Viral Spiral - How the Commoners Built a Digital Republic of Their Own
David Bollier (2008)

PART I

Harbingers of the Sharing Economy

2 THE DISCOVERY OF THE PUBLIC DOMAIN

How a band of irregulars demonstrated that the public domain is enormously valuable after all.

For decades, the public domain was regarded as something of a wasteland, a place where old books, faded posters, loopy music from the early twentieth century, and boring government reports go to die. It was a dump on the outskirts of respectable culture. If anything in the public domain had any value, someone would sell it for money. Or so goes the customary conception of the public domain.

Jack Valenti, the longtime head of the Motion Picture Association of America, once put it this way: “A public domain work is an orphan. No one is responsible for its life. But everyone exploits its use, until that time certain when it becomes soiled and haggard, barren of its previous virtues. Who, then, will invest the funds to renovate and nourish its future life when no one owns it?” 45 (Valenti was arguing that longer copyright terms would give film studios the incentive to digitize old celluloid films that would otherwise enter the public domain and physically disintegrate.)

One of the great, unexplained mysteries of copyright law is how a raffish beggar grew up to be King Midas. How did a virtually ignored realm of culture — little studied and undertheorized— become a subject of intense scholarly interest and great practical importance to commoners and businesses alike? How did the actual value of the public domain become known? The idea that the public domain might be valuable in its own right — and therefore be worth protecting — was a fringe idea in the 1990s and before. So how did a transformation of legal and cultural meaning occur?

Unlike Richard Stallman’s crusade to create a sustainable public domain of code,~[* Free software constitutes a “sustainable public domain” because the General Public License protects the code and its derivatives from private appropriation yet otherwise makes the code free for anyone to use. The public domain, by contrast, is vulnerable to private appropriation in practice if a company has sufficient market power (e.g., Disney’s appropriation of fairy tales) or if it uses the public domain to make derivative works and then copyrights them (e.g., vendors who mix government data with proprietary enhancements).]~ the discovery of the public domain for cultural works was not led by a single protagonist or group. It emerged over time through a loose network of legal scholars, techies, activists, and some businesses, who were increasingly concerned about worrisome expansions of copyright and patent law. Slowly, a conversation that was occurring in a variety of academic and tech communities began to intensify, and then coalesce into a more coherent story.

Scholarship about copyright law is not exactly gripping stuff. But it has played an important role in the viral spiral. Before anyone could begin to imagine how an online commons could be structured and protected, someone needed to explain how intellectual property law had become “uncontrolled to the point of recklessness” — as law professor David Lange put it in 1981, well before the proprietarian explosion of the late 1980s and 1990s.

Fortunately, a new breed of public-spirited professors was reaching a critical mass just as the Internet was becoming culturally important. These professors, collaborating with programmers and activists, were among the first to understand the ways in which copyright law, historically an arcane backwater of law, was starting to pose serious threats to democracy-loving citizens and Internet users. The full complexity of this legal literature over the past generation cannot be unpacked here, but it is important to understand how progressive copyright scholarship played a critical role in identifying dangerous trends in law and technology — and in constructing a new narrative for what copyright law should be.

This legal scholarship reconceptualized the public domain— then a vague notion of nonproperty — and developed it into an affirmative theory. It gave the public domain sharper definition and empirical grounding. Thinkers like Yochai Benkler (Harvard Law School), Lawrence Lessig (Stanford Law), and James Boyle (Duke Law) developed bracing new theories that recognize the power of social communities, and not just the individual, in the creative process. Others, such as Julie Cohen (Georgetown Law Center) and Pamela Samuelson (Boalt Hall), have respectively explored the need to develop a new social theory of creative practice 46 and the theoretical challenges of “mapping” the public domain. 47 All of this thinking, mostly confined to scholarly workshops, law reviews, and tech journals, served as a vital platform for imagining the commons in general and the Creative Commons in particular.

The Elusive Quest for “Balance”

Historically, copyright has been regarded as a “bargain” between the public and authors. The public gives authors a set of monopoly rights to help them sell their works and earn rewards for their hard work. In return, the public gets the marketable output of creators— books, films, music — and certain rights of free access and use. The primary justification of copyright law is not to protect the fortunes of authors; it is to promote new creative works and innovation. By giving authors a property right in their works — and so helping them to sell those works in the marketplace — copyright law aims to promote the “progress of human knowledge.”

That’s the author’s side of the bargain. The public’s stake is to have certain limited rights to use copyrighted works. Under the “fair use” doctrine (or “fair dealing” in some countries), people are entitled to excerpt copyrighted works for noncommercial purposes such as journalism, scholarship, reviews, and personal use. People are also entitled to resell the physical copies of copyrighted works such as books and videos. (This right is granted under the “first sale doctrine,” which enables libraries and DVD rental stores to exist.) The public also has the right to use copyrighted works for free after the term of a copyright has expired — that is, after a work has “entered the public domain.” This general scheme is said to establish a balance in copyright law between the private rights of authors and the needs of the public and future authors.

This “balance” has been more rhetorical than real, however. For decades, critics have complained that the public’s side of the copyright bargain is being abridged. Content industries have steadily expanded their rights under copyright law at the expense of the public’s modest access rights.

What is notable about the long history of seeking “balance” in copyright law is the singular failure of critics to make much headway (until recently) in redressing the problem. The public’s interests in copyright law — and those of authors’ — have never been given that much attention or respect. From the authors of eighteenth-century England, whose formal rights were in practice controlled by booksellers, to the rhythm-and-blues singers of the 1940s whose music was exploited for a pittance by record labels, to academics whose copyrights must often be ceded to commercial journals, authors have generally gotten the short end of the stick. No surprise here. Business practices and copyright policy have usually been crafted by the wealthiest, most politically connected players: book publishers, film studios, record labels, broadcasters, cable operators, news organizations. The public’s lack of organized political power was reflected in its lack of a coherent language for even describing its own interests in copyright law.

