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The first thing I do when I start a new writing project is to search the works of other writers already published on the subject. Every good writer does the same thing. In fact, it's the way all art and culture evolves and grows -- by building on the creativity of those who went before. Each of us pushes the artistic/cultural boundary out, holding it in place until the next artist or writer comes along to push it into entirely new territory.
In fact, the law insists on it, insists that creative works be just that -- essentially new. Simply ripping off the work product of another artist is illegal. The invention of movable type -- and with it the ability to mass-produce copies of printed works -- necessitated the first copyright law in 1709. The reasoning was, and remains, sound: if the original work of artists cannot be protected, at least long enough for them to make a living from it, then few people would take the time to produce difficult and important works of literature and art.
As time and technologies progressed, copyright laws progressively tightened in response. Each new technological leap presented those with vested interests in intellectual properties with a fresh challenge to what they saw as their rights. By the dawn of the 20th century it became less about the rights of starving artists and much more about the rights of large publishing concerns. In the US, copyright periods were steadily lengthened from their original 14 years. Each year of extended protection increased the value of publishers' inventories since no one else could reproduce those works while they were protected. As the copyright noose tightens, writers and artists worry that almost anything they produce could be challenged by someone who thinks they see a piece of work they own reflected in the new work -- which of course is unavoidable.
Jesse Walker, an associate editor for Reason Magazine, wrote a scathing criticism of the trend toward expanded copyright laws. Jesse sat down with us for an interview in April.
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Real Audio Quick Clips Jesse Walker on...
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Walker on Napster and the music industry:
In the case of MP3 and Napster, what you have is essentially an arms race, and it's moving beyond the law. Even if Napster gets shut down, there is this new program, Gnutella. It's freeware. It's a distributed network the same way the Internet is, so there isn't a central server that can be shut down and there isn't a company that you can sue. So it seems as though the main force that's working against large companies using the courts and the law is simply the ability of people to come up with clever new technologies that allow them to violate copyrights anyway. It's almost as if we are moving into this lawless zone where it's like, who can afford what lawsuits versus what clever hacker can come up with a neat program. It's very fun to watch, but it's not the way these issues have traditionally been solved in the past.
Walker on the film industry:
A related issue is some of the more obscure films out there for which the Congress just extended copyright protection by 20 years. Twenty years from now, a lot of these will deteriorate so they can't be seen. With these out-of-print works, especially, which nobody who owns the copyright expects to make a profit from, clearly there's something wrong with the copyright rules if it can't be easy for someone else to come along and legally release them.
Walker on shortening copyrights:
I would be delighted to have the original constitutional system of 14 years with an option to renew for 14 more years, and having in the case of something done by the author as opposed to by a company and at their death, not having it extend past their lifetime. But even more important than that, I think that we need to be expanding the area that's protected by fair use instead of constricting it.
Walker on the right industry response:
I think sometimes the only way you can get to a position of strength is ... well, in the case of Napster, if the recording industry says, "You know, it's obvious we're not going to be able to fight this. We should try to figure out a way to release music on this format that's reasonably priced and make a profit off of it that way." One reason why you have so much piracy in that realm is because the recording industry was so slow to embrace MP3, and now it's coming around and biting them.
Walker on the anti-copyright arms race as a prod for change:
So again I'm just having to put my faith in this arms race, which is a horrible thing to say, in hopes that when it becomes harder and harder to enforce intellectual property rules, people will just make the natural triage and say, "We're going to go after the important cases and leave aside these parodies and fan films and things which aren't interfering, which if anything are getting people more interested in our product."
Continue to next page for full transcript.
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Pizzo: Thanks for joining us today, Mr. Walker. I really enjoyed your piece, Jesse, in Reason magazine. As a writer myself, I've crossed these issues several times and experienced the same sort of conflicts that I'm sure most artists and authors come up against, where you say, "Look, I definitely want my work protected and I want to be paid for it, but I also want to have access to that great wealth of culture and art out there to draw from as I'm creating my work." Your piece basically says that those avenues are increasingly being shut off by what you call "the culture industry." Do you want to expound on that a little?
Walker: The use of copyright law and trademark law in recent years has as you said really shut off a lot of the access to the culture that other people have already created. The most famous example -- famous because it's been around for even before people were using the Internet -- is sampling (the practice when somebody who's making one record samples maybe a couple of words or sometimes a lot more than that from another record). At first, people weren't paying for the use of the old material at all, and people complained about that, so people started making payments, and all this was fine, but sometimes artists just say, "No, I won't even give you the right to use my work," and because of the way copyright law is structured, that's possible.
