Would Shakespeare have survived the Internet? Scott Turow and the morality of propertizing creativity.

In the New York Times, Scott Turow, Paul Aiken, and James Shapiro ask whether Shakespeare would have survived the Internet:

The rise of the Internet has led to a view among many users and Web companies that copyright is a relic, suited only to the needs of out-of-step corporate behemoths. Just consider the dedicated “file-sharers” — actually, traffickers in stolen music movies and, increasingly, books — who transmit and receive copyrighted material without the slightest guilt.

They are abetted by a handful of law professors and other experts who have made careers of fashioning counterintuitive arguments holding that copyright impedes creativity and progress. Their theory is that if we severely weaken copyright protections, innovation will truly flourish. It’s a seductive thought, but it ignores centuries of scientific and technological progress based on the principle that a creative person should have some assurance of being rewarded for his innovative work.

There are a number of questions one might raise in response to Mr. Turow and his colleagues. For one, there are not many law professors other than the notoriously ineffective Charles Nesson who defend the legality of unauthorized file sharing. (To question the assumption that file sharing has a material impact on the music and publishing industries is, on the other hand, a different matter.) To conflate file sharing with tranformative appropriation in discussing copyright is the genuinely misleading rhetorical move. And Shakespeare may not be the best example to use in arguing that copyright and innovation necessarily go together. One might wonder, in fact, whether there really is such a thing as a sui generis artist, be that artist Shakespeare or Robert Johnson. Nor could one argue that there were no great artists and writers prior to the advent of what the Turow and his colleagues describe as “paywalls” around theaters or before copyright. Indeed, at least in certain markets the absence of copyright protection does indeed promote innovation. The very premise of Turow’s argument — that in the absence of the economic monopoly conferred by copyright creativity like Shakespeare’s simply won’t happen — is hardly indisputable.

Perhaps Judge Alex Kozinski, referencing Scott Turow of all people, put it best in dissenting from the 9th Circuit’s refusal to rehear en banc a case in which Vanna White successfully sued Samsung for violating her “right of publicity” by “appropriating” her “identity,” emphasizing that overprotecting intellectual property is as dangerous as underprotecting it (footnotes omitted):

Saddam Hussein wants to keep advertisers from using his picture in unflattering contexts. Clint Eastwood doesn’t want tabloids to write about him. Rudolf Valentino’s heirs want to control his film biography. The Girl Scouts don’t want their image soiled by association with certain activities. George Lucas wants to keep Strategic Defense Initiative fans from calling it “Star Wars.” Pepsico doesn’t want singers to use the word “Pepsi” in their songs. Guy Lombardo wants an exclusive property right to ads that show big bands playing on New Year’s Eve. Uri Geller thinks he should be paid for ads showing psychics bending metal through telekinesis. Paul Prudhomme, that household name, thinks the same about ads featuring corpulent bearded chefs. And scads of copyright holders see purple when their creations are made fun of.

Something very dangerous is going on here. Private property, including intellectual property, is essential to our way of life. It provides an incentive for investment and innovation; it stimulates the flourishing of our culture; it protects the moral entitlements of people to the fruits of their labors. But reducing too much to private property can be bad medicine. Private land, for instance, is far more useful if separated from other private land by public streets, roads and highways. Public parks, utility rights-of-way and sewers reduce the amount of land in private hands, but vastly enhance the value of the property that remains.

So too it is with intellectual property. Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture. . . .

But what does “evisceration” mean in intellectual property law? Intellectual property rights aren’t like some constitutional rights, absolute guarantees protected against all kinds of interference, subtle as well as blatant. They cast no penumbras, emit no emanations: The very point of intellectual property laws is that they protect only against certain specific kinds of appropriation. I can’t publish unauthorized copies of, say, Presumed Innocent; I can’t make a movie out of it. But I’m perfectly free to write a book about an idealistic young prosecutor on trial for a crime he didn’t commit. So what if I got the idea from Presumed Innocent? So what if it reminds readers of the original? Have I “eviscerated” Scott Turow’s intellectual property rights? Certainly not. All creators draw in part on the work of those who came before, referring to it, building on it, poking fun at it; we call this creativity, not piracy.