For most of the twentieth century, the forging of copyright law was essentially an insider contest among various copyright-dependent industries for market advantage. Congress hosted a process to oversee the squabbling and negotiation, and nudged the players now and again. This is what happened in the fifteen-year run-up to congressional enactment of the Copyright Act of 1976, for example. For the most part, Congress has preferred to ratify the compromises that industry players hammer out among themselves. The unorganized public has been treated as an ignorant bystander.

Naturally, this has strengthened the hand of commercial interests. Copyright disputes could be argued within a congenial intellectual framework and closely managed by a priesthood of lawyer-experts, industry lobbyists, and friendly politicians. The interests of citizens and consumers, blessedly absent from most debates, could be safely bracketed as marginal.

But letting industries negotiate their own solutions has its own problems, as Professor Jessica Litman has pointed out: “Each time we rely on current stakeholders to agree on a statutory scheme, they produce a scheme designed to protect themselves against the rest of us. Its rigidity leads to its breakdown; the statute’s drafters have incorporated too few general principles to guide courts in effecting repairs.” 48 By letting the affected industries negotiate a series of fact specific solutions, each reflecting that moment in history, Congress has in effect let copyright law become an agglomeration of complex and irregular political compromises — or, as some might say, a philosophically incoherent mess.

Perhaps because it is so attentive to its industry benefactors, Congress has generally regarded the fair use doctrine and the public domain as a sideshow. Under the Copyright Act of 1976, for example, fair use is set forth only as an affirmative defense to accusations of copyright infringement, not as an affirmative right. Moreover, fair use is defined by four general statutory guidelines, which courts have proceeded to interpret in wildly inconsistent ways. In real life, Lawrence Lessig has quipped, fair use amounts to “the right to hire a lawyer.”

Congress has shown a similarly low regard for the public domain. After extending the term of copyright law eleven times since 1961, the copyright monopoly now lasts for an author’s lifetime plus seventy years (ninety-five years for corporations). For Congress, writes Professor Tyler Ochoa, “allowing works to enter the public domain was something to be condemned, or at least only grudgingly tolerated, rather than something to be celebrated.” 49 Congress’s most hostile act toward the public domain — and to the public’s rights of access — was the elimination of the registration requirement for copyright protection. 50 Since 1978, copyright holders have not had to formally register their works in order to receive protection. Doodle on a scratch pad, record your guitar strumming, and it’s automatically copyrighted.

Sounds great . . . but this provision had especially nasty consequences once the digital revolution kicked into high gear in the 1990s, because every digital byte was born, by default, as a form of property. Automatic copyright protection dramatically reversed the previous default, where most everything was born in the public domain and was free to use unless registered. Today, anyone wishing to reuse a work legally has to get permission and possibly pay a fee. To make matters worse, since there is no longer a central registry of who owns what copyrighted works, it is often impossible to locate the copyright holder. Such books, films, and images are known as “orphan works.”

Thirty years ago, the idea of throwing a net of copyright over all information and culture was not alarming in the least. As Jessica Litman recalled, “When I started teaching in 1984, we were at what was about to be the crest of a high-protectionist wave. That is, if you looked at the scholarship being written then, people were writing about how we should expand copyright protection, not only to cover useful articles and fashions and semiconductor chips and computer programs, but also recombinant DNA. The Chicago School of scholarship was beginning to be quite influential. People were reconceiving copyright in Chicago Law and Economics terms, and things like fair use were seen to be ‘free riding.’ ” 51

Yet the effects of this protectionist surge, at least for the short term, were muted for a number of reasons. First, corporate lobbying on copyright issues was extremely low-key. “I started going to congressional hearings in 1986,” said Litman, “and no one was there. There were no members of Congress; there was no press. The witnesses would come and they’d talk, and staffers would take notes. And that would be it.” 52 The big-ticket lobbying — receptions, slick reports, legislative junkets, private movie screenings with Jack Valenti — did not really begin to kick in until the late 1980s and early 1990s, when trade associations for every conceivable faction stepped up their Washington advocacy. When the Internet’s commercial implications became clear in the mid-1990s, copyright-dependent industries ratcheted up their campaign contributions and lobbying to another level entirely.

The protectionist surge in copyright law in the 1980s was mitigated by two stalwart public servants: Representative Robert Kastenmeier of Wisconsin, the chair of the House judiciary subcommittee that oversaw copyright legislation, and Dorothy Schrader, the longtime general counsel of the U.S. Copyright Office. Both considered it their job to protect the public from grasping copyright industries. When Kastenmeier lost his reelection bid in 1990 and Schrader retired in 1994, the film, music, broadcast, cable, and publishing industries would henceforth have staunch allies— sometimes their former lawyer-lobbyists — in key congressional staff positions and copyright policy jobs. Government officials no longer saw their jobs as protecting consumers from overbearing, revenuehungry media industries, but as helping copyright owners chase down and prosecute “pirates.” Copyright law was recast as a form of industrial policy — a way to retain American jobs and improve the U.S. balance of trade — not as an instrument that affects social equity, consumer rights, and democratic values.

Ironically, the mercantilist view of copyright was gaining ground at precisely the time when the public’s stake in copyright law was growing. An explosion of consumer electronics in the 1980s was giving the public new reasons to care about their fair use rights and the public domain. The introduction of the videocassette recorder, the proliferation of cable television, personal computers, software and electronics devices, and then the introduction of the Web in 1993 all invited people to control their own creative and cultural lives. The new media meant that the baroque encrustations of copyright law that had accumulated over decades were now starting to interfere with people’s daily activities.

