Content

Selected Essays on Technology, Creativity,

Copyright, and the Future of the Future

How Copyright Broke

(Originally published in Locus, September 2006.)

The theory is that if the Internet can’t be controlled, then copyright

is dead. The thing is, the Internet is a machine for copying things

cheaply, quickly, and with as little control as possible, while

copyright is the right to control who gets to make copies, so these

two abstractions seem destined for a fatal collision, right?

Wrong.

The idea that copyright confers the exclusive right to control

copying, performance, adaptation, and general use of a creative

work is a polite fiction that has been mostly harmless throughout

its brief history, but which has been laid bare by the Internet, and

the disjoint is showing.

Theoretically, if I sell you a copy of one of my novels, I’m conferring

upon you a property interest in a lump of atoms — the

pages of the book — as well as a license to make some reasonable

use of the ethereal ideas embedded upon the page, the copyrighted

work.

Copyright started with a dispute between Scottish and English

publishers, and the first copyright law, 1709’s Statute of Anne,

conferred the exclusive right to publish new editions of a book on

the copyright holder. It was a fair competition statute, and it was

silent on the rights that the copyright holder had in respect of his

customers: the readers. Publishers got a legal tool to fight their

competitors, a legal tool that made a distinction between the

corpus — a physical book — and the spirit — the novel writ on its

pages. But this legal nicety was not “customer-facing.”

As far as areader was concerned, once she bought a book, she got the same rights to it as she got to any other physical object, like a potato or a shovel. Of course, the reader couldn’t print a new edition, but this had as much to do with the realities of technology as it did

with the law. Printing presses were rare and expensive: telling a

seventeenth-century reader that he wasn’t allowed to print a new

edition of a book you sold him was about as meaningful as telling

him he wasn’t allowed to have it laser-etched on the surface of the

moon. Publishing books wasn’t something readers did.

Indeed, until the photocopier came along, it was practically

impossible for a member of the audience to infringe copyright in

a way that would rise to legal notice. Copyright was like a tankmine,

designed only to go off when a publisher or record company

or radio station rolled over it. We civilians couldn’t infringe copyright

(many thanks to Jamie Boyle for this useful analogy).

It wasn’t the same for commercial users of copyrighted works.

For the most part, a radio station that played a record was expected

to secure permission to do so (though this permission

usually comes in the form of a government-sanctioned blanket

license that cuts through all the expense of negotiating in favor of

a single monthly payment that covers all radio play). If you shot a

movie, you were expected to get permission for the music you put

in it. Critically, there are many uses that commercial users never

paid for. Most workplaces don’t pay for the music their employees

enjoy while they work. An ad agency that produces a demo

reel of recent commercials to use as part of a creative briefing to

a designer doesn’t pay for this extremely commercial use. A film

company whose set-designer clips and copies from magazines

and movies to produce a “mood book” never secures permission

nor offers compensation for these uses.

Theoretically, the contours of what you may and may not do

without permission are covered under a legal doctrine called

“fair use,” which sets out the factors a judge can use to weigh the

question of whether an infringement should be punished. While

fair use is a vital part of the way that works get made and used,

it’s very rare for an unauthorized use to get adjudicated on this

basis.

No, the realpolitik of unauthorized use is that users are not

required to secure permission for uses that the rightsholder will

never discover. If you put some magazine clippings in your mood

book, the magazine publisher will never find out you did so. If

you stick a Dilbert cartoon on your office-door, Scott Adams will

never know about it.

So while technically the law has allowed rightsholders to infinitely

discriminate among the offerings they want to make

— Special discounts on this book, which may only be read on

Wednesdays! This film half-price, if you agree only to show it to

people whose names start with D! — practicality has dictated that

licenses could only be offered on enforceable terms.

