copyright law

A User's Guide to the IP Wars

In the 1990s, a variety of industries dependent on copyright, trademark and patent law decided that the Internet and new digital technologies were getting way too dangerous. Upstart competitors with innovative business models were starting to invade well-established markets.  Worse, ordinary people were starting to bypass the market system and challenge the supremacy of copyright and patent law (and to a lesser extent, trademark law).  People began to create their own freely shareable alternatives using free software, co-production of content and virtually free distribution.

And so it was that the corporate giants of information and culture staked out the high ground of “property rights.”  It would be the citadel from which they would defend their entrenched business models and fight the “dangers” of digital networks.  The result has been the IP Wars, a sprawling set of political, economic and cultural conflicts that continue to rage today. 

It is a far-ranging conflagration that affects dozens of creative and cultural enterprises -- film production and distribution, musical performance and recording, book publishing, photography and video production, pharmaceutical development, scientific research, scholarly publishing and databases, among many other arenas.

There has also been a strenuous backlash to IP industries.  People with HIV/AIDS have risen up to fight the broad patent claims of the pharmaceutical industry, which has made life-saving drugs unaffordable to millions of people in need.  Hackers have organized to resist the proprietary lock-down of software code, and insisted upon basic human freedom to copy and share their code.  Subsistence farmers have resisted patent laws that promote genetically modified crops and threaten their seed-sharing practices.

Those antic law professors who gave us Bound by Law – a glorious superhero-comic treatment of the fair use doctrine in filmmaking -- are at it again!  Forget DC Comics.  I want my IP Comics!  Keith Aoki, James Boyle and Jennifer Jenkins are apparently out to build a franchise by translating the arcane monstrosities of copyright law into clever, hilarious and downright educational comic books. 

Their latest offering, due out in the spring or summer of 2011, is Theft!  A History of Music -- Musical Borrowing from Plato to Hip-Hop. Aoki, a professor of law at the UC-Davis School of Law, is the graphic artist for the comic book.  Boyle and Jenkins  -- both professors at Duke Law School – researched, wrote and designed it.  Boyle is the former Chairman of Creative Commons and co-founder of its spinoff project, Science Commons.  Jenkins heads the Center for the Study of the Public Domain.

Liberate the Music!

Ludwig von Beethoven died 183 years ago. So why is his music still locked behind copyrights and not available for free to everyone? Because even if the music itself is in the public domain, the recordings of his music, or perhaps the sheet music (with special arrangements or notation) can be copyrighted by the orchestras that perform the music or the composers who notate it.

And so if you buy a CD of Beethoven's Ninth Symphony, you need to pay your $15 or so to the record label, distributor and retailer, the orchestra and all the lawyers and marketers and other irregulars with a finger in the pie. And then, in the end, you can only listen to the music. You can't legally download it, share it with friends over the Internet, do a remix of it, play it in a restaurant as background music, or use it as a soundtrack to a film.

The Privatization of Yoga

It is a sign of the predatory nature of markets today that a tradition that goes back 4,500 years now needs to affirmatively defend itself as a common legacy of humankind. Yes, the latest endangered resource is -- yoga.

Yoga was developed in India as a physical and spiritual practice for everyone. The breathing known as pranayama is perhaps the most elemental aspect of human existence. But wouldn't you know it -- all sorts of scheming entrepreneurs now want to convert yoga into "intellectual property."

The pioneer in this endeavor was Bikram Choudhury, born in Calcutta, who came to the U.S. and began to franchise his trademarked yoga studios with his own distinctive adaptations of the ancient practice. Bikram's claimed a copyright in his “original” sequence of 26 postures that his clients perform in 105-degree rooms. Anyone who “stole” his copyrighted yoga postures for commercial purposes would then be liable for damages, he claimed.

The Founders as Mashup Mavens

For pragmatic activists fighting the good fight against expansive copyright laws, the focus is usually on the here-and-now — how the law prevents us from sharing our works online, how it criminalizes all sorts of everyday activities, how it sanctions monopolies that charge ridiculous prices and stifle competition.