Well, now you can't just sample music. A lot of the material that would have been traditionally protected by fair use is not protected any more, or isn't being treated the same way. Fair use is the doctrine which says, for example, that if I am reviewing a book I can quote a couple of paragraphs from the book and comment on it. It makes perfect sense. It seems like a straight-up free speech issue, but we don't have a tradition of fair-use protection for, for example, using clips from fair-use protection. For example, using clips from a film on a CD-ROM. It could just be a few seconds, but you want to make a point. Say you're a film scholar and you want to make a point about the way a certain shot was. Well, you need to get the people's permission. You probably need to pay them for it, which you don't have to do under fair use. And they can deny you the right to use it, which they often do.
This really becomes a problem because it's not just scholars who are doing this, but now we have people who are using the Internet as a means of distributing their art. You know, they have fan filmmakers out there who like Star Wars and are making up their own adventures, you know, using Star Wars characters, but it's original works, and sure they're using these characters George Lucas created, but George Lucas of course ripped off bits of his plot from (other) movies and old myths and so on.
Pizzo: You point out in your piece that it's not just nickel and diming the consumer on these issues, but also it crosses the line into areas of censorship as well. I mean, you point out for example Disney suppressing or not releasing "Song of the South," a movie they did in 1946 that's full of Uncle Remus stories and has been criticized for being racist. This is, you know, like "Birth of a Nation"; this piece of artistic work is a part of our historical-cultural history, and yet even though it's out of circulation and you can't see it in the theater, Disney won't release the copyrights on it, and those copyrights have now been extended to 95 years, so nobody's going to see this unless Disney wants them to.
Walker: We have works going back to the 1920s which are protected by copyright, and sometimes it's not entirely clear who owns the copyright to, say, an old B movie or an old R&B record, but a lot of people won't take the risk of releasing them -- or re-releasing them, rather -- even if they deserve a new audience, because they're not sure who controls the copyright.
A related issue is some of the more obscure films out there which the Congress just extended copyright protection by 20 years. Twenty years from now a lot of these will deteriorate and can't be seen. With these out-of-print works, especially, which nobody expects, no one [who] owns the copyright expects to make a profit from them, clearly there's something wrong with the copyright rules if it can't be easy for someone else to come along and legally release them.
In the case of Disney, this is something slightly different because Disney, you know, created his work. I mean of course the people who actually created the work are dead, and the original stories were created by people who weren't involved with Disney at all, you know, a century before the movie came out, but I mean it's Disney's intellectual property and it's an important question that people who believe in the ultimate sanctity of intellectual property should confront, you know. Does this mean that they think that people should not be able to get a return from their work but keep their work off the market?
I don't think they should, and in the case of Disney it's so clearly a response to -- I don't know if the movie's racist. I saw it when I was a kid, and I wasn't as attuned to those issues then, but you know, even if it is, I think it's an important part of our history that people should be able to take a look at, and you probably can in an academic context. I mean if you're at UCLA Film School, you can get a copy of "Song of the South" and watch it. But if you're just someone who's an amateur film buff or maybe you're writing on some other topic -- you know, race relations in the 1940s, and you want to take a look at this and you're not next to a campus with a big film school with borrowing privileges, the only way you're going to be able to get it is by getting a bootleg copy.
Pizzo: As we see the debate that's also going on right now with the decoding of the human gene, where basically people are saying, "Well, how much of the human being, down to their finest components, can people be allowed to own?"
We're seeing the same sort of thing here, in both the copyright and trademarks, and you point out another good example of how the law is miswritten in such a way that the courts now are handing down decisions like the one with the Rock & Roll Hall of Fame in Cleveland where a photographer took a picture of it and did a poster of it, and the Hall of Fame came back and said, "No, that's our trademark, that's our building."
Walker: The frightening thing about that is that it wasn't just thrown out of court to begin with. They were essentially claiming that the building's design itself was a protected mark, and that means they're claiming a property right in the way part of the Cleveland skyline looks, which is just ridiculous. In a lot of these trademark cases, you know, they do get thrown out of court right away. It's just that the people the suits are brought against can't afford to hire a lawyer, and they can't afford to risk losing it, and they fold without bringing it to court. And this is another really frightening issue, the way in which large companies [who] can afford a big staff of lawyers are moving beyond what the law protects, especially in trademark law, because they simply have a lot of money to throw around. And the court system is expensive, and they're picking on people who are just like the 14-year-old with a Buffy the Vampire Slayer web site. They don't have the resources to fight that, and they don't really have the knowledge to know whether or not they have a good case or not, unless their dad's a lawyer.
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Pizzo: The courts are now ruling in favor of companies that come before them with trademark issues such as "artistic style," they call it, decor of their restaurants. If this were around a hundred years ago or so, could we have seen artists who could have claimed trademark rights to the artistic style of impressionism or cubism?