When it comes to retail customers for information goods —

readers, listeners, watchers — this whole license abstraction falls

flat. No one wants to believe that the book he’s brought home is

only partly his, and subject to the terms of a license set out on the

flyleaf. You’d be a flaming jackass if you showed up at a con and

insisted that your book may not be read aloud, nor photocopied

in part and marked up for a writers’ workshop, nor made the subject

of a piece of fan-fiction.

At the office, you might get a sweet deal on a coffee machine

on the promise that you’ll use a certain brand of coffee, and even

sign off on a deal to let the coffee company check in on this from

time to time. But no one does this at home. We instinctively and

rightly recoil from the idea that our personal, private dealings in

our homes should be subject to oversight from some company

from whom we’ve bought something. We bought it. It’s ours.

Even when we rent things, like cars, we recoil from the idea that

Hertz might track our movements, or stick a camera in the steering

wheel.

When the Internet and the PC made it possible to sell a lot

of purely digital “goods” — software, music, movies, and books

delivered as pure digits over the wire, without a physical good

changing hands — the copyright lawyers groped about for a way to

take account of this. It’s in the nature of a computer that it copies

what you put on it. A computer is said to be working, and of high

quality, in direct proportion to the degree to which it swiftly and

accurately copies the information that it is presented with.

The copyright lawyers had a versatile hammer in their toolbox:

the copyright license. These licenses had been presented to corporations for years. Frustratingly (for the lawyers), these corporate

customers had their own counsel, and real bargaining power,

which made it impossible to impose really interesting conditions

on them, like limiting the use of a movie such that it couldn’t

be fast-forwarded, or preventing the company from letting more

than one employee review a journal at a time.

Regular customers didn’t have lawyers or negotiating leverage.

They were a natural for licensing regimes. Have a look at the next

click-through “agreement” you’re provided with on purchasing a

piece of software or an electronic book or song. The terms set out

in those agreements are positively Dickensian in their marvelous

idiocy. Sony BMG recently shipped over eight million music CDs

with an “agreement” that bound its purchasers to destroy their

music if they left the country or had a house-fire, and to promise

not to listen to their tunes while at work.

But customers understand property — you bought it, you own

it — and they don’t understand copyright. Practically no one understands copyright. I know editors at multibillion-dollar publishing

houses who don’t know the difference between copyright and

trademark (if you’ve ever heard someone say, “You need to defend

a copyright or you lose it,” you’ve found one of these people who

confuse copyright and trademark; what’s more, this statement

isn’t particularly true of trademark, either). I once got into an

argument with a senior Disney TV exec who truly believed that if

you re-broadcasted an old program, it was automatically re-copyrighted and got another ninety-five years of exclusive use (that’s

wrong).

So this is where copyright breaks: When copyright lawyers try

to treat readers and listeners and viewers as if they were (weak

and unlucky) corporations who could be strong-armed into license

agreements you wouldn’t wish on a dog. There’s no conceivable

world in which people are going to tiptoe around the

property they’ve bought and paid for, re-checking their licenses

to make sure that they’re abiding by the terms of an agreement

they doubtless never read. Why read something if it’s non-negotiable,

anyway?

The answer is simple: treat your readers’ property as property.

What readers do with their own equipment, as private, noncommercial actors, is not a fit subject for copyright regulation or oversight. The Securities Exchange Commission doesn’t impose rules on you when you loan a friend five bucks for lunch. Anti-gambling laws aren’t triggered when you bet your kids an ice-cream cone that you’ll bicycle home before them. Copyright shouldn’t come

between an end-user of a creative work and her property.

Of course, this approach is made even simpler by the fact

that practically every customer for copyrighted works already operates on this assumption. Which is not to say that this might

make some business models more difficult to pursue. Obviously,

if there was some way to ensure that a given publisher was the

only source for a copyrighted work, that publisher could hike up

its prices, devote less money to service, and still sell its wares.

Having to compete with free copies handed from user to user

makes life harder — hasn’t it always?

