Excerpt: "Beyond the Blogosphere: Information and Its Children"

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  • Posted on: 5 October 2011
  • By: Aaron Barlow

Here's a little bit from the book Robert Leston and I have just completed, Beyond the Blogosphere: Information and Its Children.  It will appear from Praeger in December:

In movies, in music, and in other areas, copyright has limited the intellectual commons, and the “intellectual commons contains the raw materials that people use to create works” (Henry Mitchell, The Intellectual Commons, xi-xii). When it is constrained, creation is restrained, which is doubly unfortunate, given the fact that there is no scarcity when the raw material is—or should be—infinitely reproducible. What copyright has done is to create boundaries where none existed or, as some would argue, need to exist. Though there may be justification for boundaries of some nature, the fact remains: copyright as practiced today, whether it is meant to or not, constrains creativity. Many owners of copyright may argue otherwise, that copyright enables creativity, but the evidence says otherwise. Certainly, the beneficiaries of copyright are rarely the actual creators.

All four of the primary aspects of legal protection for Intellectual Property (IP): copyright, patents, trademarks, and trade secrets, have impact on the new digital environment, but it is copyright that is proving to be the most important currently, and most contentious, with patent following somewhat behind. After all, the word is the prime carrier of information on the internet; and the word itself, in reproduction, is at the heart of copyright. In addition, just about all of the other means for conveying information on the web, primarily video, photo, and sound applications, had also come under the same copyright protection by the time the internet came into wide use.

In the United States, debate over copyright “is driven by the interaction of three conceptions: a pragmatic or economic point of view, a view that focuses on the property rights of creators, and a view that focuses on the uncircumscribed nature of ideas and the inherently communal nature of the creative process” (Mitchell, 13). The tension between these has led to the development of four ways by which copyright law attempts to ensure that the user, and not just the creator, can make maximum creative use of the original work. These are (1) the fair use doctrine, (2) the distinction between the expression itself and the ideas carried, (3) the right of unimpeded resale, and (4) the limited duration of copyright itself.

Fair use “allows anyone to copy, quote, and publish parts of a copyrighted work for purposes of commentary, criticism, news reports, scholarship, caricature, or even . . . recording and time-shifting of television programs” (Marjorie Heins, “ The Progress of Science and Useful Arts ” : Why Copyright Today Threatens Intellectual Freedom, 8–9

According to that defense motion in the Democratic Underground case:

The fair use doctrine “creates a limited privilege in those other than the owner of a copyright to use the copyrighted material in a reasonable manner without the owner’s consent.” Fisher v. Dees , 794 F.2d 432, 435 (9th Cir. 1986). It permits and requires courts “to avoid rigid application of the copyright statute when, on occasion, it would stifle the very creativity which that law is designed to foster.” (“Motion for Summary Judgment,” 12/7/10, Righthaven v. Democratic Underground, United States District Court for the District of Nevada, 10, http://www.eff.org/files/filenode/righthaven_v_dem/PlfMSJ.pdf)


Current American copyright law is rather vague on fair use, and its limits have not been clearly established by the courts. The law itself reads:

§ 107. LIMITATIONS ON EXCLUSIVE RIGHTS: FAIR USE
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work. The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors. (Copyright Act of 1976 at 17 U.S.C. § 107)

These four factors are all rather vague, allowing groups like Righthaven the room to interpret them as narrowly as possible and for other groups to see them as granting a great deal of leeway. Only the passage of time, with new determinations by the courts or through new laws, will tell how fair use will ultimately be defined.

The distinction between the specific expression covered by copyright and the ideas that expression carries, which are not covered (though they may be protected under patent or trademark or trade-secret laws) by copyright, always proves difficult to define, for changing phrasing here and there (for example) is not enough for claiming that ideas are being used and not expression: but where’s the line? Fair use aside, just how much of something needs to be changed for the work to be distinct enough to evade copyright challenge?

The unimpeded resale concept is, among other things, what makes lending libraries and the old video rental stores possible, for the work (in its physical and particular manifestation) is owned completely and may be dealt with in any manner the owner wishes. It is this concept that Clean-Flicks was utilizing when it resold (or rented) the originals along with the edited versions of the movies.

The last of the four, time limitation for copyright, has been the most thoroughly emasculated, rising from 14 years (renewable once) to the author’s life plus 70 years. For copyright owned by a corporation, the terms, for the most part, are now 120 years after creation or 95 after publication, whichever is shorter. It is this last number, ultimately, that determines the duration of almost all copyright, for it is corporations (publishers among them, but copyrights are owned by every major corporation) who most influence the laws. As Mitchell writes, “an exclusive focus on the author as the source of IP rights would be misleading. The vast majority of wealth created by authorship flows to publishers, not authors. Most authors are either employees who have no property rights in their work or independent contractors who sell their rights to their employers or publishers” (Mitchell, 16).

So, it is corporations who have become the greatest promoters of copyright extension, both in time and in coverage, for corporations see their copyrights in ownership terms only and, quite naturally, see loss of copyright as a reduction of corporate assets. Because of the corporations and their influence, Lawrence Lessig claimed in his Melville Nimmer Lecture in 2001that almost everyone today has come to see copyright in property metaphor terms (we even refer to intellectual property as, well, property), and few manage to see it in other fashions or in terms of something less than absolute ownership: “This view of the naturalness of intellectual property is not simply the construction of overly eager Hollywood lobbyists. . . . The reality is that it reflects the understanding of ordinary people, too. The ordinary person believes, as Disney’s Michael Eisner does, that Mickey Mouse should be Disney’s for time immemorial” (Lawrence Lessig, “Copyright’s First Amendment,” 48 UCLA Law Review  2001, 1070). Lessig goes on to point out the irony of the Disney Corporation being so protective and yet so damaging to the public domain, for Disney itself is one of the greatest users of stories in that public domain, including Victor Hugo’s hunchback, Pocahontas, and numerous others. Sometimes, Disney comes close to crossing the line into infringement. Disney’s Alladin (Ron Clements and John Musker, 1992), for example, owes a great deal to a much older movie, The Thief of Bagdad (Ludwig Berger and Michael Powell et al., 1940), itself a remake of a silent film.

Because of its value to corporations, copyright is now on the verge of becoming a permanent right (if it isn’t already, in practice if not in concept)—something that entities like Righthaven are trying to force into reality. The duration of copyright has been extended to the point where any further extension might as well make it perpetual, though that flies in the face of the U.S. Constitution. Yet, it will certainly be extended again and, just as certainly, this will happen by 2023, when Mickey Mouse will turn 95. Disney is not about to allow its signature product to enter into the public domain—and its power to influence lawmakers is countered, in this case, only by a few lonely Don Quixotes, for the public domain that copyright extension encroaches upon does not produce the concentrated revenue stream that would motivate concerted opposition.