A Contrarian’s View of Copyright: Much Ado About Nothing
I’m going to start backwards. I’m going to give you an example of something completely contrary to the traditional notions of copyright law. Then I’ll tell you why I think it works and perhaps dispel a few myths about intellectual property protection. Here goes.
Among the first content creators with access to the Internet – even before the ‘web’ – were software programmers. Creators of programming code! You remember words like source code and object code don’t you? In a perfect copyright world, software programmers would create programs and would be paid handsomely for their work. These innovative interpreters of man-machine language would all have houses in Atherton or Bridgehampton and be driving around in Bentleys. But a funny thing happened on the way to the Web. A programmer named Richard Stallman got this really bright idea. Why don’t we permit copying? Why don’t we encourage file and information sharing and let the software code run free. Just make sure it gets attributed to the right people who are the authors. No limits, no restrictions, no prohibitions on derivative works or use. Heck, why not let everyone copy, modify, improve, enhance, build – yes, even use and distribute freely. In short, I would like you to recognize my work, appreciate the effort and creativity I’ve put into it and then simply let you use it or use it as a foundation to make it better – to continue to be even more innovative and creative.
Now you, along with so many at the time, would predict the speedy demise of such an idiotic scheme. Everything would become complex and disorganized. No one would make any money. People would have no incentive to invent or be creative. Nice try folks but a really, really dumb idea, right?
Wrong! Today, open source software represents a large, well regarded, high quality body of programs freely available to all. Open source software is reliable and functional, used by major corporations, financial institutions, and pharmaceutical companies and yes, even the government. Everyone it seems is using freely available, freely modifiable open source programming code – maybe even you! How many web sites run Apache, which is freely available? All this in stark contrast, indeed, direct opposition to the very argument that is used to justify copyright protection. This is not esoteric. It exists. Today. The innovative production of creative, constantly evolving, dynamically vibrant intellectual property, supported by a community of brilliant programmers, engineers and average citizens. Each contributor and creator is identified, but receives no direct compensation for their efforts, they do not seek to prevent display or transmission and they look for no royalties or license fees. In fact, this community of copywrongers affirmatively seek to prevent anyone else from imposing any other restrictions on the use or copying of their work. These content creators have ceded all rights to their creative efforts, other than the right to be known and recognized. This should not be happening. But it is. . . .
Today, much to the consternation of some, musicians are releasing songs online without download restrictions; videos are being made freely available for streaming, linking, downloading, even for morphing. Consider the sheer volume of material increasingly available free across the Internet and resident on the Web. Books, poems, music, news articles, images, reference works, audio-visual works – is any of this creative content fundamentally better or worse or even different from software programming code in its intellectual essence? The form and genre may differ, but the principle is the same and in our electronic and digital world, copying doesn’t deprive anyone of the original. In fact, allowing others to freely display, use, perform, copy and even improve upon one’s work, appears to gain admirers and audience that might take otherwise years to build, if at all, through what the ‘industry’ deems traditional means. As my story will take you back to the 16th Century as you read further, you may well wonder if we are not going straight back to the future. Put differently, wouldn’t you think it odd for the creators of original creative content to abandon the rights granted under the very statute ostensibly created to protect them! Keep your eyes on the word “ostensibly” and your hands on your wallets.
On the Web, content succeeds because of merit. It’s funny, creative, awesome, inspiring or some other adjective usually associated with talent or creativity or originality. My work can never be ‘out of print’ because I’m not dependent upon the printing press for its distribution. Your song can always see the light of day and be heard, because you can freely distribute and perform it and allow others to do so with the push of a button (the proverbial click of a mouse). Viral, buzz, word of mouth are all terms associated with the gate-less opportunities available for creative effort – good and bad. Am I worried about you stealing my writing? Not really. The same widely available, speed of light dissemination my writing enjoys, also makes someone stealing it and calling it their own, highly unlikely. After all, now everyone can find and identify the original, point shamefully at the counterfeiters and pin a Scarlet Letter on the plagiarists, even before the electrons grow cold.
Think about it, will you copy my article and put your name to it when it is so easy to uncover the original and ultimately the truth? Is it different from poetry or music or art or graphics or audio-visual material? Just as the blogosphere is quick to find and uncover errors in news reporting, won’t the blogosphere also quickly find and brand ‘copycats?’ The quote “If you copy from one author, it’s plagiarism. If you copy from two, it’s research.” has been attributed to playwright, raconteur and entrepreneur Wilson Mizner, although it is often part of the comedian, Steven Wright’s act! It is precisely this wonderfully massive free flow of creative work and ideas that stimulates more creativity. It encourages others to discover and articulate new and more innovative and better ideas – content, inventions – - – progress. So where is copyright protection in all of this?
Prior to the 16th Century, when the movable type printing press was invented by Gutenberg, there were no copyright laws. The Church and Government controlled the distribution of information and content. Books and writings were the domain of the privileged and the learned – a small and select group. A musician, poet, artist or author had to create or perform or distribute their creative work piece by piece, displaying, performing or writing it out. A slow and labor intensive process. The ability to widely disseminate one’s creative work was in the hands of those in power. It would be hard to imagine that the arrival of printing presses was met with disdain by authors eager for ways to get their work out far and wide. But it certainly must have been met with concern by those in power. Armed with this new technology, anyone with access to the machine could effortlessly produce volumes of books and articles, quickly, easily and relatively inexpensively.