But imagine for a moment if we could learn what the nation's Founders actually thought about the cultural commons as they went about crafting copyright and patent law. Imagine our surprise at learning that Benjamin Franklin was not just an iconic entrepreneur, but in fact America's "founding pirate" deeply committed to collaborative invention and the open sharing of knowledge. Consider the pleasure in discovering that Shakespeare and Shelley, Emerson and Thoreau, and Madison and Jefferson, are all grand figures in a little-known pageant of political culture. Each makes the case, from his writings or his life story, that creativity and culture properly belongs to the commons.

The May 2010 issue of Cornell Law Review is a treasure trove of essays about the cultural commons. Rarely has the subject received such focused and sustained academic exploration in a major law journal.

The issue just came out so I haven’t had a chance to absorb the articles, but they certainly look inviting. The lead article, Constructing Commons in the Cultural Environment is by Michael J. Madison, Brett M. Frischmann & Katherine J. Strandburg. It is followed by a series of in-depth responses, all of which can be downloaded in pdf form.

The essays include:

Mapping Social Technologies in the Cultural Commons by Thrainn Eggertsson.

Discipline and Nourish: Construction Commons, by Wendy J. Gordon.

Academia as a Commons

David Bollier has been the Croxton Lecturer at Amherst College for the past semester, teaching a course, “The Rise of the Commons.” Below are remarks that he delivered at the Robert Frost Library on April 26, 2010.

I realize that any mention of digital technologies and copyright law can induce a certain mental stupor among many people. The topic is rife with many complicated legal and technical issues. But I believe that we commoners have too much at stake to leave copyright law to the lawyers and the Internet to the techies.

The very mission and identity of academia is implicated in the future of digital technologies, the Internet and copyright law. At stake is the ability of colleges and universities to act as inter-generational stewards of knowledge; to assure that their own scholarly output is freely accessible and usable; to curate knowledge in better ways and to disseminate it as broadly as possible; and to foster innovative research and learning.

Property Outlaws

The pantheon of property law generally honors the great virtues of private ownership — while making the case that the public benefits from such arrangements.

Unfortunately, the benefits to the public are often more nominal than real. Drug makers frequently use their patents to extract exorbitant prices for life-saving drug compounds. Tech companies claim exclusive rights to common “business methods” and mathematical algorithms embedded in software. The record and film industries have expanded their copyright monopolies in numerous ways at the expense of the public domain and fair use rights.

As practiced, in short, property law tends to expand private prerogatives and suppress public benefits. Its priorities — to turn ownership into money — often trump those of democracy, community, free expression and life outside of the marketplace.

The Public Domain Manifesto

The public domain — long a stepchild in the fierce politics of copyright law — is finally starting to come into its own. A diverse array of individuals and organizations associated with COMMUNIA, the European “thematic network” on the digital public domain, have issued a major manifesto explaining the importance of the public domain to democratic culture.

The manifesto has already garnered endorsements from thousands of people and dozens of organizations. It has also been translated into seventeen different languages, including French, Czech, Chinese Mandarin, Portuguese, Italian, Hebrew, Serbo-Croation and Turkish. This powerful show of support is helping to mobilize the many constituencies that depend upon the public domain. It also puts the corporate armies of copyright maximalists on notice that their attempts to enclose the public domain will be actively resisted.

Artists vs. Copyright Law

We’ve all seen the F.B.I. notices at the beginning of DVDs and the dire warnings by the record labels: their works are “private property” and any unauthorized uses amount to “theft” or “piracy” punishable by law. It’s a big lie. There is a whole class of “unauthorized uses” that are entirely legal, not to mention necessary for education, democracy and ordinary social life. It’s called “fair use,” which is a legal doctrine of copyright law that allows anyone to excerpt and re-use film, music, books and other copyrighted works without getting advance authorization or paying any money.

After constant harangues about the sanctity of their “private property” and the scourge of “piracy,” it was refreshing to experience World Fair Use Day in Washington, D.C. on January 12. The event — hosted by Public Knowledge, the defender of the public’s stake in the Internet and copyrighted works — brought together some two dozen artists, lawyers, scholars, journalists and others who care about our untrammeled right to use and re-use our own culture.

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