Yet rather than negotiate a new copyright bargain to take account of the public’s needs and interests, copyright industries stepped up their demands on Congress to ram through even stronger copyright, trademark, and patent privileges for themselves. Their basic goal was, and generally remains, a more perfect control over all downstream uses of works. Content industries generally do not concede that there is any presumptive “free use zone” of culture, notwithstanding the existence of the fair use doctrine. Works that citizens may regard as fair-use entitlements industry often regards as chunks of information that no one has yet figured out how to turn into marketable property.

Most content industries, then and now, do not see any “imbalance” in copyright law; they prefer to talk in different terms entirely. They liken copyrighted works to personal property or real estate, as in “and you wouldn’t steal a CD or use my house without permission, would you?” A copyrighted work is analogized to a finite physical object, But the essential point about works in the digital age is that they can’t be “used up” in the same way that physical objects can. They are “nondepletable” and “nonrival,” as economists put it. A digital work can be reproduced and shared for virtually nothing, without depriving another person of it.

Nonetheless, a new narrative was being launched — copyrighted works as property. The idea of copyright law reflecting a policy bargain between the public and authors/corporations was being supplanted by a new story that casts copyright as property that is nearly absolute in scope and virtually perpetual in term. In hindsight, for those scholars who cared enough to see, a disquieting number of federal court cases were strengthening the hand of copyright holders at the expense of the public. James Boyle, in a much-cited essay, called this the “second enclosure movement” — the first one, of course, being the English enclosure movement of common lands in medieval times and into the nineteenth century. 53

Enclosure took many forms. Copyright scholar Peter Jaszi recalls, “Sometime in the mid-1980s, the professoriate started getting worried about software copyright.” 54 It feared that copyrights for software would squelch competition and prevent others from using existing code to innovate. This battle was lost, however. Several years later, the battle entered round two as copyright scholars and programmers sought to protect reverse-engineering as fair use. This time, they won. 55

Then, in 1985, the U.S. Supreme Court ruled that it was not fair use for the Nation magazine to excerpt three hundred words from President Ford’s 200,000-word memoir. The Nation had acquired a copy of Ford’s book before its publication and published an article of highlights, including a handful of quotations. The material, derived from Ford’s official duties as president, was of obvious value to the democratic process. But by a 6-3 margin the Court held that the Nation had violated Ford’s copyright. 56 The proprietary tilt of copyright law only intensified in the following years. Companies claimed copyrights for all sorts of dubious forms of “originality” — the page numbers of federal court decisions, the names and numbers in telephone directories, and facts compiled in databases.

The Great Expansion of Intellectual Property

These expansions of proprietary control in the 1980s proved to be a prelude to much more aggressive expansions of copyright, patent, and trademark law in the 1990s. Congress and the courts were granting property rights to all sorts of things that had previously been considered unowned or unownable. The Supreme Court had opened this door in 1980 when it recognized the patentability of a genetically modified bacterium. This led to ethically and economically dubious patents for genes and life-forms. Then businesses began to win patents for “business methods” — ideas and theoretical systems — that would otherwise be in the public domain. Mathematical algorithms, if embedded in software, could now be owned. Amazon.com’s patent on “one-click shopping” on its Web site became the symbol of this trend. Boat manufacturers won a special sui generis (“in a class by itself ”) form of protection for the design of boat hulls in 1998. Celebrities and talent agencies prevailed upon state legislatures to extend the scope of ownership of celebrity names and likenesses, which had long been considered in the public domain.

Companies developed still other strategies to assert greater proprietary control over works. Software companies began to rely upon mass-market licenses — often referred to as “shrink wrap” contracts and “click-through” Web agreements — to expand their rights at the expense of consumers and the public domain. Various computer companies sought to enact a model state law that, in Samuelson’s words, would “give themselves more rights than intellectual property law would do and avoid the burdens of public interest limitations.” 57 Consumers could in effect be forced to surrender their fair use rights, the right to criticize the product or their right to sue, because of a “contract” they ostensibly agreed to.

Trademarks, originally designed to help people identify brands and prevent fraud in the marketplace, acquired a new power in 1995 — the ability to control public meanings. For years, large corporations had wanted to extend the scope of their trademark protection to include “dilution” — a fuzzy concept that would prohibit the use of a trademark without permission, even for legitimate public commentary or parody, if it “dilutes” the recognized public associations and meanings of a trademark. For a decade or more, Kastenmeier had prevented antidilution legislation from moving forward. After Kastenmeier left Congress, the trademark lobby succeeded in getting Congress to enact the legislation. This made it much easier for Mattel to threaten people who did parodies of Barbie dolls. The Village Voice could more credibly threaten the Cape Cod Voice for trademark infringement. Wal-Mart could prevent others from using “its” smiley-face logo (itself taken from the cultural commons). 58

The election of Bill Clinton as president in 1992 gave content industries new opportunities to expand their copyright privileges. The Clinton administration launched a major policy effort to build what it called the National Information Infrastructure (NII), more commonly known as the Information Superhighway. Today, of course, we call it the Internet. A task force of industry heavyweights was convened to determine what policies should be adopted to help build the NII. 59 Vice President Al Gore cast himself as a visionary futurist and laid out astonishing scenarios for what the NII could deliver: access to every book in the Library of Congress, the ability of doctors to share medical information online, new strides against inequality as everyone goes online.

