WHEREFORE THOU ART #38
In the world of intellectual property law, the law of information, there are amazing and opposing forces running straight at one another, running just as fast and hard as they can. It's basically the big media companies (who own a lot of the information out there) against the rest of us. The media companies are focused and determined; the rest of us, well, for the most part we're clueless. I'd say "just watching", but most of us aren't even doing that.
That's not to blame us-this stuff can be conceptually difficult to grasp, and beyond the ken of most folks, who have more immediate concerns to occupy their thoughts than something that sounds so theoretical and vaunted as "who controls information." And, coincidentally or not, the very folks who are pushing the other side are the same ones who are trying to fill the space between our ears with rubbish about Brangelina, Britney, and the notion that we have a human being for a President.
A couple of weeks ago the arch-conservative Cato Institute issued a white paper on the future of creativity. The paper observed that the internet and digital media will shift a great deal of the "creative cycle" to individuals, to amateurs, who never were involved much in creativity before. Rather than being passive consumers of information, more and more regular people are creators and distributors of it. When you think about it, it's pretty obvious. Any kid with a computer can, and many do, make music without learning to play an instrument, unless you consider the computer a musical instrument (which it is). Writers are no longer at the mercy of a publishing company; anybody can start an online blog and write 'till their hands turn blue. Film makers, using cheap digital recorders and editing programs, can make a broadcast quality movie and post it on the web. And all of these creators can distribute their works over the web, to the entire world, at little or no cost.
And this "amateurs taking control of the creative end" has an interesting sidelight: these creators tend to use pieces of a lot of pre-existing works to fuel their creations. With digital media often being primarily driven by a "cut and paste" process, creators quite naturally are using whatever they can get their hands on to create new works. At the same time, computer technology has been used to hijack the role of music and movie distributors: if you look hard enough, you can find almost anything that's been published on the internet for free. Somebody's making it available, legally or not.
Take a look at any of the social networking sites-MySpace being the most significant (if you don't know about it, ask any 13 year old). People create their own web pages, and get to adorn the pages with photos, film clips, music, etc. There are millions of personal pages on MySpace and easily 90% of the stuff on them constitutes copyright infringement of some sort. And nobody's even trying to do anything about this-it is a tidal wave of published personal creative expression that no law can stop.
I've given several lectures over the past year at the School for the Museum of Fine Arts in Boston, and it seems like the majority of students there are dealing with some sort of "appropriation art," that is, using a pre-existing image or other kind of work as a building block for a new work. Appropriation art has to be one of the most prevalent genres of visual art today. And it's based largely on copyright infringement, or what Lawrence Lessig calls "re-mix culture."
In their study, the Cato writers connected the dots and lowered the boom: John Perry Barlow was right. Barlow, a one-time Grateful Dead lyricist who proclaimed himself an internet theorist before most of us had heard of the internet, wrote a blustery polemic, "The Economy of Ideas" for Wired magazine in 1994 that said, basically, the digital technologies were going to make the present regime of copyright law irrelevant, because, (quoting Stewart Brand) "information wants to be free," and the digital world gives information the opportunity to be free.
Barlow's taken a gazillion hits over this essay, derided and ridiculed largely by corporate / industry types, who typically guffawed at such a stupid idea as free information. What's mine is mine, what's yours is yours. That's the way it is, right? Any other sort of paradigm is, well, communist or something.
But it's not. Look at how things have turned out. Barlow's theorum is as intractable as the law of gravity.
Pushing in the other direction are an unholy alliance of corporate power, Congressional lapdogs, and a handful of individual creators, who are what the Cato study calls "the unintentional beneficiaries" of the corporate juggernaut that's attempting to control the flow of information.
Maybe they're tilting at windmills, but they're not giving up, to be sure. Big Media has repeatedly convinced Congress to do it's bidding, including the late-1990's extension of term of all copyrights, a multi-billion dollar gift to Big Media with negligible, if not negative, rewards for the rest of us, and the Digital Millenium Copyright Act, another late 90's bit of legislative skullduggery, which is sort of The Patriot Act of digital information, and every bit as onerous and anti-freedom.
These forces are back at Congress right now, talking about tighter owner controls of digital information for "owners", for greater ownership rights for trademark owners, and for more restrictions for what can be put on the internet.
The courts are flummoxed, much of the time. As often as not, I see boneheaded decisions come out of courts, where the judges clearly lack any appreciation or insight into the intellectual property laws they are supposed to uphold. Occasionally a question makes it to the Supreme Court, which of course is now packed with phony conservatives who support the accumulation of wealth and corporate power, and hypocritically tend to turn a blind eye to the Constitution's mandate that intellectual property protections need to be "limited" for the public good.
A couple of high-profile cases are worth watching right now. The New York Times, for some reason, ran a front page story a couple weeks ago about glass artist Dale Chihuly, who is suing a former employee for copying his style of glass-blowing. As I've written here before, an artist's style should not and cannot be protected-it being the development and morphing and borrowing of style that, after all, advances art! Just the fact that this case has gotten far enough to make the Times front page is scary.
The other is a long simmering dispute that is boiling over and was reported in The New Yorker recently. Stephen Joyce, grandson of James Joyce, has for years been raging a war of terror on Joycean scholars who have the temerity to write critical analyses or realistic biographical material about Joyce and his family. Essentially, Stephen Joyce has been abusing the vagaries of copyright law to stop anyone from portraying James Joyce, his works, or his family in what Stephen Joyce deems to be an inappropriate light. Shamefully, the New Yorker article failed to recognize that Joyce has almost no legal basis for his anti-intellectual, anti-free expression campaign, and the only reason he's been able to get away with it thus far is because he has enough money to throw at perennial cash-strapped scholars to scare all but the most intrepid away.
Big Media, Chihuly, and Joyce are all going to lose, eventually, because John Perry Barlow was right. The only issue is how long it's going to take, how many people will be ruined in the process, and the toll the battles will inflict on the intellectual (and technological and financial) health of the world.
© 2002 Paul C. Rapp
This article originally appeared in The Artful Mind, and is intended to provide the reader with an awareness of copyright law and not legal advice.