The Failure of Copyright

featured, writing

[First written for University Writing Progression II, and hereby released (with some editing) into the public domain.]

“[W]ith the birth of the Internet,” writes Lawrence Lessig, “[the] natural limit to the reach of the law has disappeared” (19). In Free Culture, Lessig asserts that American copyright law has grown so out of control that it no longer benefits the public. He begins by establishing a clear distinction between commercial culture and “free culture”: works produced to be sold are commercial; free culture, as Lessig defines it, is everything else. “Reenacting scenes from plays or TV, participating in fan clubs, sharing music, making tapes,” “old men […] on street corners telling stories to kids,”—all these are crucial elements of public discourse, and belong outside of commercial control (7-8). The problem with copyright, Lessig argues, is that it erodes the line between the commercial and noncommercial, turning once-free acts of sharing and retelling into copyright violations punishable by law.

In his essay “The Ecstasy of Influence,” Jonathan Lethem, like Lessig, examines the implications of an artistic heritage increasingly restrictive and commercialized. Lethem grapples with the issue from the creator’s perspective, discussing notions of ownership and influence primarily in artistic, rather than legal, terms. There’s only one catch—Lethem’s essay is itself completely plagiarized, a patchwork of arguments and anecdotes adapted or copied wholesale from other authors. The work is a literal demonstration of its own thesis: all creative work is, in some sense, derivative, and Lessig’s “free culture” is a necessary foundation for the creation of all art. By removing created works from the commons the available raw material is diminished, and the entire culture suffers.

[As is no doubt already obvious, the structure of this essay is a bit contrived. We were asked, in the assignment on which this piece is based, to explore a “conversation” between two authors, without reference to outside sources. Can you guess what we were instructed to do with the first two paragraphs of the essay? The debate over the future of American copyright law is expansive and complicated, and it is impossible to capture all of its subtleties in an essay limited to a discussion of two writers (and perhaps more problematically, one limited to 2000 words in length). Nevertheless, Lessig and Lethem's arguments are illustrative of several of the broad themes in this debate, and if they cannot explain it completely, I hope that they will at least illuminate some of the problems with the current system.]

It is impossible to discuss copyright today without discussing the Internet; indeed, changing copyright law has always been driven by changes in publication technology. When copyright was first written into the American Constitution, there was no need for publishers to worry about noncommercial duplication: the cost of operating a printing press made necessarily made any financially threatening duplication commercial in nature. But with photographs, phonographs, video cassettes, and most recently Internet, the act of copying has become easier and easier. Computers at first seemed to promise  an alternative to litigation as a means of securing intellectual property, and recent years have seen a proliferation of draconian software mechanisms designed to make copyrighted material impossible to distribute electronically. These software locks have proven, at best, to be marginally effective, and copyright holders have returned to the law, pushing for an increasingly restrictive copyright to guarantee the continuing success of the current business model.

Such tactics are not without their casualties. Lessig gives examples of students sued for billions (51) for creating software never intended to copy files at all; Lethem cites the case of a scholar prohibited from using any Disney-related images in a scholarly piece about Mickey Mouse (65). Stories like these abound. “The distinctive feature of modern American copyright law,” Lethem writes, “is its almost limitless bloating—its expansion in both scope and duration” (63) Both authors offer countless more examples of innocent consumers and well-meaning artists brought down in the name of intellectual property, and in the end make it clear that something is deeply wrong with the current model. But perhaps out of a fear of being deemed radical—Lethem is quick to assure his reader that he is not a Communist (65)—or even criminal—every time file sharing is discussed Lessig appears compelled to remind his readers again that “piracy is wrong” (63)—both authors acknowledge the failure of copyright but fail to fully explore its consequences. Although Lessig envisions a future in which the commercial culture swallows the free one completely, he concludes his book with a ringing endorsement of intellectual property law; Lethem, in turn, asserts that modern society cannot flourish without some notion of intellectual property.

What they ultimately advocate is instead a “thin copyright,” with a shorter term and more limited scope. Such a copyright, they argue, would give copyright holders “just enough” protection while allowing other artists “just enough” freedom to create derivative works. They speak, in extremely general terms, about some scope and duration under which all works which should “reasonably” be copyrighted are guaranteed protection and all “reasonable” public uses permitted. But as Lessig himself notes, the Internet destroys any notion of a “natural limit” on copyright law (19). Thin copyright will never be a solution, because the ideal copyright scheme that both Lethem and Lessig speculate about simply does not and cannot exist. The recent rash of litigation, if unfair, is not without cause—Lessig’s vanishing line between free and commercial culture works both ways. Because ordinary users can carry out noncommercial copying on a scale never before contemplated by the law, copyright owners must fear the individual just as much as the individual must fear the copyright owner.

This arms race between technology and copyright protection, as noted, has been a continued feature of the American copyright debate; what is new is that technology has effectively reached the point where users may make an infinite number of copies at no cost. It is relatively straightforward to count how many copies of a book have been published; considerably less so in the case of electronic documents. Our entire infrastructure relies on our ability to replicate various aspects of files elsewhere. Search engines store summaries of every website they search. Web browsers download from servers a copy of the web page being viewed; these copies remain on individual computers for weeks or even months at a time. Sending an email does not actually move it from one place to another; rather, one copy remains on the sender’s computer while another copy is sent to a mail server, which passes yet another copy to each recipient of the message: three copies, at a minimum. Thanks to modern technology, any electronic document, after being backed up, cached, reformatted, encrypted and emailed, will exist as an uncountable number of copies distributed in countless formats across countless computers, almost all without the consent or even knowledge of the author. Our technology requires this. There is no “natural limit” on the law because any limit inevitably restricts further progress.

