hydrarchist writes:

"Rick Prelinger is a tireless agitator against copyright laws, and is responsible for the placing on line of a huge volume of public domain films that others can appropriate for their own ends. This essay is his contribution to The Anti-Capitalism Reader, edited by Joel Schalit."

"Yes, Information Wants To Be Free, but How's That Going To Happen?:

Strategies for Freeing Intellectual Property"

Rick Prelinger

Why Worry About IP While Chaos Rules?

As I write in late February 2002, the United States has declared itself to be in a state of war. But even as our government asserts anti-terrorism as its first priority, corporations hustle to make the world safe for business. The courts are clogged with intellectual property lawsuits. Lawyers are busy churning out cease-and-desist letters to alleged copyright infringers. Entertainment conglomerates are consolidating their control over the fibers, cables and switches on which programming is distributed. Hackers are equated with terrorists and are forced to defend their ability to explore, reengineer and retool hardware and software. Content and advertising continue to combine into a tediously promotional happy meal. The limits of permissible speech in the mass media tighten every day. Not a quiet time, not a happy time, and under wartime cover decisions are now being made that will affect all our futures as producers and consumers of information, culture, and the arts.Today, products of the intellect are copyrighted at the moment of creation, patented before release to the world, and trademarked before sale, born not as contributions to a shared body of knowledge or heritage, but as "intellectual property." Wars are raging over the ultimate control of IP, and the terms of engagement seem to change almost weekly. This conflict is likely to envelop us for a long time, and as such it's hard to know how it will play out. But this isn't an excuse for waiting to act. If there's any chance that anti-capitalist models for the distribution and control of content will ever work, we need to be thinking beyond today's ruling paradigms.

In this essay, I hope to convince you that although a critique and restructuring of copyright law (and the concept of copyright in general) is immensely valuable, focusing exclusively on changing copyright law is a smokescreen. Copyright reformism focuses on fixing copyright law, rather than articulating a more fundamentally radical vision about how information, ideas, art and culture might be produced and exchanged. It constrains us into thinking in limited terms, terms that might not necessarily be our own, and most especially forces us into defensive positions. When copyright "infringement" is equated with stealing and terrorism, when the free exchange of content is criminalized, and when intimidating legal letters fly freely, it is easy to feel defensive, and worse, to behave reactively. When we are obliged to defend ourselves against assaults motivated by someone else's agenda, we are fighting for freedom of expression on unfriendly turf, and are unlikely to win what we deserve.

Reformism is one of the first questions that arises when we think about anti-capitalism ways of seeing intellectual property. Is it really worth our time trying to solve problems created by capitalist economics while capitalism still prevails? What do we stand to gain by challenging capitalist control over IP while other kinds of property remain under the same owners? Why even bother trying to synthesize a new theory of IP, a progressive version of copyright law, or a strategy to overturn the carefully woven net of legislation that benefits the "owners" of IP over the rest of us? Perhaps most important, does liberating IP benefit the many, or just the relatively few heavy content users in the developed world looking for free music and movies?

There are good reasons to develop anti-capitalist perspectives on intellectual property. We might, for instance, think of freer content as an end in itself, as a radically different way of thinking about the distribution of knowledge and culture, and as a utopian wedge that might lead to freer ways of circulating other goods and services. We might imagine a future where content functions to increase consciousness, improve the quality of life, and integrate culture into daily life, and consider how we might get there. And, even as most high-demand IP remains under high-level corporate control, there are a few equalizing tactics that could tip the balance towards a different kind of IP landscape a shared, profit-free body of knowledge, culture, and entertainment whose very existence might challenge long-lasting concepts of property ownership and control and stimulate popular alternatives to winner-take-all thinking. We might even imagine content that is not simply created to distract or entertain (though distraction and entertainment can be noble objectives too). Culture can illuminate and demystify property relations, and changing the way that culture is distributed can lead the way to changing how property is distributed.

And all of us have an interest in halting current trends towards increased corporate control over IP. The arguments are familiar by now to most of us. By commodifying and asserting ownership over ideas, art, culture and inventions, corporations control much more than just intangibles. While asserting that they stand for the protection of authors' and creators' rights, large corporations quite often bind creators to self-serving or coercive contracts that cause the lion's share of royalties to remain in corporate hands. Creativity, innovation, problem-solving, and all kinds of social change are fostered and encouraged by the free exchange of ideas and inventions. A society that places impermeable barriers on the movement, exchange, and appropriation of IP, such as we are now doing, places frightening limits on its ability to evolve and progress. In some cases control over IP actually poses life-threatening issues, as in the case of patented drugs that are not available at affordable prices to residents of developing countries. Finally, the lack of a free (not a free-trade!) regime for the exchange of IP that still fairly compensates individuals for their efforts tends to prevent developing regions build their own content industries that have a chance of competing for their own people's attention.