The NII project was a classic case of incumbent industries trying to protect their profit centers. Executives and lobbyists associated with broadcasting, film, and music were being asked how to structure the Information Superhighway. Predictably, they came up with fantasies of digital television with five hundred channels, programs to sell products, and self-serving scenarios of even stronger copyright protection and penalties. Few had any inkling of the transformative power of open networks or the power of the sharing economy — and if they did, the possibilities certainly were not appealing to them.

One part of the NII campaign was a working group on intellectual property headed by Bruce Lehman, a former congressional staffer, lobbyist for the software industry, and commissioner of patents and trademarks. The Lehman panel spent two years developing a sweeping set of copyright policies for the Information Superhighway. When the panel’s report was released in September 1995, anyone who cared about open culture and democracy was livid. The White Paper, as it was called, recommended a virtual elimination of fair use rights in digital content and broader rights over any copyrighted transmissions. It called for the elimination of first-sale rights for digitally transmitted documents (which would prevent the sharing of digital files) and endorsed digital rights management systems for digital works (in order to monitor and prosecute illegal sharing). The White Paper even sought to reinterpret existing law so that transient copies in the random-access memory of computers would be considered illegal unless they had a license — essentially outlawing Web browsing without a license. With visions of Soviet-style indoctrination, the document also recommended an ambitious public education program to teach Americans to properly respect copyright laws.

Litman wrote a revealing history of the misbegotten NII project in her book Digital Copyright. Her chapter title “Copyright Lawyers Set Out to Colonize Cyberspace” says it all. 60 Samuelson alerted the readers of Wired about the outrageous proposals of the White Paper in her devastating January 1996 article “The Copyright Grab.” 61 If the NII proposals are enacted, warned Samuelson, “your traditional user rights to browse, share or make private noncommercial copies of copyrighted works will be rescinded. Not only that, your online service provider will be forced to snoop through your files, ready to cut you off and turn you in if it finds any unlicensed material there. The White Paper regards digital technology as so threatening to the future of the publishing industry that the public must be stripped of all the rights copyright law has long recognized — including the rights of privacy. Vice President Al Gore has promised that the National Information Infrastructure will dramatically enhance public access to information; now we find out that it will be available only on a pay-per-use basis.” 62

The White Paper was not just an effort by Old Media to domesticate or eliminate the freedoms emerging on the Information Superhighway; it sought to set the stage for the internationalization of strict copyright norms, so that American-style copyright law would prevail around the world. To counter this effort, American University law professor Peter Jaszi convened a group of law professors, library organizations, and computer and consumer electronics makers, who promptly organized themselves as the Digital Future Coalition (DFC), the first broad-based coalition in support of the public’s stake in copyright law.

The DFC attacked the White Paper as a copyright-maximalist nightmare and sought to rally civil liberties groups, Internet service providers, and electronics manufacturers. With modest industry support, the DFC was largely responsible for slowing progress on legislation that would have enacted Lehman’s proposals. As domestic opposition grew, Lehman shrewdly decided to push for a new global copyright treaty that would embody similar principles. In the end, however, the World Intellectual Property Organization demurred.

By that time, however, the terms of debate had been set, and there was serious congressional momentum to adopt some variant of the White Paper agenda. The ultimate result, enacted in October 1998, was the Digital Millennium Copyright Act (DMCA), the crowning achievement of the copyright-maximalist decade. It contained dozens of highly specific provisos and qualifications to satisfy every special pleader. The law in effect authorized companies to eliminate the public’s fair use rights in digital content by putting a “digital lock” around the content, however weak. Circumventing the lock, providing the software to do so, or even telling someone how to do so became a criminal offense.

The DMCA has been roundly denounced by software programmers, music fans, and Internet users for prohibiting them from making personal copies, fair use excerpts, and doing reverse engineering on software, even with legally purchased products. Using digital rights management systems sanctioned by the DMCA, for example, many CDs and DVDs are now coded with geographic codes that prevent consumers from operating them on devices on other continents. DVDs may contain code to prevent them from running on Linux-based computers. Digital journals may “expire” after a given period of time, wiping out library holdings unless another payment is made. Digital textbooks may go blank at the end of the school year, preventing their reuse or resale.

Critics also argue that the DMCA gives large corporations a powerful legal tool to thwart competition and interoperability. Some companies programmed garage door openers and printer cartridges so that the systems would not accept generic replacements (until a federal court found this behavior anticompetitive). Naturally, this sort of behavior, which the DMCA facilitates, lets companies avoid open competition on open platforms with smaller companies and entrepreneurs. It also gives companies a legal pretext for bullying Web site owners into taking down copyrighted materials that may in fact be legal to use.

In her excellent history of the political run-up to the DMCA, Litman notes, “There is no overarching vision of the public interest animating the Digital Millennium Copyright Act. None. Instead, what we have is what a variety of different private parties were able to extract from each other in the course of an incredibly complicated four-year multiparty negotiation.” 63 The DMCA represents a new frontier of proprietarian control — the sanctioning of technological locks that can unilaterally override the copyright bargain. Companies asked themselves, Why rely on copyrights alone when technology can embed even stricter controls into the very design of products?

The year 1998 was an especially bad year for the public domain. Besides enacting the trademark dilution bill and DMCA, the Walt Disney Company and other large media corporations succeeded in their six-year campaign to enact the Sonny Bono Copyright Term Extension Act. 64 The legislation, named after the late House legislator and former husband of the singer Cher, retroactively extended the terms of existing copyrights by twenty years. As we will see in chapter 3, this law became the improbable catalyst for a new commons movement.