Turow and his colleagues are guilty, I think, of the “bad medicine” of “reducing too much to private property.” Perhaps Turow would describe me as a law professor advancing “counterintuitive” arguments, but he runs the risk of embodying (and profiting mightily from) a culture that has an unprecedented tendency to “propertize” everything it can and a blindness to the ways law cannot stem new practices made possible by technology. The inarguable truth is that the music and publishing industries once had virtual monopolies on the production and distribution of their products and that they no longer do. Those industries have largely reacted by trying to enforce a legal regime that grew up with and required the old means of production and distribution, which seems to me at least not the most productive way of promoting creativity.

Turow appears to be among the reactionaries trying to use the force of law to overcome reality. Last year he complained that publishers had made a mistake in making publishing e-book versions of writers’ works at the same time they published the book versions, agreeing with a publisher’s assertion that “there’s something radically wrong” when a market has the power to cause the value of a book to plummet.  When the publisher expanded on the point by stating that “I want to be able to say that a new book by Scott Turow is worth $28, and people should be willing to pay that,” Turow agreed, justifying his entitlement to the price by arguing that “[t]here is nothing wrong with [copyright holders] maximizing their profits . . . . If we really want to have a robust literary culture, then we have to think about the compensation system.”

I would suggest to the publisher and Turow that there might not be anything wrong with maximizing profits but that there might indeed be something wrong with charging a price that reflects the costs of printing and distributing books when the market now can deliver a product that need not be printed and that can be delivered virtually for free.

What is “intuitive” to Turow and the point of view he represents is that your creations are as much your property as your car or your computer. But “intellectual property” is not property in the same way as personal or real property. The very source of our nation’s copyright laws, the Constitution’s Copyright Clause,  makes clear that copyright law exists to promote invention and creativity, and to the extent it discourages invention and creativity it is unconstitutional. Nonetheless, Turow and many others cannot seem to overcome some “moral” conviction that to allow others to profit off of your creations is somehow to “steal” something from you. Again, Judge Kozinski in the Vanna White case quoted above, eloquently states the response to this “moral claim” (footnotes omitted; hyperlinks added):

Moreover, consider the moral dimension, about which the panel majority seems to have gotten so exercised. Saying Samsung “appropriated” something of White’s begs the question: Should White have the exclusive right to something as broad and amorphous as her “identity”? Samsung’s ad didn’t simply copy White’s schtick–like all parody, it created something new. True, Samsung did it to make money, but White does whatever she does to make money, too; the majority talks of “the difference between fun and profit,” 971 F.2d at 1401, but in the entertainment industry fun is profit. Why is Vanna White’s right to exclusive for-profit use of her persona–a persona that might not even be her own creation, but that of a writer, director or producer–superior to Samsung’s right to profit by creating its own inventions? Why should she have such absolute rights to control the conduct of others, unlimited by the idea-expression dichotomy or by the fair use doctrine?

To paraphrase only slightly Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S340], __, 111 S.Ct. 1282, 1289-90, 113 L.Ed.2d 358 (1991), it may seem unfair that much of the fruit of a creator’s labor may be used by others without compensation. But this is not some unforeseen byproduct of our intellectual property system; it is the system’s very essence. Intellectual property law assures authors the right to their original expression, but encourages others to build freely on the ideas that underlie it. This result is neither unfair nor unfortunate: It is the means by which intellectual property law advances the progress of science and art. We give authors certain exclusive rights, but in exchange we get a richer public domain. The majority ignores this wise teaching, and all of us are the poorer for it

Making creations property does not promote creation: fashion this time

It’s difficult in this era in which “property” is considered the source of liberty for people to get their heads around the idea that treating the products of creativity as part of a “cultural commons” is in fact more conducive to creativity and innovation than is strict copyright protection. Here’s some strong evidence of exactly that:

There is no copyright protection afforded to fashion designs. As a result copying is a matter of course in fashion design. You don’t exactly see a dearth of creativity and innovation in fashion design, do you?  In the video below, Johanna Blakely expands on this point. Of course, fashion designers are seeking federal legislation extending copyright protection to their designs. I hate it when ideology (here, that without the worship of “property” our way of life is doomed) trumps reality.

