reasons. Each one of those
safeguards is under attack in the U.S. and abroad. While there
are treaties such as the TRIPS
Agreement that set a baseline for intellectual property regimes
in countries that have signed it, as we move from a set of national
principles into a global space, we are more likely to lose these
How do you reconcile these so-called democratic safeguards with
something like the fact that Martin Luther King Jr.'s widow
has copyrighted the "I Have a Dream" speech? It is
now a civil violation to show rebroadcast footage of that speech
without paying royalties. How do you feel about that?
First of all, Dr. King's only incentive in making that speech
was that he wanted to live in a better country - the speech
should be in the public domain because it belongs to all of
us. It should, of all things, be public because it is a part
of our history. This level of commercial exploitation is alarming.
I am alarmed by the King family's actions in terms of the diminished
access to all of King's work.
Don't democratic principles dictate that you play that speech
as often as possible?
Democratic principles do, but the law doesn't always go along
with democratic principles.
Different countries have different starting points as to how
they look at this. It is tempting to invoke apple pie and Chevrolet
here. But we have two American principles in conflict: the First
Amendment guaranteeing free speech, and another imperative that
says, "the business of America is business." And it
is the Calvin Coolidegism that seems to dictate that if someone
creates something they should get their fair share.
talking about a process for rolled steel it seems weird to be
talking about free this or free that. But when we are talking
about the "I Have a Dream" speech, the idea that you
can't say, "I have a dream" without paying someone
a royalty is ludicrous.
is suggesting let's get the First Amendment into the mix. I
think that's a great idea, although a messy one.
FINKELSTEIN, programmer: We've talked about what the problem
is, but what are the best ways to get to the results we want?
What can non-lawyers do? I asked Richard Stallman this question
2001 Forum talk on copyright). He said if you see a movie
by a big studio and you don't like it, then don't pay for it.
That doesn't go very far. I am amazed by the amount of money
on the other side of this battle. If we don't have millions
of dollars, what do we do? Just sit back and cheer on Lawrence
That's part of it. What can we do? Plain talk is one thing.
Everyone involved in this is trying to come up with a better
vocabulary for discussing it. We actually have a growing army.
It's a loosely knit bunch that includes hackers, users of material,
and, most importantly, librarians. There are 30,000 librarians
in this country who are very upset by all of this. They all
vote and they talk to their congressmen. They are politically
active right now, and if an objectionable piece of legislation
is under consideration, they'll write letters and circulate
you bring in religious conservatives who want to show
movies to their kids without nudity, then you have a bigger
group. Then you get a group of talented lawyers involved.
It is starting to happen. Unfortunately, the battlefield
is global now and we don't have troops aligned globally,
except for the hackers.
This suggests a three-pronged attack. First, you instruct
people that this is a political issue, just as the environmentalism
movement had to do.
you work through the judiciary such as the Eldred case is doing
in challenging the Sonny Bono copyright extension. That's what
Lawrence Lessig calls "speaking reason to power."
And the third thing, also sometimes used by the environmental
movement, is to realize that what's on the other side is not
something evil, it's an economic and predictable force. Then,
you try to co-opt those on the other side, again as the environmental
movement has done.
The Internet is heavily regulated in China. As Americans, we
talk about the First Amendment, but how do we maintain our principles
in the global realm without getting squashed?
The free flow of information predates the U.S. Constitution.
It is common and universally applicable. In France in the mid
1700s, discussion of politics was the king's domain. It was
an information environment not unlike China today. There were
four or five places a round Paris where people would meet to
discuss politics. That sort of semi-public sphere and peer-to-peer
communication is really where the revolution was born.
it doesn't help when companies such as Yahoo! are in cahoots
with the Chinese government to limit communication, but these
values are not alien to the rest of the world.
BOWIE, lecturer, Kennedy School of Government: You mentioned
the free flow of information. It seems as if the First Amendment
is to be the model for the free flow of information doctrine,
but it is not absolute. The First Amendment has all kinds of
exceptions based on competing values. Moreover, it is not an
end in itself but a mechanism for spreading democratic principles
and values and behavior. Jonathan mentioned national security
interests. Well, all countries have national security interests,
and development is a big one.
and laws seem to favor information-haves, so what should nation-states
other than those in the west do in terms of their own development?
They don't have much choice if they've signed onto TRIPS, which
standardizes a baseline of intellectual property protection
in a whole lot of areas.
America was a nation of pirates until recently. We had that
gestational period where we wouldn't have signed onto any international
copyright agreements because standardization would have stifled
What has brought about the diminishment of the public domain?
I don't think anyone has yet made a real compelling case for
the value of the public domain. Those of us in the legal professional
haven't yet done what the environmental movement has done by
putting the right koala bear on a poster and asking, do you
really want kill this bear? We haven't gotten to that, but we
have to do that with the public domain.
At the same,
I think the publishers and other copyright holders have so far
done a good job of painting those of us who care about the public
domain as nuts, as the radicals.
--compiled by Brad Seawell
--photos by Kelly Clancy
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