copyright law

Fixing the Law’s Bias Against Sharing

In the quest to imagine and build a new “sharing economy,” one factor that is often overlooked is law.  What shall be the role of formal law in a world of social enterprises, shared workspaces, cohousing, car-sharing groups, tool-lending libraries, local currencies and crowdfunding?  Who has legal rights in these various contexts, and what do they look like?  Who holds the legal liabilities?

These questions are sometimes ignored by commoners who consider the law a retrograde, irrelevant force to be avoided.  But even among those who acknowledge the inescapability of conventional law, the contours of legal rights and liabilities are not always self-evident because the law tends to be silent about commoning, or construes such activities in archaic legal categories. The law as it now stands presumes that we are either businesses or consumers, employers or employees, or landlords and tenants.  Production and consumption, and investment and usage, are "naturally" considered separate activities pursued by different people. 

But nowadays countless activities in the sharing economy are blurring old categories of law. There may be many parties involved in managing a a workspace, childcare facility or online information, or perhaps many people have ongoing relationships and responsibilities and entitlements that are collective and evolving. Should the strict letter of the (archaic) law necessarily trump our informal, self-negotiated social rules? 

Janelle Orsi, director of the Oakland-based Sustainable Economies Law Center, has tackled these and many other such questions in a terrific book, Practicing Law in the Sharing Economy:  Helping People Build Cooperatives, Social Enterprise and Local Sustainable Economies (ABA Publishing).  The book covers a monumental array of legal topics that are relevant to the sharing economy.  Most of the chapters deal with how to craft agreements that validate special forms of sharing – for example, how to form organizations, how to exchange with each other and how to invest in each other’s work.  There are also chapters for shared working arrangements, mutual provisioning, sharing rights to land, sharing rights to intellectual property, and managing collective risks.  

Goodbye, Pete Seeger!

In a time when pop stars are most known for their silly haircuts, salacious outfits and fleeting half-lives, it is almost impossible to comprehend Pete Seeger, the legendary folk icon who died yesterday at age 94.  Seeger was a giant of a human being, a man who insisted upon living humbly but with conviction and courage. 

His commitment to the public good was aching to behold.  When Congress asked him to name names in the 1950s, he refused and was blacklisted.  Undeterred, he toured colleges and coffee houses around the country to make a living.  When his beleaguered former singing partners the Weavers endorsed Lucky Strike cigarettes, presumably to pick up a few bucks, he refused.  When he returned to network television in the late 1960s to sing on the “Smothers’ Brothers” variety show, he choose to sing a provocative song, “The Big Muddy,” lambasting the Vietnam War and LBJ – hardly the kind of song to revive his career.

And yet, Seeger was no dour nay-sayer or small-minded zealot.  He was joyful, generous and optimistic.  He lived his confidence in the power of song to bring people together, beyond politics.  Through his person and the songs he wrote, Seeger’s music came to define the American experience during the civil rights era, the Vietnam War, the environmental movement, and beyond.  It’s hard to imagine the past fifty years without If  I Had a Hammer; Where Have All the Flowers Gone?; Turn, Turn, Turn; The Lion Sleeps Tonight; We Shall Overcome; and many other Seeger songs. 

His determination to nurture wholesome action in the face of abusive power was also a wonder.  From fighting fascism and the Klan to empowering ordinary people to become active citizens, Seeger did not let up.  One of his great inspirations was the Hudson River Clearwater Sloop, which exposed thousands of people to the joys of that river – and the pollution that was endangering it.  He showed up at protests and strikes and at community centers and schools.  How many performers and activists keep at it for more than 70 years without stopping?

Hollywood and the record industry got some serious comeuppance when the European Parliament overwhelmingly defeated a copyright maximalist treaty by a 478 to 39 vote on Wednesday.  Ouch!  This is a very sweet moment to savor. 

The content industries and trade representatives had been negotiating the so-called Anti-Counterfeiting Trade Agreement for six years behind closed doors.  Civil society organizations were absolutely barred from the process even though industry players had full and complete access and participation.  The proposed changes to copyright law would have empowered copyright industries to throttle free speech on the Internet without due process; allow users to be barred access to Internet accounts; and force Internet service providers to act as copyright police by patrolling users’ web habits. 

The idea behind the ACTA treaty was to negotiate a new global standard of strict copyright standards.  It was also a sly tactical feint to use international policy venues to help impose stiff copyright rules on the US without having to go through the US Senate for treaty ratification (Obama could simply sign it as an “executive agreement”).  The point of this subterfuge was to avoid any bruising public debate about or political fallout from much-hated provisions of the agreement.

The defeat of ACTA is a sweet moment because arrogant trade reps and industry moguls had airily dismissed critics.  They thought that their insider access, lobbying dollars and propaganda campaigns could just ram the whole stinkin’ mess through.  But after last year's huge Internet mobilization against SOPA and PIPA – the Stop Online Privacy Act in the House and the Protect IP Act in the Senate – it was clear that Internet users were getting their act together as a political force.  That anti-SOPA, anti-PIPA effort stunned Congress; industry-backed legislation that had previously sailed through was stopped dead in its tracks.  The spell of the entertainment industry's cozy influence-peddling was broken, at least for a while.