Property is not always the foundation of liberty: fashion and copyright.

It’s difficult in this era in which “property” is considered the source of liberty for people to get their heads around the idea that treating the products of creativity as part of a “cultural commons” is in fact more conducive to creativity and innovation than is strict copyright protection. Here’s some strong evidence of exactly that:

There is no copyright protection afforded to fashion designs. As a result copying is a matter of course in fashion design. You don’t exactly see a dearth of creativity and innovation in fashion design, do you?  Here, Johanna Blakely expands on this point:

And yet, of course, fashion designers are seeking federal legislation extending copyright protection to their designs. I hate it when ideology (here, that without the worship of “property” our way of life is doomed) trumps reality.

If a corporation is a person, why is an animal no more than a chair?

In light of the decision by the Supreme Court the other day in Citizens United regarding the rights of corporations to make campaign contributions without restriction, I felt compelled to republish a post from early last year:

Stephen M. Wise discusses the ways society shapes the development of the law in connection with the rising awareness that animals are not merely “things”:

Is it up to society to force a change in the law? Or will the law change society?

The law both leads and follows society. The legal system changes through the decision of judges or by legislatures enacting statutes. You saw this, for example, in the anti-slavery amendments to the U.S. Constitution in the 19th century and the numerous civil rights statutes of the 20th century. But the way the law changes and the way society changes are connected. People who try to change the law also depend upon changes in societal values, as well as upon scientific discoveries. In recognition of this, Rattling the Cage is crammed with reports about scientific discoveries on the nature of the cognition of chimpanzees and bonobos of the last 20 or 30 years. These discoveries form the springboard from which I can argue for their rights and personhood.

How do you think our view of animals will develop in the next 20 years?

It is going to develop in a complex way. First, a hierarchy of nonhuman animals will continue. Though nonhuman animals are considered legal things today, society does not view all nonhuman animals in the same way. Some we clearly value more than others. Even though chimpanzees don’t have any legal rights, we no longer euthanize them after they are no longer useful in medical experiments, as we do, say, to white mice. This fact both results from and drives the coming legal personhood of Great Apes. We’re beginning to see this not only in the U.S., but throughout the West. Westerners are also increasingly valuing their companion animals and I see increasing protection for them. The animals whom we thoughtlessly consume for food are being subjected to worse and worse conditions in the U.S. But an opposite trend is rising in [parts of] Europe. I think we will see the European trend expand even as factory farming in the U.S. increases. However, within the next 10 years, the American factory farming industry is going to learn how it has greatly overstepped and miscalculated just how much abuse of nonhuman animals used for food people are willing to accept. Stir in the environmental degradation that is its inevitable consort and there is going to be a backlash that will drive factory farming in the U.S. in the direction that Europe has taken and will, perhaps, drive at least some of it out of business.

Lewis Hyde: remaking copyright by recovering the past

Lewis Hyde is one of the great, and almost entirely unknown, U.S. geniuses. According to this past week’s New York Times Magazine, “David Foster Wallace called him ‘one of our true superstars of nonfiction.’ Hyde’s fans – among them Zadie Smith, Michael Chabon and Jonathan Lethem – routinely use words like ‘transformative’ and ‘life-altering’ to describe his books, which they’ve been known to pass hand to hand like spiritual texts or samizdat manifestoes. The source of much of this reverence is Hyde’s first book, The Gift (1983), which has never been out of print (it was recently rereleased by Vintage in a 25th-anniversary edition) and which tries to reconcile the value of doing creative work with the exigencies of a market economy.”