Copyright Seeks (and Gets) Eternal Life

Copyright is not likely to disappear all by itself. It may be under siege by new access technologies, but it is far from dead. The "copyright-based industries" -- publishing, entertainment and software -- contribute hundreds of billions of dollars to the US economy. Intellectual property is our second most valuable export, and more and more of us labor to create, manage, distribute, sell and shrink-wrap what passes for "content" these days. Though I'd like to imagine differently, I find it inconceivable that the large corporations that control intellectual property rights will stand by as the fences separating their holdings from the public domain melt down.

Copyright law states that works of the intellect are copyrighted at birth beginning at the moment when they become fixed in tangible form. But unlike organic creatures, copyrights enjoy what seem to be an infinitely extendable lifespan. Congress's original intent in drafting copyright law was to grant exclusive rights for limited terms, linked to the life spans of authors, in order that they could enjoy the fruits of their labor while alive. Until 1978, copyrights generally lasted 28 years and could, if formalities were strictly followed, be renewed for another 28. Publication without proper copyright notice threw a work into the public domain. This is why so many older US works are out of copyright, unlike works that originate in most other countries. After 1978, the US "harmonized" its copyright laws with those of most other countries, extending the term of copyright for new works created by individuals to the span of their lives plus 50 years, and new works created by corporations to 75 years. In 1993, renewals for older works became automatic. The tragic death of John Lennon at age 40 was cited in congressional testimony, as paid lobbyists warned that his young son Sean might outlive the terms of his father's copyrights, and see John's works exploited without proper compensation. In 1998, the largely undebated Sonny Bono Copyright Term Extension Act further "harmonized" our copyright laws with our European trade partners, extending terms to life plus 70 and 95 years respectively. These laws have collectively kept hundreds of thousands of US works out of the public domain, and restored copyrights to perhaps millions of foreign works. Such lengthy timespans lock works up for an inordinately long time, but then corporations often live longer than people do.

In February 2002, the U.S. Supreme Court agreed to hear arguments in Eldred v. Ashcroft, a challenge to the Sonny Bono Act. Plaintiff Eric Eldred, aided by a host of lawyers, scholars, librarians and archivists, argued that continual extensions of copyright law violate the constitutional specification that copyright should be for a limited duration. The Court's agreement that a constitutional question is involved here has sent waves of concern through Hollywood and the rest of the community of IP proprietors, and excited many others. In contrast to the comparative silence surrounding the original legislation, debates over the fairness of lengthy copyright terms are now widespread. Though it's impossible to predict how the Court will rule, it is exciting to see generally arcane IP issues discussed in the mainstream press, and the increased growth of skepticism around the question of corporate control of IP.

Corporate copyright holders have also pushed to limit the definition of "fair use" and, now, under the Digital Millennium Copyright Act of 2000 (DMCA), to prevent just about all unpaid copying, performance, distribution and collecting of digitally based works. The DMCA encourages copyright holders to build protection mechanisms into technology, and then criminalizes "circumvention" attempts to reengineer the technology, however well-intentioned (and necessary) they may be.

Beyond Copyright Consciousness

Many commonly circulating ideas about IP predict the end of copyright, following two major threads: technology killed copyright, and copyright is anachronistic in networked culture. Both of these notions are simplistic and ahistorical, and I'll try to argue that they're shortsighted. What we really ought to be talking about is access to works. Though access is related to copyright, it's really more fundamental to our freedom to think and experience.

Trying to debunk the idea that technology killed copyright is a tiring chore. Yes, the proliferation of new tech tools makes it harder to control the unauthorized duplication of copyrighted works, and such tools are certainly sustaining another thrilling chapter in the arms race between geeks and suits. But people are still renting videos and buying DVDs. Yes, millions of people used Napster and now other peer-to-peer services to collect semi-degraded music files, but the record companies cut Napster off at the knees. As soon as its successors become big enough to pose a threat, the record companies go to court to protect their oligopoly. (Interestingly, the judge who essentially closed Napster down has just opened the way for them to sue the large record companies for conspiring to control the recorded music business. Stay tuned.)