Walker: I don't know if they could have seen that, just because it's hard to point to one person inventing that and it's not ... Trademark is based on customer confusion. It's actually protecting people against fraud or against inadvertent customer confusion. In the case of something like impressionism, this goes back to sampling. Imagine if someone could have copyrighted a blues riff a hundred years ago. Could rock music, country music, jazz music have evolved ? They are based on these, in a large part based on these same blues riffs and progressions. What if they had had to track down the people who came up "duh da duh da," or what have you?
Now, because we're using recording technology instead of just mimicking what we've heard on an instrument, the law changes, and I argue that the law should essentially be the same. Obviously the issues are slightly different and I'm not saying it's identical, but clearly we've gone far on ... The seesaw's tipping way over the wrong way, let's say.
Pizzo: We have the recording industry now right in the middle of this MP3 controversy fighting a program, "Napster," that allows people to share entire albums over the Internet. Where does this all go?
Walker: In the case of MP3 and Napster what you have is essentially an arms race, and it's moving beyond the law, because even if Napster gets shut down, there is this new program, Gnutella. It's freeware. It's a distributed network the same way the Internet is, so there isn't a central server that can be shut down and there isn't a company that you can sue. And so it seems as though the main force that's working against large companies using the courts and the law is simply the ability of people to come up with clever new technologies that allow them to violate copyrights anyway. So it's almost as if we are moving into this lawless zone where it's either -- it's like who can afford what lawsuits versus what clever hacker can come up with a neat program. And it's very fun to watch, but it's not the way these issues have traditionally been solved in the past.
Pizzo: Well, where would you begin to remedy all this? Would you begin with shortening the copyright period back to its original 14 years?
Walker: Oh sure, I would be delighted to have the original constitutional system of fourteen years with an option to renew for 14 more years, and having in the case of something done by the author as opposed to by a company and at their death not having it extend past their lifetime. But even more important than that, I think that we need to be expanding the area that's protected by fair use instead of constricting it. There is one case I mentioned in this article, there's a parody of the O. J. Simpson case called "The Cat Not in the Hat," and the guy signed it "Dr. Juice," and it was done in the style of "The Cat in the Hat." The parody defense doesn't protect this because it wasn't parodying Dr. Seuss, it was parodying O. J. Simpson. They were just using Dr. Seuss. If you read the court's decision, it's like sort of they're doing art criticism. I mean, who's being parodied and what's just a tool of the parody, and this is just ridiculous. I mean parody, fair use, sampling -- any of these should be protected.
Pizzo: And despite the court's decision in their favor, I don't think there was anybody who has an email address who didn't get that in their email box.
Walker: Oh sure. In that particular case, as I mentioned in the article, a number of things that have been legally suppressed are still out there on the Internet. If someone like e-ported them on email or set up a mirror site -- but at the same time, I mean, it's disturbing when you can have a book like that suppressed. I mean, during the O. J. Simpson case, there wasn't a thing having to do with O. J. Simpson that wasn't being forwarded all over the world. And the same thing happened with the Lewinsky case. There are other issues which might not be as globally -- people that might not be as fixated on that -- you'll have it, you know, saved in that way.
Pizzo: Okay, now the bottom line of course really is the bottom line. These corporate giants who increasingly have interest in these intellectual properties are shoveling money into Washington hard and fast. What chance does common sense have to prevail?
Walker: I'm really putting my faith in two things. One is that some of the laws that passed, like the Millennium Copyright Act that came out a couple years ago, are so restrictive in some of its provisions that they are going to stand the way of even big companies that pushed them through. It will stand in the way of their profits, and that'll create a constituency for revising it. But even beyond that, you know, I'm having to put my faith in this arms race. When you get to the point where people are still emailing around "The Cat's Not in the Hat" and there are people trading these often-pirated MP3s on Napster and Gnutella. I think sometimes the only way you can get to a position of strength is when -- well, in the case of Napster, is if the recording industry says, you know, "It's obvious we're not going to be able to fight this. We should try to figure out a way to release music on this format that's reasonably priced and make a profit off of it that way." One reason why you have so much piracy in that realm is because the recording industry was so slow to embrace MP3, and now it's coming around and biting them.
So again I'm just having to put my faith in this arms race, which is a horrible thing to say, in hopes that when it becomes harder and harder to enforce intellectual property rules, you know, people will just make the natural triage and say, you know, "We're going to go after the important cases and leave aside, you know, these parodies and fan films and things which aren't interfering, which if anything are getting people more interested in our product."
Pizzo: We'll call it the Jesse Walker Cyber Pitchfork Brigade. How's that?
Walker: [laughs] Sure, whatever.
Pizzo: Well, listen, Jesse, thanks a million for chatting with us today. It's an issue that isn't going to go away, and we'll revisit it at some point down the road and see how it's going. Thanks for joining us.
Walker: Thank you.
Stephen Pizzo is an award-winning non-fiction author, and newsman for the O'Reilly Network.
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