But it is most assuredly possible. Look at Apple’s wildly popular

iTunes Music Store, which has sold over one billion tracks

since 2003. Every song on iTunes is available as a free download

from user-to-user, peer-to-peer networks like Kazaa. Indeed, the

P2P monitoring company Big Champagne reports that the average

time-lapse between an iTunes-exclusive song being offered

by Apple and that same song being offered on P2P networks is

180 seconds.

Every iTunes customer could readily acquire every iTunes song

for free, using the fastest-adopted technology in history. Many

of them do (just as many fans photocopy their favorite stories

from magazines and pass them around to friends). But Apple has

figured out how to compete well enough by offering a better service

and a better experience to realize a good business out of this.

(Apple also imposes ridiculous licensing restrictions, but that’s a

subject for a future column.)

Science fiction is a genre of clear-eyed speculation about the

future. It should have no place for wishful thinking about a world

where readers willingly put up with the indignity of being treated

as “licensees” instead of customers.

The entire text can be found here: http://www.centerforsocialmedia.org/resources/publications/honest_truths_documentary_filmmakers_on_ethical_challenges_in_their_work/

Use of archival materials

Treatment of archival materials (especially still and motion photographic materials) was widely recognized as a site of ethical challenges, but there was a wide range of responses. Filmmakers repeatedly referenced problems with using historical materials, which document specific people, places, and times, as generic references or in service to a particular and perhaps unrelated point.

Some filmmakers were adamant that only precisely accurate images should be used. One filmmaker said that she tries to be as authentic as possible, down to the year and the place. She said she was trained to think of archival this way, to think that as a filmmaker, “you put it out there as truth. Someone else will be culling footage from your film. If it’s 1958 Manila . . . you have to be truthful.” Louis Massiah reiterated this. “A good film often has many lives, and one of the lives is in educational institutions, within schools and libraries. The film becomes a historical document. So to use archival footage . . . inaccurately, for mood or tone, . . . not looking at archival footage as a document of a particular time and place, becomes problematic.” Peter Miller noted that

the more fundamental questions are related to matters of life and death. With the Holocaust, you really don’t want to show anything other than the exact day or place. [You have to be] obsessively careful. In a world where people deny the Holocaust, you don’t want to give wind to that fire. And you want to be honorable.

Jon Else noted that he once changed a shot that appeared on a TV set in Sing Faster because it involved a Major League Baseball game, and he had determined that he could not license the footage. He said, “It’s a rotten thing to have done journalistically. That is the most deliberate falsification I’ve ever done . . . My test for these things is, ‘Does the audience know what it’s getting?’ ”

Some filmmakers, however, were comfortable using “stuff that evokes the feel of the spot or the person or the subject matter.” They believed it was acceptable when it helped the story flow without causing misunderstandings, and they did not believe in disclosure. “Saying ‘this blurry figure is not our guy’ would ruin the scene,” said Peter Miller. “You use [the photo] with the knowledge that ultimately it’s not important if it’s your guy or not, what’s important is the story.” Another recalled:

[One subject] talks about his childhood, his family all died . . . he didn’t have family photos. I at this point had a hobby of buying super 8 films at a flea market, found some home movies from the ’50s of a family, it worked perfectly, a kid his age, house, it was perfect. I used it, and I’m sure 99 percent of the people who watched the film thought it was him and his family. In a certain sense there is something “deceptive” about that. There are purists who would feel that’s not right. Ultimately I’m not of that position. I feel like I approached the subject differently. One struggles enough in making a good film.

Ken Burns recalled having to decide between two photographs to illustrate the point that Huey Long was often surrounded by bodyguards. One featured his typical bodyguards, in street clothes. Another featured uniformed guards—a one-time, exceptional moment. After discussion with his team and with professional historians, he decided for the atypical shot, because it communicated his point (that Long used bodyguards) more rapidly. “I sacrificed a little bit of accuracy. But did I? The reason we still talk about [this] is because it was a perfect ethical conundrum. It spoke to the possibilities as well. It made the film better. It did not compromise an ultimate truth.”