Many prominent individuals have lined up behind the notion that we live in a post-copyright age. They try to convince us of the total irrelevance of copyright, that "information wants to be free." Others posit that the disintermediating characteristics of the Internet will empower individual authors and artists by permitting them to sell their work directly to their audiences. People like John Perry Barlow and Esther Dyson imagine an era where creators are compensated in a royalty-free realm, where reputation, expertise, consulting chops and sales of collateral products almost magically generate income. This isn't completely off the mark, because this works for some people, notably the proponents of those ideas themselves. Like so many economic schemes today, it presumes a winner-take-all model. But how many writers can give away their texts and survive on honoraria from guest slots on CNN? And, ultimately, who cares enough about most creative people to help provide them with a living? As long as IP is bought and sold as a commodity, market rules will apply.

Perhaps copyright needs to be reincarnated in some modified form. I see nothing wrong with a system that protects the rights of individual creators, especially if it helps to equalize their position with regard to the entities that may help distribute their work. But what should those rights be? I'm not yet prepared to say. In many ways copyright law has outlived its social and economic function. And this is why I am sympathetic to those who support formative chaos, those who rhetorically call for total and complete disobedience of copyright law, rather than cloaking their efforts under a veil of disingenuous responsibility. If we're to transform authoritarian copyright laws into social practices that protect creators and benefit society in general, a period of flux and experimentation will be essential.

Experimentation may be essential for yet another reason, too. Other kinds of rights are asserted in cultural works, rights that are harder to dismiss than copyrights held by anonymous corporate entities. These are rights claimed by stakeholders who don't hold copyright: unions seeking to protect their members against exploitation; creators who hold "moral rights" guaranteeing that their work will not be performed or distributed in mutilated or incomplete form; individuals whose creativity may make up part of what we see, hear or read in a particular work. How can an anti-capitalist framework for IP compensate the writer, director, composer, or actors for their work in a film over that film's life? How can such a framework guarantee that someone's work won't be replayed in a distorted form? Should such compensation or guarantees even exist? These are difficult questions.

Copyright law is hundreds of years old. Its long history and densely structured system of legal precedents would itself be enough to harden it against anyone who would dare to reject or ignore its power, and that doesn't take account of the power held by the world's largest copyright owners. Copyright or, more accurately, the restriction of the right to copy and redistribute is believed to be the base of the content industry, rapidly growing into one of the world's largest and most profitable industries. It is possible that one day IP-based industries will together form the largest economic sector of all. It is widely believed that copyright is necessary for these industries to flourish. It is also widely felt that interference with or infringement of copyright constitutes interference with the well-being of the present and future capitalist economies. And since the concept of IP labels products of the intellect as "property," unauthorized appropriation or movement of IP constitutes theft. Advocacy of theft earns no friends for the advocate. These terms trap those of us who believe in freedom of expression.

Perhaps instead we should think of IP as "born free," which runs directly counter to the U.S. Copyright Act of 1976, which declares that all human works capable of being fixed in enduring form are copyrighted at the moment of their creation. But beyond that, we should also consider whether the struggle over copyright is really the most meaningful struggle for us right now. I'm going to propose that we focus on access instead.

Access and Authorship

"Access" to works of the intellect doesn't just mean being able to read, listen, watch, or feel them. Today, it also means being able to incorporate other people's works into ones own: to quote, resynthesize, recontextualize, sample, appropriate, or plunder. Today's reader is also a writer; today's listener a sampler; today's spectator an editor or director. Many of us are no longer content with simply reading, listening or viewing works -- we want to appropriate material from other works and make something that is more than the sum of its parts. This is a pretty obvious point, and it's also obvious that unyielding copyright law limits freedom of expression for all of us. What's less obvious is that there are also other ways of limiting our ability to quote, cutup and recontextualize.

In order to be an active reader/listener/spectator, we need access to materials. Yet aside from current pop culture stuff widely available in American superstores, such access is currently quite difficult. One reason for the popularity of peer-to-peer technologies was the sheer diversity of music and sound that they've made available. Much of this audio was hitherto inaccessible, locked in record company vaults, private collections, archives and radio station libraries. In this sense the stuff that's online and available via p2p functions as a virtual archive that's totally available to all.

Quite the opposite is true in other media. Our history and culture are increasingly becoming private property rather than public resource. For instance, consider still photography. Hundreds of millions of historical still images are now controlled by two large corporations, Getty Images and Corbis, who are actively competing for top market rank. Unfortunately, these collections are generally inaccessible without payment of substantial research and licensing fees. In other media, textual material, music and works of art are now owned or controlled by a dwindling number of rightsholders. It is now highly probable that most access to cultural and historical materials will follow the paradigm of "billable events," with few exceptions or discounts for nonprofit or public users. E-commerce, of course, makes it much easier for rights holders to charge for the experience of listening to or eyeballing content.

