Book Essay - Spring 2005

Celestial Jukebox

The paradox of intellectual property

By Siva Vaidhyanathan | March 1, 2005

 

I often open my speeches by asking for a show of hands: How many people are happy with the current intellectual property systems, American or global? Whether the audience includes students, professors, hackers, librarians, musicians, filmmakers, executives, or copyright lawyers, I have yet to see a hand pop up. Everyone is frustrated with some aspect of copyright today, even—perhaps especially— the very industries that dictate the federal statutes and multinational treaties that have changed the law so radically in the past 10 years.

The copyright industries are understandably concerned about the rapid spread of content moving freely from personal computer to personal computer as global bandwidth swells. They are also justifiably worried about the proliferation of real piracy—bazaars in cities from Mexico to Russia to China to the Philippines to India. Even though legislatures around the world have consistently granted every request to change the law and step up enforcement, the industries keep asking for more. In an attempt to build in copy control technology or make illegal any machine that might facilitate infringement, the Motion Picture Association of America recently asked Congress for radical new proposals that would put the U.S. government in the business of dictating design standards for consumer electronics.

Meanwhile, users, citizens, fans, students, teachers, and researchers increasingly express frustration over the already existing technological restrictions over legitimately acquired content. They—we—are right to be furious about recent attempts to stifle criticism and creativity (not to mention teaching and research) by the rampant abuse of copyright. We have created an absurd global system: copyright lasts longer than ever before, protects more kinds of works than ever before, and has more methods of enforcement and prevention built into it than ever before. Yet there is almost no digital content that I can’t get for free somewhere on the Internet or down on the corner of Baxter and Canal streets in Manhattan. Patents cover more products, processes, and naturally occurring phenomena than ever before. But attempts to circumvent patents always keep pace.

The industries with the most to lose from the global flow of information and information-based products—big media, big agriculture, and big pharmaceuticals—have so far done remarkably well in this new information ecosystem. Still, we all seem to be complaining about a set of laws that has worked spectacularly well for more than 200 years in the United States and 300 years in England. More important than the fact that we can score Spiderman 2 on the street is the availability of almost any book printed in the last hundred years via the enormous library systems that surround us. Copyright has filled these libraries with books, music, video, and software. In 2002, the copyright industries as a sector of the U.S. economy generated more export dollars than any other sector—more than automobiles, agriculture, or weapons. Clearly, something is working and someone is doing good work.

Both of the statements that follow are true: intellectual property rights are stronger than ever before in human history; intellectual property rights are weaker than ever before in human history. How can that be? Efforts to strengthen intellectual property rights (the prescription) preceded the rise of the behaviors such rights were intended to prevent (the prognosis). Much recent flaunting of intellectual property occurs as a direct if inarticulate challenge to the encroachment many see of recent copyright legislation on personal liberties and well-established habits.

In other words, the more repressive the regime, the more people struggle to escape it. Efforts to curb or damn up the flow of information generate opposition and indignation, and end up undermining the very norms they hope to bolster. The stronger the laws get, the harder they are to enforce. The more combative the rhetoric of protection, the more belligerent the rebels become. The world of intellectual property is in such serious disequilibrium that investors don’t know whether to place bets on digital media products and artists don’t know if they are going to be sued for doing what they have always done. Still, strangely, investors keep investing, writers keep writing, and singers keep singing.

Almost all of the important recent books about intellectual property come from critics of overprotection and global expansion. The scholarly movement began with James Boyle’s influential Shamans, Software, and Spleens (1996), which sparked readers to consider launching a movement like environmentalism for the worlds of information. Rosemary Coombe offered an anthropological account of global policy changes in The Cultural Life of Intellectual Properties (1998). Soon after, Lawrence Lessig wrote the first of three powerful books diagnosing the digital property grab, Code and Other Laws of Cyberspace (1999). Jessica Litman followed with Digital Copyright (2001), an account of the political folly that generated the Digital Millennium Copyright Act of 1998. Last year Lessig published Free Culture: How Big Media Uses Techcnology and the Law to Lock Down Culture and Control Creativity, the best book every written about intellectual property. He convinced his publisher to release the electronic text of the book for free on the Internet with a Creative Commons license that explicitly allows people to remix the work and create derivative forms such as audio books, translations, and annotated versions. The freedom to use the text encouraged professors to assign it in classes while the book was still in hardcover, which is almost never done. Within weeks of the book’s release, university student activists borrowed the name and declared themselves to be part of the “Free Culture Movement.” As The Power Elite was to the New Left, as Silent Spring was to the environmental movement, as The Feminine Mystique was to the women’s movement, Free Culture is to the effort to limit corporate control over culture and information. Every movement needs an ur-text.