According to the Times, Hyde’s attention these days has turned to the ways computers and the internet have affected our views of creation and property. As I’ve written before, intellectual property may be property, but we make a huge mistake when we assume it is property just like land or couches are property. The ease with which we now can copy and instantly and disseminate intellectual property world-wide has, however, entirely upset existing intellectual property law. We should not be shocked by the legal chaos — when the material underpinnings on which law has been made change, the law is likely no longer going to work very well. When that upheaval occurs in a political climate that worships capitalism, we probably shouldn’t be surprised that, as Hyde puts it, “the last 20 years have witnessed a corporate ‘land grab’ of information – often in the guise of protecting the work of individual artists – that has put a stranglehold on creativity, in increasingly bizarre ways.”

One particular example of what upsets Hyde is the Sonny Bono Copyright Extension Act, which is commonly understood to be the result of Disney’s capacity to economically coerce legislation to protect its monopoly over Mickey Mouse. The point of copyright law is to encourage invention for the public good. As the Supreme Court has stated, “[t]he monopoly created by copyright thus rewards the individual author in order to benefit the public.” There is no reason to believe Mickey Mouse and Donald Duck would not have been invented and that Walt Disney would not have been fairly compensated for their invention without the Sonny Bono Copyright Extension Act’s posthumous extension of the Disney Corporation’s control over the images of Mickey Mouse and Donald Duck. Such laws provoke Hyde to write:

Always in the background lies the question of the commercialization of culture, exemplified at the moment by many things–the ‘enclosure’ of the public domain, the patenting of aboriginal medicines, proprietary control of genetic materials or of the internet, and the general market triumphalism that has followed the end of the Cold War.

According to Hyde, we can begin to achieve the intended purposes of intellectual property — to promote invention, not maximize the wealth of the inventors — if, as the Times writes, we recover

the idea of the cultural commons as a deeply American concept. To that end, [Hyde] excavates a history of the American imagination in which the emphasis is not on the lone genius (Thoreau scribbling hermetically in the Massachusetts woods) but on the anonymous pamphleteer, the inventor eager to share his discoveries. In an essay that offers a preview of his book (posted, fittingly, on his Web site), Hyde posits that the history of the commons and of the creative self are, in fact, twin histories. “The citizen called into being by a republic of freehold farms,” he writes, “is close cousin to the writer who built himself that cabin at Walden Pond. But along with such mainstream icons goes a shadow tradition, the one that made Jefferson skeptical of patents, the one that made even Thoreau argue late in life that every ‘town should have … a primitive forest …, where a stick should never be cut for fuel, a common possession forever,’ the one that led the framers of the Constitution to balance ‘exclusive right’ with ‘limited times.’ It is a tradition worth recovering.”

Protecting copyright through new technologies must accomodate our constitutional rights to free speech.

We are, of course, in the midst of a conflict between existing intellectual property laws and the radical changes to the material conditions on which those laws were built. Producers of music and video scream bloody murder because their products can be reproduced and disseminated at little cost, an entirely different situation than when that reproduction required expensive equipment and copies could only be sent out in phyisical form one at a time.

These are truisms, but they are the truisms that are at the basis of the intellectual property wars through which we are living.

There’s a new skirmish on the horizon, brought to my attention by Brian Ledbetter of Snapped Shot. According to Computerworld, “MySpace and Viacom International-owned MTV Networks today moved to resolve some key online video issues by tapping a new technology that inserts advertising into any videos uploaded by users to MySpace — whether they’re authorized or not.”

In other words, if you upload a copyrighted clip, the new technology will insert advertising into the clip whether you want it there or not. The motivations of the copyright owners are obvious. They want money for the use of their copyrighted materials, which they consider their “property.” But, while copyrighted materials are “intellectual property,” they are not property in the sense that real estate, money, and cars are property.

Here’s the rub: the technology poses some serious First Amendment problems. The fair use of copyrighted materials without consent is not an infringement of the copyright owner’s “property” rights.

We are not a society oriented only toward property ownership. Free expression, based primarily in the First Amendment of the Bill of Rights, is also foundational to our society. It is exposure to ideas, and not to their particular expression, that is vital if self-governing people are to make informed decisions. There is, however, an inherent tension here. While the First Amendment disallows laws that abridge the freedom of speech, the Copyright Clause calls specifically for such a law. The First Amendment gets government off speakers’ backs, while the Copyright Act enables speakers to make money from speaking and thus encourages them to enter the public marketplace of ideas.