So the British government did what any self-respecting power would do – they created the London Company of Stationers – a profit making guild afforded exclusive printing rights by the Crown. In return for this monopolistic privilege, the Stationers’ duties for the ‘public good,’ consisted primarily of censoring material deemed unworthy of publication. Indeed, the government gave them rights to seize printing presses that were operating unlawfully and even the right to burn books which had not been registered and passed muster with the censors! The guild had a monopoly, granted by the government, over the printing and distribution of printed materials. These were the origins of our protection of the creative effort of authors, musicians and artists. No author or musician had a right to prevent others from copying or performing her or his work. The guild – not the individuals – was given the right to determine what was published and what, if any, copying and distribution was permitted.
Without boring you with too much history, towards the late 1600s the British government began to believe it was time to let the monopoly expire. Great news for authors and independent distributors, but not for the ‘industry.’ So the ‘industry’ mounted a lobbying campaign. Knowing that individual authors, poets, musicians and artists would never have the means to buy or operate the equipment, obtain the necessary transportation or distribution channels, source the manufacturing and materials capabilities needed to reproduce and distribute their work, the Stationers tugged at the heartstrings of individual rights, lobbying the British Parliament to let the individual content creators hold ownership over their works and have a new set of rights. . . . hold in, here it comes . . . but that those ownership and proprietary rights to control and exploit those creative works should be freely assignable and transferable to others by contract – just like a tangible piece of property.
So the Statute of Anne, by all accounts the foundation of modern day copyright law, was enacted by Parliament in 1709. Power to the people? Hardly. Authors never before had such rights and weren’t clamoring for them. The London Company of Stationers was simply protecting its own industry. It is questionable whether then or now, creators of content view it as inherently evil for others to duplicate and spread their work far and wide without permission or compensation. Give me attribution and please, link here, copy my article and tell everyone to read it. Now. Thank you
Even though copying prior to the introduction of printing presses was difficult, to my knowledge not a single statute making it criminal or illegal to copy the work of another found its way into law or regulation until that time – not music, not art, not written words, nothing – even though musical composition and writing traces it’s origins back to cuneiform writing, wandering minstrels and artwork on cave walls. Only when equipment enabling copying did laws appear – and authors didn’t own the equipment. . publishers and distributors did. To be published as an author or distributed as a recording artist, unless you had enough money and power to do what you wished, you needed to have a publishing house or record label behind you – the reality for the overwhelming majority of authors, artists and content creators. Copyright laws created rights in creative content, but the primary beneficiary of those rights were not the individuals who had no power to print books or press records. . . the beneficiaries were the publishing houses, record companies, motion picture studios who contractually obtained rights from authors, artists, performers and creators in return for the promise of distribution and wider recognition the content creators had no access or ability to effect.
The giant digital copying machine we call the Internet or the Web, is now a distribution platform available to everyone . . . real power to the people. It is absurd to believe or assert that content or creative authorship, artistry or performance has no value. . on the contrary, content is and will likely remain ‘king.’ But when it comes to copyright protection, ask yourself who or what we are really protecting and to what purpose? Are we stimulating and protecting the creative efforts of individuals or the profits of industry giants whose origins emanate from censorship and a monopolistic duplication and distribution system that is no longer relevant or necessary? When the means to produce and distribute content was expensive and difficult to obtain, it was logical – perhaps inevitable – for ‘industry’ to only make investments when it’s rights were secured. Today, does it still make sense?
Does the struggling artist, peddling her wares on a street corner; the musician who taught himself to play and record tracks in the garage; the poet, penning rhymes in the coffee shop and holding readings in Greenwich Village bookstores; will they really run to court, seeking to stop the world from seeing or hearing their creative efforts? How many talented content creators have retained these important rights in order to really benefit from them? How many have had to trade them to those who control the distribution channels, for a chance at fame and fortune? Curiously, often the first thing artists and authors do once they do become wealthy and powerful and independent (other than start a perfume or clothing line) is start their own record label, publishing company or gallery! Is that what the copyright laws were designed to protect or stimulate? The reality is that for the vast majority of creative people, starvation and struggle is the norm, not the exception. Yet they relentlessly create.
Today, with the means to make, distribute, display and perform creative content directly in the hands of the creators (and at little or no incremental cost) should we still support a legal framework that protects an industry built around investments in equipment and distribution channels that arose in a paper-based and tangible asset world when content creators had no other choice? Picture a world without copyright laws. Who would suffer? Who would be deprived of recognition? Who would stop creating because there were no legal or regulatory incentives or protections? If you aren’t sure, this has served it’s purpose. If you are sure, you are either a content creator or an industry executive. Think about it.
Joseph I. Rosenbaum, We Expert
Joseph I. (“Joe”) Rosenbaum is a partner in the New York office of Reed Smith, global chair of its Advertising Technology & Media law group and the editor, publisher and often author of posts on his blog Legal Bytes, which he has authored and published, first in hard copy and then in blog form, since 1996
About the author
Global advertising, marketing, gaming, media & entertainment, privacy and e-commerce lawyer in a digital world,and more. Party of We Expert and LegalBytes publisher, editor & blogger.