Perhaps because the patent system is drier (although the stakes are higher), no one has yet written the great, accessible, influential, and passionate account of the expansion of corporate control over inventions, processes, or drugs. Doron Ben-Atar’s Trade Secrets (2004) offers a solid and engaging account of how early American industrial development depended on the United States acting as a pirate nation, encouraging the appropriation of technological innovation from Europe. And Adam Jaffe and Josh Lerner’s Innovation and Its Discontents (2004) criticizes the excesses of the current American patent system. Both are excellent books, but they are limited to the American story of gadgets and industries.

Global accounts of recent trends in intellectual property constitute the greatest gap in the literature. We could use a book that tells the full story about how a corrupt and imperialistic global patent system is spreading suffering and inhibiting relief from treatable maladies. With babies dying as a result of how little outcry there is over such injustices, there must be a way to make the global patent system enthralling to readers.


One striking paradox of intellectual property these days is that an arcane and muddy subject could generate such commercial interest, and that so many critics of copyright could sell books using the rickety system that they attack. Three new books from major commercial publishing houses offer journalistic diatribes against current copyright law that might well have the bite to convince a busy public that intellectual property issues are important to their daily lives. Finally, it seems, we have just enough horror stories and a powerful enough vocabulary to take these issues to the streets, or at least to the mall.

David Bollier is a writer and activist in the spirit of the early work of his former boss, Ralph Nader. Bollier’s first book, Silent Theft (2002) outlined the theory of an “information commons,” outlined the theory of an “information commons,” that the stories, facts, myths, images, and songs that belong to all of us—that cannot be privatized through intellectual property. His new book, Brand Name Bullies: The Quest to Own and Control Culture (Wiley) is a catalog of absurdities. It charts the excesses of corporate control over signs, symbols, songs, and sagas that make up our collective identity as Americans, yet increasingly become fenced off from us, rendering them inaccessible for public use. Focusing on trademarks and copyrights, Bollier tells stories that should rile anyone concerned about free expression. For example, Bollier describes the Mattel toy company’s attempts to stop artists, songwriters, and scholars from employing images of or references to Barbie dolls in their work; Bikram Choudhury’s efforts to copyright yoga asanas (positions) under his own name, despite the ancient practice he has relied on to make his living and reputation; the U.S. Olympic Committee’s success in getting just about everyone (even Greek immigrants) from using the word “Olympic” without permission; and Bill O’Reilly’s ability to get lawyers for Fox News to try to assert control of the phrase “fair and balanced” as a way of censoring Al Franken’s book, Lies and the Lying Liars Who Tell Them: A Fair and Balanced Look at the Right (2003).

Bollier’s book ends on a hopeful note, listing the individuals and organizations that make up the free culture movement. And he also advocates “the commons” as a substitute for the “property talk” that has dominated discussions of cultural control for more than a decade. He makes a forceful case for a better information world, one that encourages cultural democracy and rich participation and access. But he fails to give us a narrative arc or thread. His writing is direct and clear, but he stands at a distance from the victims and perpetrators of the copyright crimes he describes.

Kembrew McLeod, in contrast, delivers a lively, personal account of the ways intellectual property messes with people—and how he messes with intellectual property. In his new book, Freedom of Expression: Overzealous Copyright Bozos and Other Enemies of Creativity (Doubleday), McLeod pushes the corporate control of culture to its breaking point. Where Bollier is sober and relentless, McLeod is ironic and witty, writing with a hip-hop influenced youth-savvy diction that demonstrates his confidence and engagement with the material and the culture that means so much to him. McLeod—a journalist, critic, musician, filmmaker, and professor of communication at the University of Iowa—pops into the story here and there. In fact, his best anecdote features himself. He once tried to sell his soul in a jar on eBay. Back in 1998, while he was a graduate student at the University of Massachusetts, he trademarked the phrase “freedom of expression” as a prank, demonstrating the absurdity of the privatization of language. A few years later, AT&T used the phrase in an advertising campaign. So McLeod, lawyer by his side, sprang into action. He sent the company a “cease and desist letter.” He was overreaching, as many trademark owners do. But he made his point.

