The Philosopher's Stone

Two Book Overviews - Copyright #1:

Recently, two books about intellectual property came to my attention. A while ago was Stanford law professor Lawrence Lessig's book Remix (first learned about when Lessig appeared on The Colbert Report in January) and later (learned about on NPR) was novelist Mark Helprin's Digital Barbarians.

First, some background on the issue of copyright. Copyright is the legal protection, afforded by the government (and mentioned in the Constitution, though not by the name "copyright") that protects the intellectual property as the property of the creator for a set period of years. Until about 1909 (according to Lessig's book), the law didn't protect against making "copies" of work, but rather only protected against someone else stealing an author's work and claiming it as their own. In 1909, the law was changed to prevent "copying" intellectual property owned by another. Until 1976, you had to register a work with the government for it to be covered by copyright - but since then, the mere act of creating the work has instantly initiated copyright on the work, even if it never gets officially registered with the government. And, finally, in recent years the terms have been expanded - copyright currently extends 75 years after the creator's death for individuals (thus, in principle, earning their heirs royalties), and 95 years after the creator's death if the work is owned by a corporation (such as, say, Disney owns Mickey Mouse, and earning the corporations profits).

Remix: Making Art and Commerce Thrive in the Hybrid Economy focuses on the modern issue of how copyright law criminalizes many actions commonly allowed with our modern technology: peer-2-peer file sharing, the ease of editing video & audio together, and so on. Any time a copy of a creative work is made digitally, copyright law is triggered. This is all the time for digital media, because everytime you view something on the computer it is copied between memory locations. This web page, for example, has been copied from the Blogger web server to the memory on your computer, to be interpreted into text by your web browser. If you listen to music on your computer, the MP3 file is copied from the memory location where it's stored into the active memory of Windows Media Player or iTunes. Copies happen all the time digitally, even if you aren't intending to make a distinct copy ... and copyright law doesn't inherently distinguish them.

The first example in the book is a woman who was forced to remove a video of her 18 month-old daughter from YouTube because a Prince song was playing in the background while she made the video, and she didn't have permission from Prince (or the record label) to distribute the song. Other examples include people making "mash-up" songs, which are made from fragments of other songs (owned by other artists) to create something new, or similar "mash-up" videos (which may use copyrighted music as a soundtrack). Our technology allows us to not only "consume" culture, but to take it and rework it, just as (and this is Lessig's example) people used to (prior to phonographs) not just listen to music, but rather to be active participants in music - what he calls Read/Write (RW) culture, instead of Read/Only (RO) culture, taking computer terminology and applying it to culture as a whole.

Lessig's point is that we should modify our existing laws to both support the original creators of music, film, written works, and so on, but also to decriminalize the "remixing" that takes place with our modern technology, and the RW culture that it allows. We should encourage an economy which merges "commercial economy" and the "sharing economy" into a single "hybrid economy," which uses aspects of both. (Think of Amazon.com, where a commercial site benefits greatly from the fact that many people, myself included, share what they think of books to add value to the experience for other users and in turn benefit from that shared experience.)

Digital Barbarism: A Writer's Manifesto, on the other hand, is written with the specific goal of opposing the artistic culture that Lessig is emphasizing as important. To him, the RW culture is not something to be glorified, but instead a rabble of thieves, who seek to steal intellectual property and remove the role of the artist from society. While I'm supportive of the main thrust of Helprin's argument, he utterly fails to make a convincing argument, in part because he makes blanket statements that are nowhere near the truth. To someone who isn't aware of the actual copyright arguments, this book reads like a gross caricature.

Helprin's book came out of a New York Times op-ed piece where he suggested that the duration of copyright be extended for individual authors (it was extended as recently as 1998). And he got absolutely slammed for it, apparently, becoming the center of a massive firestorm of hate mail (some of which is quoted in his book, with the false impression that the hate mail is representative of the entire community of people who want to weaken copyright law). The book focuses on the idea that all of these people are, ultimately, thieves, pirates, and socialists.

Lessig's blog provides a comprehensive response to and critique of Helprin's book, covering most of the major factual flaws in detail, but I'll be focusing in subsequent articles on a couple of the issues in both books that were most evident to me as I was reading the two books:

1. The Nature of Property - Helprin equates intellectual property to physical property, but doesn't seem to satisfactorily address the idea that there are fundamental differences between the two. Also, back to the original Helprin claim - is there any useful purpose in a content creator caring what people use work for more than 75 years after their death? How does this sort of protection relate to other forms of property?
2. Does Size Matter? - Lessig's examples tend to be very popular forms of intellectual property - Harry Potter, Mickey Mouse, Prince's music, Lost, and so on - which could allow some free use of their intellectual property and still make a sizable profit. What about the "little guy" artist for whom there may legitimately be a cost in this new hybrid economy? Can writers, and other artists, make money in the hybrid economy, or will the professional artist (as Helprin suggests) become a thing of the past?

One final note: Lessig offers several of his earlier books for free through a Creative Commons license. If you're interested in learning more on these topics, I would suggest them as a good place to start.