The function of not-for-profit entities like libraries, museums and archives is also changing. They no longer exist simply to offer reference or read-only access to their holdings. With the proliferation of authoring tools in all media and the vast increase in all modes of cultural production, many access requests now anticipate the reproduction of materials for reuse and public distribution, and this trend is running headlong into the limitations of copyright law. Although the Internet is dramatically increasing the population of creators and publishers, there is less preexisting content available for reuse.

The access problem exists for both copyrighted and non-copyrighted works. Many public domain works exist only in libraries, archives, or private collections, and their custodians charge for access. Though fees may pay for storage, preservation, cataloging, and the production of viewing copies, it ultimately defies common sense for public domain works not to be freely available to the public. If we act to lessen or to end copyright's authoritarian control over access to culture, we must make sure that other controls don't take its place.

Guaranteeing Access Through Preserves and Conservancies

One transitional means for making content and culture more readily available may be the "intellectual property conservancy" or "IP preserve." To think about strengthening public access to cultural resources is to consider basic questions of property and its privatization. It's worth looking to history and landscape for precedents and a possible solution. In the late 19th and early 20th centuries, private corporations exerted unprecedented pressures on the "public domain" -- American land and natural resources. They owned or controlled key tracts of productive land, often as a result of government give aways or favoritism. The aggressive pursuit of extractive interests such as mining, logging and agriculture threatened to exhaust public lands and encroach upon naturally or culturally significant sites. In response to this threat, the conservationist movement lobbied to organize a system of national forests, parks and monuments. By preserving a limited public sphere not subject to the exercise of private property rights, the benefits of some wilderness and cultural sites were preserved for all.

In much the same way, an intellectual property preserve might house content and protect it as public property. The preserve would contain textual material, still and moving images, works of art, sounds and digital information of all kinds, plus the rights to reproduce and disseminate them. These assets would be acquired in two ways. First, the preserve (supported by private or government funding) would purchase certain key resources to build up a core collection of content. Second, the preserve would solicit donations of content. These donations might not necessarily include the physical materials representing the content, but would definitely include copyrights or rights to reproduce.

Why would copyright owners (or owners of public domain materials) ever cede their properties to the preserve? First, and perhaps most important, tax incentives. Amend the tax code to allow substantial deductions or tax credits for donating valuable copyrights or materials. Second, following the precedent of public land acquisitions, key donors might be compensated with private funding. Third, promote public recognition that an act of donation is a prestigious deed benefitting the world cultural heritage. Active efforts to create such organizations are now underway. One, called Creative Commons, has been announced and plans to open in the first half of 2002.

There is nothing particularly radical about the practice of a preserve. It's an attempt to work within the system, a voluntary expropriation, a creation of incentives for property holders to do the right thing. Ultimately, though, its goals are to rebalance private vs. common property for mass benefit. The preserve aims to make a significant portion of our intellectual and cultural property available to one and all -- both individuals and corporations -- for nothing more than the physical costs of duplication and transmission. Its concept supports freedom of inquiry and freedom of expression by preserving the right to quote, to duplicate, to appropriate preexisting material. Though it might require the support and expertise of elite elements to organize something like an intellectual property preserve, a preserve could mount a fundamental challenge to our definitions of public and private property. In so doing, it would be a greater force for change than any possible reform of copyright law.

Other Models

The open-source model is rooted in communitarianism and the hacker ethic. Though the details of open-source philosophy are beyond the scope of this essay (but easily available online), it points to a possible future where copyright owners might no longer assert a stranglehold over creativity and innovation. Open-source software, text, music, movies or any other kind of content are released under a license, sometimes known as the GPL (General Public License), permitting anyone to use, modify, distribute, or publish the content in original or modified form. The catch is that whatever anyone might add to the original material itself becomes open-source and available for free use in the same way. Rather than being compensated for simple ownership of copyright, people or companies in the open-source world are rewarded for the value they add. If a person adds significant functionality to a piece of program code, writes a good manual, corrals an unruly collection of software tools into a coherent package, people buy that and hopefully creators make money. Extending this model to other kinds of collaborative creative work, such as music and movies, opens up fascinating possibilities.

Then there's simply refusing to recognize the authority of copyright. In recent years anti-copyright artists and musicians have built a rich and entertaining tradition of appropriation, collage, uninhibited quotation, and sampling, much of which has coalesced as part of the Plunderphonics movement. Work of this kind is at once a harking-back to a much simpler world of hunting and gathering and a fast flash-forward to a smarter utopian society, where artists are free to quote and manipulate the stimuli that inspire them. While prominent challengers to corporate IP control like Napster get nailed, most individual artists fly under the horizon of corporate legal departments (or are sufficiently marginal to dodge cease-and-desist letters). Their work is refreshing and, from an anti-capitalist perspective, points the way towards a crisis of legitimacy for copyright, as it encourages individuals to disobey a law to which their conscience objects.