Confronting the Proprietarian Juggernaut

If there was ever a need for independent scholarship on copyright law and activism to challenge the new excesses, this was such a time. Fred von Lohmann, senior staff attorney for the Electronic Frontier Foundation in San Francisco, recalls, “Peggy Radin taught the first cyber-law class at Stanford Law School in 1995, and I was her research assistant. And at the end of that semester, I had read everything that had ever been written about the intersection of the Internet and the law — not just in the legal literature, but in almost all the literature. It filled about two boxes, and that was it. That was all there was.” 65

In about a dozen years, those two boxes of literature have grown into many shelves and countless filing cabinets of case law and commentary. Much of the legal scholarship was the fruit of a new generation of copyright professors who rose to the challenge of the time. An earlier generation of copyright scholars — Melville Nimmer, Alan Latman, Paul Goldstein — were highly respected titans, but they also enjoyed busy consulting practices with the various creative industries that they wrote about. Protecting the public domain was not their foremost concern.

By the 1980s, as law schools become more like graduate schools and less like professional schools, copyright commentary began to get more scholarly and independent of the industries it studied. People like Pamela Samuelson, Peter Jaszi, Jerome H. Reichman, Jessica Litman, L. Ray Patterson, and Wendy Gordon were among this cohort, who were soon joined in the 1990s by a new wave of thinkers such as James Boyle, Lawrence Lessig, Julie Cohen, Niva Elkin-Koren, and Yochai Benkler. Still others, such as Rosemary Coombe and Keith Aoki, approached copyright issues from cross-cultural and globalization perspectives. These scholars were frankly hostile to the large copyright industries, and greatly concerned with how the law was harming democracy, science, culture, and consumers.

A number of activist voices were also coming forward at this time to challenge the proprietarian juggernaut. As the Internet became a popular medium, ordinary people began to realize that the new copyright laws were curtailing their creative freedoms and free speech rights. The obscure complexities of copyright law started to become a far more public and political issue. The pioneering activist organization was the Electronic Frontier Foundation. EFF was founded in 1990 by tech entrepreneur Mitch Kapor, the famed inventor of the Lotus 1-2-3 spreadsheet in the 1980s; John Perry Barlow, Grateful Dead lyricist and hacker; and John Gilmore, a leading privacy/cryptography activist and free software entrepreneur.

The organization was oriented to hackers and cyberlibertarians, who increasingly realized that they needed an organized presence to defend citizen freedoms in cyberspace. (Barlow adapted the term cyberspace from science-fiction writer William Gibson in 1990 and applied it to the then-unnamed cultural life on the Internet.) Initially, the EFF was concerned with hacker freedom, individual privacy, and Internet censorship. It later went through some growing pains as it moved offices, changed directors, and sought to develop a strategic focus for its advocacy and litigation. In more recent years, EFF, now based in San Francisco, has become the leading litigator of copyright, trademark, and Internet free expression issues. It also has more than ten thousand members and spirited outreach programs to the press and public.

John Perry Barlow was an important visionary and populizer of the time. His March 1994 article “The Economy of Ideas” is one of the most prophetic yet accessible accounts of how the Internet was changing the economics of information. He astutely realized that information is not a “product” like most physical property, but rather a social experience or form of life unto itself. “Information is a verb, not a noun,” he wrote. “Freed of its containers, information obviously is not a thing. In fact, it is something that happens in the field of interaction between minds or objects or other pieces of information. . . . Sharks are said to die of suffocation if they stop swimming, and the same is nearly true of information.” 66

Instead of the sober polemics of law professors, Barlow — a retired Wyoming cattle rancher who improbably doubled as a tech intellectual and rock hipster — spiced his analysis of information with colorful metaphors and poetic aphorisms. Comparing information to DNA helices, Barlow wrote, “Information replicates into the cracks of possibility, always seeking new opportunities for Lebensraum.” Digital information, he said, “is a continuing process more like the metaphorphosing tales of prehistory than anything that will fit in shrink-wrap.”

Since hyperbole is an occupational reflex among cyberjournalists, Barlow’s Wired piece bore the obligatory subtitle, “Everything you know about intellectual property is wrong.” Yet reading Barlow more than a decade later confirms that, posturing aside, he was on to the big story of our time: “Notions of property, value, ownership and the nature of wealth itself are changing more fundamentally than at any time since the Sumerians first poked cuneiform into wet clay and called it stored grain. Only a very few people are aware of the enormity of this shift, and fewer of them are lawyers or public officials.” 67

With a nod to Professor Samuelson, Barlow was prescient enough to compare the vulnerability of indigenous peoples to the coming dispossession of Internet communities: “Western countries may legally appropriate the music, designs and biomedical lore of aboriginal people without compensation to their tribes of origins since those tribes are not an ‘author’ or ‘investors.’ But soon most information will be generated collaboratively by the cyber-tribal hunter-gatherers of cyberspace. Our arrogant legal dismissal of the rights of ‘primitives’ will soon return to haunt us.”

No account of cyberactivism in the 1990s is complete without mention of James Love, a feisty advocate with a brilliant strategic mind and an extraordinary ability to open up broad new policy fronts. For example, Love, as director of the Ralph Nader–founded Consumer Project on Technology, worked with tech activist Carl Malamud to force the U.S. Securities and Exchange Commission to put its EDGAR database of corporate filings online in 1994, at a time when the SEC was planning to give the data to private vendors to sell. By prevailing at the SEC, Love and Malamud set an important precedent that government agencies should post their information on the Internet for free. A few years later, in 1997, Love convened a conference to assess Microsoft’s troubling monopoly power, an event that emboldened the Department of Justice to launch its antitrust lawsuit against the company. Love later played a key role in persuading an Indian drugmaker to sell generic HIV/AIDS drugs to South Africa, putting Big Pharma on the defensive for its callous patent and trade policies and exorbitant drug prices. Love’s timely gambit in 1996 to organize broader advocacy for the public domain failed, however. He co-founded the Union for the Public Domain, with a board that included Richard Stallman, but the project never developed a political following or raised much money.