Balancing this conflict is precisely the purpose of the fair use doctrine, as recognized in In SunTrust Bank v Houghton Mifflin Co., 268 F.3d 1257, 60 U.S.P.Q. 2d 1225, 14 F.L.W. Fed. C, 1391 (2001, 11th Cir.), rehearing denied en ban, 275 F3d 58 (11th Cir. 2001).  In Sun Trust, the owners of the copyright to Gone With the Wind sued the publisher that owned the rights to The Wind Done Gone, a critique of the depiction of slavery and the Civil-War era American South and that used and drew upon the characters and story line from Gone with the Wind.  The court ordered the lawsuit dismissed because The Wind Done Gone‘s use of the characters and story line from Gone with the Wind constituted fair use.  In doing so, the court made clear that “First Amendment privileges are . . . preserved through the doctrine of fair use” and that to hold otherwise would jeopardize “over 200 years” of the constitutional “guarantee that new ideas, or new expressions of old ideas, would be accessible to the public.”

This all goes in part to explain, I suppose, why I am so adamant in my support of the producers of Expelled, despite my contempt for their message and my respect, admiration, and love for their adversaries in their copyright litigation. Free speech is free speech. I even supported the rights of Nazis to march through a community full of Holocaust Survivors (as, of course, did the U.S. Supreme Court). (And, incidentally, I am a member of the board of directors of the local chapter of the Anti-Defamation League.)

So here’s the problem: MySpace and Viacom-MTV are creating technology that will insert advertising into speech that is mine. The mere fact that this speech will be composed in part of materials derived from their copyrighted works does not make my speech theirs; it does not give them the right to inject their advertisements into my own creations. They may think I’m stealing their property if I take a sample of one of their copyrighted works and use it to create something new. I think they’re wrong. But I also think they’re doing the equivalent of putting a billboard on my front lawn when they put their advertising in that new creation of mine. And I think that’s wrong too.

If a corporation is a person, why is an animal no more than a chair?

Stephen M. Wise discusses the ways society shapes the development of the law in connection with the rising awareness that animals are not merely “things”:

Is it up to society to force a change in the law? Or will the law change society?

The law both leads and follows society. The legal system changes through the decision of judges or by legislatures enacting statutes. You saw this, for example, in the anti-slavery amendments to the U.S. Constitution in the 19th century and the numerous civil rights statutes of the 20th century. But the way the law changes and the way society changes are connected. People who try to change the law also depend upon changes in societal values, as well as upon scientific discoveries. In recognition of this, Rattling the Cage is crammed with reports about scientific discoveries on the nature of the cognition of chimpanzees and bonobos of the last 20 or 30 years. These discoveries form the springboard from which I can argue for their rights and personhood.

How do you think our view of animals will develop in the next 20 years?

It is going to develop in a complex way. First, a hierarchy of nonhuman animals will continue. Though nonhuman animals are considered legal things today, society does not view all nonhuman animals in the same way. Some we clearly value more than others. Even though chimpanzees don’t have any legal rights, we no longer euthanize them after they are no longer useful in medical experiments, as we do, say, to white mice. This fact both results from and drives the coming legal personhood of Great Apes. We’re beginning to see this not only in the U.S., but throughout the West. Westerners are also increasingly valuing their companion animals and I see increasing protection for them. The animals whom we thoughtlessly consume for food are being subjected to worse and worse conditions in the U.S. But an opposite trend is rising in [parts of] Europe. I think we will see the European trend expand even as factory farming in the U.S. increases. However, within the next 10 years, the American factory farming industry is going to learn how it has greatly overstepped and miscalculated just how much abuse of nonhuman animals used for food people are willing to accept. Stir in the environmental degradation that is its inevitable consort and there is going to be a backlash that will drive factory farming in the U.S. in the direction that Europe has taken and will, perhaps, drive at least some of it out of business.

There’s nothing radical about Wise’s position. The law already recognizes that artificial entities such as corporations are legal “persons” and are therefore, among other things, entitled to the protections accorded people under the Bill of Rights.