Libraries are one of the last remaining deeply democratic institutions in Western society, providing access to arts, culture and ideas to everyone. At their best, they stand for and actively support freedoms of speech and inquiry, and impose no property or income qualifications upon their patrons. As access institutions, they are unequalled. Their freedom to continue providing these resources to all for free (and even to preserve digital information for public access) is currently under attack by publishers and copyright holders who would like to make every access to their works into a "billable event," and we should defend their ability to continue doing what they have done for hundreds of years. In addition, libraries should be able to loan material as they have always done, but with the assistance of access technologies such as the Internet, so that they serve a worldwide community with a minimum of difficulty.

Another thought that has recently emerged recalls the idea of IP preserves. What if certain cultural resources were, by popular agreement, placed squarely within open territory? There has been discussion in Europe about placing historical moving images from the World War II period into the public domain , so that they will be free for use by all without the sense that anyone is profiting from their exploitation. Moving concretely in this direction, the German government-chartered foundation that controls the copyrights to films produced under the Third Reich has reportedly begun to forego charging license fees for reuse of clips from certain key Nazi propaganda films. Though this is certainly a reformist idea, it is easily scalable to encompass ever-increasing areas of content if there is pressure to make it happen.

Conclusion: Scenarios of the Intangible

To help frame possible tactics for freeing IP, let me propose three non-exclusive scenarios for the future of intellectual property. All already have come true, at least in part.

1. The dystopian scenario. The current content grab escalates. Greater territories of ideas and culture come under ever tighter corporate control. The distribution infrastructure itself comes under the control of copyright owners. The "model of scarcity" rules: every cultural microevent (reading, listening, watching, browsing online) becomes a billable event.

2. The diffuse scenario. This most closely describes where we are now. The dystopian scenario is well on the way, but there is still considerable "public space" for IP to circulate freely, largely because of an active culture of resistance to tighter and more centralized control. The coexistence of public and private spaces is uneasy, though, and highly stratified: content with "mass appeal," whatever its ultimate worth, is in general fully under private control and costs money to access. Since alternatives to the present public/private standoff are underdeveloped, many creators choose the default alternative of letting major corporations pretend to protect them.

3. The utopian scenario. This evolves out of both previous scenarios. Essentially, control over IP collapses under its own weight. People reject (or cannot afford) authoritarian and unwieldy systems that limit their access to arts, culture, and entertainment. Fringe cultures move to the mainstream as mass cultures become too expensive or too difficult to access. A "model of plenty" evolves: new means of rewarding creators emerge that do not necessarily require the intervention of corporations to exist.

Anti-capitalists seeking to free IP might think about how their tactics fit into each of these scenarios. Should we acknowledge today's diffuse situation, acting incrementally to increase and defend public territory within a mixed landscape of public and private IP control? Should we reject corporate control altogether, even though it might render us marginal for some time? Should we organize and build alternative structures for the exchange of IP, structures that might help us transition into a post-corporate era? Should we do all of these things?

Rick Prelinger (http://www.prelinger.com) is a film archivist and cultural historian. He is currently working on a book about the history and culture of radio monitoring and a film on menace and jeopardy in American culture.

RESOURCES

More detailed information on the issues mentioned in this essay can be found in the books listed below. Here also is a list of a few websites that offer frequently updated information on fast-breaking IP issues.

Chris DiBona, San Oakman and Mark Stone. Open Sources: Voices from the Open Source Revolution. Sebastopol, Calif.: O'Reilly & Associates, Inc. 1999.

Lawrence Lessig. The Future of Ideas: The Fate of the Commons in a Connected World. New York: Random House, 2001.

Jessica Litman. Digital Copyright. Amherst, N.Y.: Prometheus Books, 2001.

Kembrew MacLeod. Owning Culture: Authorship, Ownership and Intellectual Property Law. New York: Peter Lang Publishers, 2001. Kembrew MacLeod trademarked the phrase "freedom of expression" as a prank; more details at http://www.kembrew.com.

Center for the Public Domain, a nonprofit foundation supporting the growth of a healthy and robust public domain. http://www.centerforthepublicdomain.org

Copyright's Commons, a "coalition devoted to promoting a vibrant public domain." Good links. http://cyber.law.harvard.edu/cc/

Detritus.net, a great site devoted to recycled culture in all its manifestations. Worth visiting regularly. http://www.detritus.net

The Negativland site has an excellent IP resources section: http://www.negativland.com/intprop.html"