The American Library Association was the largest and bestfunded advocate on copyright issues in the 1990s, but its collaborations with other Washington allies tended to be modest, and its grassroots mobilization disappointing. Libraries are respected in the public mind precisely because they are stable, apolitical civic institutions — that is, not activists. Despite its valuable presence on copyright and Internet policy issues, the library lobby was temperamentally disinclined to get too far ahead of the curve.

By the end of the decade, a muscular, dissenting discourse about copyright law was starting to take shape. On one side was a complicated body of industry-crafted copyright law that claimed imperial powers to regulate more and more aspects of daily life — your Web site, your music CDs, your electronic devices, your computer practices. On the other side were ordinary people who loved how the Internet and digital devices were empowering them to be creators and publishers in their own right. They just wanted to indulge their natural human urge to share, tinker, reuse, and transform culture.

The dissent of the progressive copyright scholars and activists, though pungent, was hardly insurrectionist. These critics were reformers, not bomb throwers. Most objected to the overreaching scope and draconian enforcement of copyright law, not to its philosophical foundations. They generally argued that the problem wasn’t copyright law per se, but the misapplication and overextension of its core principles.

A New Story About the Public Domain

One of the most notable outgrowths of all this activity was the development of a new story about the public domain. Scholars took a range of legal doctrines that were scattered among the sprawling oeuvre of copyright law and consolidated them under one banner, the public domain. The new framing helped give the public’s rights in cultural works a new moral standing and intellectual clarity.

Even though copyright law has existed for three centuries, the term “public domain” did not surface in a U.S. Supreme Court decision until 1896. The public domain was first mentioned in U.S. copyright law in 1909, and while it occasionally merited passing reference or discussion in later decades, the concept was not the subject of a significant law review article until 1981. That article was “Recognizing the Public Domain,” by Professor David Lange. 68 “David’s article was an absolutely lovely piece that sunk without a trace,” recalls Jessica Litman. “When a bunch of us discovered [Lange’s article] in the late 1980s, it had been neither cited nor excerpted nor reprinted nor anything — because nobody was looking for a defense of the public domain. People were looking for arguments for extending copyright protection. David was ahead of his time.”

The main reason that the public domain was ignored was that it was generally regarded as a nullity. “Public domain in the fields of literature, drama, music and art is the other side of the coin of copyright,” wrote M. William Krasilovsky in 1967. 69 “It is best defined in negative terms.” Edward Samuels wrote that the public domain “is simply whatever remains after all methods of protection are taken into account.” 70

Lange himself acknowledged this conventional wisdom when he wrote that the public domain “amounts to a dark star in the constellation of intellectual property.” He took issue with this history, however, and insisted upon the affirmative value of the public domain. Lange dredged up a number of “publicity rights” cases and commentary to shed light on the problem: Bela Lugosi’s widow and son claimed that they, not Universal Pictures, should own the rights to the character Dracula. Representatives of the deceased Marx Brothers sought to stop a Broadway production spoofing 1930s musicals from using the Marx Brothers’ characters. DC Comics, owner of a trademark in the Superman character, sued to prevent a group of Chicago college students from calling their newspaper The Daily Planet. And so on.

From such examples, Lange drove home a commonsense lesson about the derivative nature of creativity: we all depend on others to generate “new” works. Groucho, Chico, and Harpo Marx couldn’t “invent” their stage personas until, in classic vaudevillian tradition, they had adapted jokes and shtick from their peers. “In time,” Groucho wrote in his memoirs, “if [a comedian] was any good, he would emerge from the routine character he had started with and evolve into a distinct personality of his own. This has been my experience and also that of my brothers, and I believe this has been true of most of the other comedians.”

To which Lange added, “Of course, what Groucho is saying in this passage is that although he and his brothers began as borrowers they ended as inventors. . . . It is a central failing in the contemporary intellectual property literature and case law that that lesson, so widely acknowledged, is so imperfectly understood.” 71

In example after example, Lange made the point that “as access to the public domain is choked, or even closed off altogether, the public loses too: loses the rich heritage of its culture, the rich presence of new works derived from that culture, and the rich promise of works to come.” Lange warned that “courts must dispel” the “impression of insubstantiality” from which the public domain suffers. Nothing will be resolved, he warned, “until the courts have come to see the public domain not merely as an unexplored abstraction but as a field of individual rights as important as any of the new property rights.”

What Is “Authorship”?

Besides honoring the public domain, copyright reformers sought to develop a second, more subversive narrative. They questioned the very idea of individual “authorship” and “originality,” two central pillars of copyright law, The standard moral justification for granting authors exclusive rights in their works is the personal originality that they supposedly show in creating new works. But can “originality” and “authorship” be so neatly determined? What of the role of past generations and creative communities in enabling the creation of new works? Don’t we all, in the words of Isaac Newton, stand on the shoulders of giants?

The idea that sharing, collaboration, and adaptation may actually be important to creativity, and not merely incidental, was a somewhat daring theme in the early 1990s, if only because it had little recognition in copyright scholarship. While this line of analysis preceded the Internet, the arrival of the World Wide Web changed the debate dramatically. Suddenly there was a powerful, real-life platform for collective authorship. Within fifteen years, sharing and collaboration has become a standard creative practice, as seen in Wikipedia, remix music, video mashups, machinima films, Google map mashups, social networking, and much else.