Harvard Joins the Open Access Revolt

The publishers of research journals don’t get much attention because their products are not very exciting.  Mentions of Science or Nature do not exactly quicken the pulse.  But that doesn’t mean that the publishers of academic journals aren’t as predatory and profiteering as any Fortune 500 bank or oil company. 

It now appears that the major universities that generate so much of the world’s research (only to buy it back from publishers at huge mark-ups) could be getting ready to fight back.  Harvard University is publicly urging its faculty members to avoid publishing in journals that require paid access, and to publish instead in open access journals.  Open access literature can be defined as works that are digital, online, free of charge, and free of most copyright and licensing restrictions.

As the Guardian (UK) reports, the Harvard Faculty Advisory Council has sent a memo to 2,100 professors and researchers informing them that “major periodical subscriptions, especially to electronic journals published by historically key providers, cannot be sustained: continuing these subscriptions on their current footing is financially untenable. Doing so would seriously erode collection efforts in many other areas, already compromised.”

Wow! The save-the-Internet protests by Wikipedia, Google, Reddit, Boing Boing and hundreds of other websites marks a watershed moment in the evolution of networked political expression. Millions of Internet users learned that Congress actually can cripple the open Internet in the manner of authoritarian regimes, albeit in the name of copyright law.

Such mass politicization is powerful stuff. Within 24 hours, Senate Majority Leader Harry Reid postponed a scheduled vote on the “anti-piracy” Web censorship legislation known as SOPA and PIPA (Stop Online Piracy Act and Protect IP Act). The abrupt turnabout was widely regarded as a face-saving move for the benefit of Judiciary Committee Chairman Patrick Leahy, a key sponsor of the bill.

Although protests had been building for weeks, the one-day shutdown of popular websites suddenly made visible a huge, alternative universe of citizens who are usually ignored in Washington, D.C. Suddenly the Old Guard could not broker their self-serving, insider deals in the shadows. Suddenly the Web demonstrated its power as a new sort of theater for organizing and representing the public to confront conventional governance.

Unbeknownst to millions of people recovering from their celebrations the night before, New Year's Day is a mini-celebration nested within a more famous holiday. Who among us realized that it was.... “Public Domain Day.” This is the date on which copyrights are supposed to expire on millions of works from a previous generation. It's the date on which the proprietary controls lapse and creative works become born again as public domain artifacts that can be freely used by anyone, for any purpose.

Alas, nothing entered the public domain this year. In fact, nothing will enter the public domain until January 1, 2019, thanks to the twenty-year extension of copyright law that Congress enacted in 1998 at the behest of Disney Co. and other media giants. This may explain why Public Domain Day remains so obscure! Nonetheless, the redoubtable host of Public Domain Day – the Center for the Study of the Public Domain at Duke Law School – annually commemorates this date to educate the public about the theft of works that rightly belong to them.

For this year's “celebration,” we learn how the public domain has been impoverished through excessive copyright terms. Last week the Center provided a wonderful survey of the cultural heritage that remains locked up. “What Could Have Entered the Public Domain on January 1, 2012?” it asks. The answers include the films The Body Snatchers, Rebel Without a Cause, Lady and the Tramp.  Then there are all the books from that 1950s that you could copy and share for free: Vladimir Nabokov's Lollita; Rudolf Flesch’s Why Johnny Can't Read; J.R.R. Tolkien’s The Return of the King, the last book of his Lord of Rings trilogy; and Edward Steichen’s famous book of photographs, The Family of Man; among many others.

Two recent developments suggest that the reactionary regime of maximalist copyright can still command a lot of raw political power to beat back commoners, flout legal principles and craft the law to its liking. Yet at the same time open networks and default norms of sharing are getting some serious traction these days, as two other developments attest. Could a post-reactionary world of free culture be at hand?

First, the bad news. A few weeks ago the EU extended the term of copyright protection for music recordings by another twenty years – an ignoble replay of what the U.S. Congress did in 1998 for U.S. copyright law. You may recall that the Disney Co. was determined to stop Mickey Mouse from entering the public domain, and the motion picture, recording and publishing industries were just as eager to reap a public giveaway worth billions of dollars.

If the copyright extension had not been adopted, lots of British music recordings from the 1960s from the Beatles to the early Stones and many others were expected to enter the public domain in 2012. Now there's a chilling thought: music that's still popular becoming free!  Alternatively, the artists themselves could begin to distribute the music themselves, rather than having to let the record labels have exclusive rights for another 20 years.

When making the case that the terms of copyright protection are too long – currently, an author’s lifetime plus 70 years – it is not uncommon to note that “Happy Birthday to You” is still under copyright.  Yes, that ubiquitous little ditty of folk culture is a piece of private property.  It should inspire a fair bit of outrage that a song first published in 1893 will remain copyrighted until 2030. 

While you won’t get dunned for singing it at home, the private ownership of the song means that many restaurants such as Red Lobster and Outback Steakhouse have had to develop their own “birthday songs” in order to avoid paying a “public performance” licensing fee to ASCAP.  If a documentary film or TV broadcast (such as the news) carries a snippet of “Happy Birthday,” the producers must pay a fee to Summy-Birchard, the current owner of the song, which is also a subsidiary of Warner/Chappell Music Inc., which is the publishing arm of Warner Music Group, which itself is owned by Time Warner.  

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.

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