In fact, copyright law already forbids many of the aforementioned cases. Every Google search, every website visited and every email forwarded creates copies; all computer technology relies on the fact that every day billions, perhaps tens of billions of copyright infringements go unprosecuted. Lethem writes that “Even as the law becomes more restrictive, technology is exposing those restrictions as bizzare and arbitrary” (63)—we have established, with the concept of intellectual property, a legal framework completely at odds with our most important technology. We can never design a copyright for the Internet age, because is not just impractical, but impossible, to prevent the copying of digital information.

There is only one way out of this conflict. Rather than fighting against the inevitable, we should embrace it; rather than struggling endlessly to enforce it, we must abandon copyright altogether. There is no other way to preserve Lessig’s Creative Commons or guarantee Lethem his “ecstasy of influence.” Without copyright we will never risk punishing consumers for participating in the free culture. Without copyright, the impossible struggle to find a “natural limit” of the law, and all the conflict between technology and copyright, simply melt away. So copyright must go. This is the only conclusion which may be reasonably drawn from either text; the only solution, ultimately, that our technology will ever permit.

But what, then, about the rights of artists? Wouldn’t an abandonment of copyright violate their right to profit from their ideas? Both Lessig and Lethem insist that the only purpose of any intellectual property law is to ensure the continued production of creative works for the benefit of the general public. Lethem quotes the Constitution: “The primary objective of copyright is not to reward the labor of authors but ‘to promote the Progress of Science and useful Arts’ ” (68). The law never had any obligations to artists. In a culture still largely taken with a Romantic image of the Author as creator of beauty and meaning out of the void, and in a society constantly bombarded with the recording industry’s stories of starving artists driven to tragic ends by acts of piracy, this is a difficult concept to comprehend. But there is no reason, intrinsically, that works should be given their current level of protection; no historical precedent that says every single person who appreciates a work should pay its author for that right. In its original conception, even copyright was never meant to protect creators.

An artist could be forgiven for feeling outrage at the suggestion that she should not be paid for her work—why would people produce anything if they could not be guaranteed compensation or even credit for it? Why should we insist that our artists starve? Such a mindset is ultimately short-sighted. Our writers and musicians need not be condemned to poverty; indeed, the fact that we insist that artists be paid by each individual consumer of their work is simply because copyright law cannot envision any other motivation to create. But such motivation clearly exists. We have seen, historically and at present, that there are other ways of convincing people to produce. A complete description of how economies outside the realm of copyright function is beyond the scope of this essay, but it’s worth considering a few examples:

Large parts of the software industry, among them Swedish database distributor MySQL and Linux provider Red Hat profit from giving their product to consumers at no charge and then selling technical support. In China, Google’s music store distributes songs for free and shares advertising revenue with record labels. Author Cory Doctorow released the full contents of his first novel online (protected, incidentally, by Lessig’s Creative Commons license) because he understood that it would drive up sales of the book in stores. It has become common for authors of free software to set up PayPal “tip jars” where appreciative users can make donations, and the jars often fill up with surprising speed. Bands Radiohead and Nine Inch Nails, likewise, have released albums for free in their entirety and allowed listeners to pay what they deemed appropriate; in Radiohead’s case, it proved their most profitable release ever. (This, it should be noted, is hardly a new system: patrons have supported museums and opera houses for centuries on a similar model.) Artists and businessmen alike make money selling paper copies, live performances, advertising—what is evident that there are many ways of making money without depriving consumers of the freedom to enjoy works unrestricted.

Lethem gives us a name for these exchanges: “gift economies.” “Art that matters to us,” he writes, “is recieved as a gift is received” (66). Such exchanges are necessarily unequal, even when money is involved, because the value given is “uncommodifiable.” Lethem’s point is that such economies can and do coexist with commercial interactions (he gives the example of a visit to an art gallery); what he misses is that commerce need not even be visible to the consumer for gift-giving to be profitable. And in the end, a gift economy among published works might, like volunteer-only blood banks, result in creations of greater “purity and potency” (Lethem 66) than those produced by our market-driven culture.

Lessig envisions a future in which “Digital technologies, tied to the Internet, could produce a vastly more competitive and vibrant market for building and creating and cultivating culture” (9), and Lethem’s essay might be read as an artifact from such a future. Once we remove the protections of copyright, once we escape from Lethem’s “anxiety of influence,” we give license to perpetrate plagiarisms like his on a grand scale. The best pieces of our culture, recombined and reimagined: we are promised an almost inconceivable intellectual freedom, the right to use not just the works of long-dead authors but the entirety of our own culture. In Lethem’s gift economy, both production and consumption transcend commercial concerns and the free exchange of ideas is not seen as piracy but rather an act of supreme generosity. This is the promise of a culture without copyright, one in which everyone has unqualified access to the greatest works, and in which everyone, ultimately, profits.

References
[1] Lessig, Lawrence. Free Culture. New York: The Penguin Press, 2004. Available <http://www.free-culture.cc>.
[2] Lethem, Jonathan. “The Ecstasy of Influence.” Harper’s Magazine February 2007: 59-71.