Of course, in the early 1990s, the promise of online networks was only dimly understood. But for Jessica Litman, the tightening noose of proprietary control had troubling implications for fair use and the ability of people to create and share culture: “Copyright law was no longer as open and porous as it had been, so I felt compelled to try to defend the open spaces that nobody was paying attention to.” Litman published a major article on the public domain in 1990, instigating a fresh round of interest in it and establishing lines of analysis that continue to this day. 72

She made the then-startling claim, for example, that “the very act of authorship in any medium is more akin to translation and recombination than it is to creating Aphrodite from the foam of the sea. Composers recombine sounds they have heard before; playwrights base their characters on bits and pieces drawn from real human beings and other playwrights’ characters. . . . This is not parasitism; it is the essence of authorship. And, in the absence of a vigorous public domain, much of it would be illegal.” Litman argued that the public domain is immensely important because all authors depend upon it for their raw material, Shrink the public domain and you impoverish the creative process.

The problem, said Litman, is that copyright law contains a structural contradiction that no one wants to acknowledge. The law requires “originality” in order for a work to be protected — but it cannot truly determine what is “original.” If authors could assert that their works were entirely original, and courts conscientiously enforced this notion, copyright law would soon collapse. Everyone would be claiming property rights in material that had origins elsewhere. Shakespeare’s estate might claim that Leonard Bernstein’s West Side Story violates its rights in Romeo and Juliet; Beethoven would prevent the Bee Gees from using the opening chords of his Fifth Symphony.

When one person’s copyright claims appear to threaten another person’s ability to create, the courts have historically invoked the public domain in order to set limits on the scope of copyright protection. In this backhanded way, the public domain helps copyright law escape from its own contradictions and ensures that basic creative elements remain available to all. As Litman explained:

Because we have a public domain, we can permit authors to avoid the harsh light of a genuine search for provenance, and thus maintain the illusion that their works are indeed their own creations. We can tolerate the grant of overbroad and overlapping deeds through the expedient assumption that each author took her raw material from the commons, rather than from the property named in prior deeds. 73

In effect, copyright law sets up a sleight of hand: it invites authors to plunder the commons with the assurance that their borrowings will be politely ignored — but then it declares the resulting work of authorship “original” and condemns any further follow-on uses as “piracy.” This roughly describes the early creative strategy of the Walt Disney Company, which built an empire by rummaging through the public domain of fairy tales and folklore, adding its own creative flourishes, and then claiming sole ownership in the resulting characters and stories.

As Litman unpacked the realities of “authorship,” she showed how the idea of “originality” serves as a useful fiction. Any author must draw upon aspects of culture and recombine them without ever being able to identify the specific antecedents, she pointed out. Judges, for their part, can never really make a rigorous factual determination about what is “original” and what is taken from the public domain. In reality, said Litman, authorship amounts to “a combination of absorption, astigmatism and amnesia.” The public domain is vague and shifting precisely because it must constantly disguise the actual limits of individual “originality.”

English professor Martha Woodmansee and law professor Peter Jaszi helped expose many of the half-truths about “authorship” and “originality.” Their 1994 anthology of essays, The Construction of Authorship, showed how social context is an indispensable element of “authorship,” one that copyright law essentially ignores. 74 Thus, even though indigenous cultures collectively create stories, music, and designs, and folk cultures generate works in a collaborative fashion, copyright law simply does not recognize such acts of collective authorship. And so they go unprotected. They are vulnerable to private appropriation and enclosure, much as Stallman’s hacker community at MIT saw its commons of code destroyed by enclosure.

Before the Internet, the collaborative dimensions of creativity were hardly given much thought. An “author” was self-evidently an individual endowed with unusual creative skills. As the World Wide Web and digital technologies have proliferated, however, copyright’s traditional notions of “authorship” and “originality” have come to seem terribly crude and limited. The individual creator still matters and deserves protection, of course. But when dozens of people contribute to a single entry of Wikipedia, or thousands contribute to an open-source software program, how then shall we determine who is the “author”? 75 By the lights of copyright law, how shall the value of the public domain, reconstituted as a commons, be assessed? 76

The Bellagio Declaration, the outgrowth of a conference organized by Woodmansee and Jaszi in 1993, called attention to the sweeping deficiencies of copyright law as applied. One key point stated, “In general, systems built around the author paradigm tend to obscure or undervalue the importance of the ‘public domain,’ the intellectual and cultural commons from which future works will be constructed. Each intellectual property right, in effect, fences off some portion of the public domain, making it unavailable to future creators.” 77

Another fusillade of flaming arrows engulfed the fortress of “authorship” and “originality” in 1996, when James Boyle published Shamans, Software, and Spleens. With sly wit and deep analysis, this landmark book identified many of the philosophical paradoxes and absurdities of property rights in indigenous knowledge, software, genes, and human tissue. Boyle deftly exposed the discourse of IP law as a kind of Möbius strip, a smooth strip of logic that confusingly turns back on itself. “If a geography metaphor is appropriate at all,” said Boyle, “the most likely cartographers would be Dali, Magritte and Escher.” 78

“You Have No Sovereignty Where We Gather”

The deconstruction of copyright law over the past twenty years has been a significant intellectual achievement. It has exposed the copyright law’s philosophical deficiencies, showed how social practice deviates from it, and revealed the antisocial effects of expanding copyright protection. Critics knew that it would be impossible to defend the fledgling cyberculture without first documenting how copyright law was metastasizing at the expense of free expression, creative innovation, consumer rights, and market competition.

But as the millennium drew near, the tech-minded legal community — and law-minded techies — knew that critiques and carping could only achieve so much. A winnable confrontation with copyright maximalists was needed. A compelling counternarrative and a viable long-term political strategy had to be devised. And then somehow they had to be pushed out to the wider world and made real.