J. D. Lasica’s new book, Darknet: Hollywood’s War Against the Digital Generation (Wiley), explores the central technological question dominating the information and entertainment fields: how much autonomy should individuals have over their mediascapes? Should we be able to program our own personal soundtracks? Or should we rely on the menus offered us by companies struggling to maintain our attention and secure our subscriptions? Should we be able to take pieces of this, slices of that, elements of this other thing, and create a pastiche of cultural signs, thus remaking the meaning of the original works? We have the tools—computers, mixers, DVD burners, Internet servers—to do this. Do we have the legal rights? Will these tools function as freely next year as they did last year?

Lasica explores these questions by touring a variety of media forms that are converging in one messy, creative, digital marketplace— much to the consternation of Hollywood. He elaborates on what Lessig has described as “Northern California vs. Southern California.” The high-tech companies of San Francisco and Silicon Valley are pleased to offer their customers power over content. The media companies of Los Angeles and Hollywood want to dictate the terms of use of packaged and sealed content, preserving both integrity and price points. Through a series of interviews and clear explanations of complex technological issues, Lasica shows readers that Hollywood is probably betting on the wrong technological horses, and that we would be all be much better off if we empowered “citizen media” through the use of smarter, more democratic laws and policies.


In contrast to Lasica, McLeod, and Bollier, Pat Choate is an intellectual property enthusiast. He is not as persuasive an advocate as Bollier, as witty a prankster as McLeod, or as good a storyteller as Lasica. But he has a couple of things going for him that the others don’t: a global vision and an admirable commitment to precision and balance. Choate’s new book, Hot Property: The Stealing of Ideas in an Age of Globalization (Knopf), considers the role that intellectual property plays for the United States economy in worldwide markets, and compares U.S. intellectual property policies with those of England, India, China, and Japan.

Although he applauds intellectual property in general, and is blunt about the remarkable successes the United States has had in using its systems to gain a competitive advantage in the world economy, he is not blind to excesses. He concedes that drug prices are too high for most of the world’s HIV patients, but he is almost Panglossian about how market forces and bilateral negotiations might alleviate the price issues. Meanwhile he criticizes the life-saving compulsory-licensing policies instituted by India, Brazil, and South Africa, calling them “piracy” and “theft” instead of “treatment” and “healing.” On the other hand, Choate is clear that Lessig’s work has convinced him that recent expansions in the role and scope of copyright are doing more harm than good to innovators and artists in America.

In America—that is the key. Although Choate’s secondary research reads like a senior thesis summary of great works in the field, he does pay attention to the dynamics of global trade and regulation. But this book is nationalist in focus and “realist” in political ideology. What’s good for Merck is good for the United States. And what’s good for the United States is . . . well, good enough for Choate. After honestly summarizing Ben-Atar’s excellent work on how the United States operated as a pirate nation to build up its technological and industrial infrastructure, Choate—without a moral blink—berates developing nations in the 20th and 21st centuries for doing the same.

Just as strangely, Choate explains how Thomas Edison leveraged his tangle of patents over the growing film industry to limit competition and thus creativity. He describes Edison’s experience with glee, as if this story held lessons for how a regulatory system should work. Unable to concede that Edison was a thief, hack, and litigant as much as he was a brilliant inventor (perhaps more), Choate seems blind to how Edison retarded the industry and the emergence of narrative film as a cultural force for a decade or more. American film was a pirate industry from the start, moving to California (and occasionally northern Mexico) to escape Edison’s patent lawyers, the Teamsters Union, and New Jersey winters. Early directors not only stole camera, projector, and editing technologies from Edison, they stole plots and characters from notable authors without payment or permission. Hollywood lobbyists hate to be reminded of that these days.

Intellectual property maximalists have a short reading list of books that make their case. One maximalist book stands out, however. In 1994, Stanford Law professor Paul Goldstein published a beautifully written historical account of American copyright called Copyright’s Highway. In it he described the “celestial jukebox,” a system by which we could quickly and cheaply download any text, video, or sound that fit our fancy. The price per work would drop as supply increased. Companies would invest more in a diverse array of expression rather than hoping for one big hit to pay for all the dogs in the catalog. Our computers and televisions would converge and serve more as libraries than as delivery systems.

All we had to do to get this wonderful world of content, Goldstein wrote, was give up all quaint notions of the public interest in copyright, protections for libraries, teachers, or journalists, and all expectations that copyrights might expire and enrich the public domain. If we privatized everything, the market would make all our dreams come true.

Goldstein was half right. We can have all those benefits. We just don’t need to surrender our rights and privileges. That celestial jukebox turned out to be the Internet.

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