That task was made easier by the intensifying cultural squeeze. The proprietarian lockdown was starting to annoy and anger people in their everyday use of music, software, DVDs, and the Web. And the property claims were growing more extreme. The American Society of Composers, Authors and Publishers had demanded that Girl Scout camps pay a public performance license for singing around the campfire. Ralph Lauren challenged the U.S. Polo Association for ownership of the word polo. McDonald’s succeeded in controlling the Scottish prefix Mc as applied to restaurants and motels, such as “McVegan” and “McSleep.” 79

The mounting sense of frustration fueled a series of conferences between 1999 and 2001 that helped crystallize the disparate energies of legal scholarship into something resembling an intellectual movement. “A number of us [legal scholars] were still doing our own thing, but we were beginning to get a sense of something,” recalls Yochai Benkler, “It was no longer Becky Eisenberg working on DNA sequences and Pamela Samuelson on computer programs and Jamie Boyle on ‘environmentalism for the ’Net’ and me working on spectrum on First Amendment issues,” said Benkler. “There was a sense of movement.” 80 (“Environmentalism for the ’Net” was an influential piece that Boyle wrote in 1998, calling for the equivalent of an environmental movement to protect the openness and freedom of the Internet.) 81

“The place where things started to get even crisper,” said Benkler, “was a conference at Yale that Jamie Boyle organized in April 1999, which was already planned as a movement-building event.” That conference, Private Censorship/Perfect Choice, looked at the threats to free speech on the Web and how the public might resist. It took inspiration from John Perry Barlow’s 1996 manifesto “A Declaration of the Independence of Cyberspace.” It is worth quoting at length from Barlow’s lyrical cri de coeur — first published in Wired and widely cited — because it expresses the growing sense of thwarted idealism among Internet users, and a yearning for greater self-determination and self-governance among commoners. Barlow wrote:

Governments of the Industrial World, you weary giants of flesh and steel, I come from Cyberspace, the new home of Mind. On behalf of the future, I ask you of the past to leave us alone, You are not welcome among us, You have no sovereignty where we gather.

We have no elected government, nor are we likely to have one, so I address you with no greater authority than that with which liberty itself always speaks. I declare the global social space we are building to be naturally independent of the tyrannies you seek to impose on us. You have no moral right to rule us nor do you possess any methods of enforcement we have true reason to fear.

Governments derive their just powers from the consent of the governed. You have neither solicited nor received ours. We did not invite you, You do not know us, nor do you know our world. Cyberspace does not lie within your borders. Do not think that you can build it, as though it were a public construction project, You cannot. It is an act of nature and it grows itself through our collective actions.

You have not engaged in our great and gathering conversation, nor did you create the wealth of our marketplaces. You do not know our culture, our ethics, or the unwritten codes that already provide our society more order than could be obtained by any of your impositions.

You claim there are problems among us that you need to solve, You use this claim as an excuse to invade our precincts. Many of these problems don’t exist. Where there are real conflicts, where there are wrongs, we will identify them and address them by our means. We are forming our own Social Contract. This governance will arise according to the conditions of our world, not yours. Our world is different.

As Barlow made clear, the Internet was posing profound new questions — not just about politics, but about the democratic polity itself. What would be the terms of moral legitimacy and democratic process in cyberspace? Would the new order be imposed by a Congress beholden to incumbent industries and their political action committees, or would it be a new social contract negotiated by the commoners themselves? In posing such questions, and doing it with such rhetorical panache, Barlow earned comparisons to Thomas Jefferson.

The stirrings of a movement were evident in May 2000, when Benkler convened a small conference of influential intellectual property scholars at New York University Law School on “A Free Information Ecology.” This was followed in November 2001 by a large gathering at Duke Law School, the first major conference ever held on the public domain. It attracted several hundred people and permanently rescued the public domain from the netherworld of “nonproperty.” People from diverse corners of legal scholarship, activism, journalism, and philanthropy found each other and began to reenvision their work in a larger, shared framework.

Over three decades, copyright scholarship had become more incisive, impassioned, and focused on the public good — but much of the talk remained within the rarefied circles of the academy. What to do about the disturbing enclosures of the cultural commons remained a vexing, open question. The 1990s saw an eclectic smattering of initiatives, from EFF lawsuits and visionary manifestos to underfunded advocacy efforts and sporadic acts of hacker mischief and civil disobedience. All were worthwhile forms of engagement and exploratory learning. None were terribly transformative. Free software was growing in popularity in the 1990s, but its relevance to broader copyright struggles and the Internet was not yet recognized. Congress and the courts remained captive to the copyright-maximalist worldview. The idea of organizing a counter-constituency to lay claim to the public domain and forge a new social contract for cyberspace was a fantasy. Copyright law was just too obscure to excite the general public and most creators and techies. The commoners were too scattered and diverse to see themselves as an insurgent force, let alone imagine they might create a movement.

 45. Jack Valenti, “A Plea for Keeping Alive the U.S. Film Industry’s Competitive Energy, ” testimony on behalf of the Motion Picture Association of America to extend the term of copyright protection, Senate Judiciary Committee, September 20, 1995, at http://instructors.cwrl.utexas.edu/~martin/Valenti.pdf.

 46. Julie E. Cohen, “Copyright, Commodification and Culture: Locating the Public Domain,” in Lucie Guibaut and P. Bernt Hugenholtz eds. The Future of the Public Domain: Identifying the Commons in Information Law (The Netherlands: Kluwer Law International, 2006), pp. 121–66.

 47. Pamela Samuelson, “Challenges in Mapping the Public Domain,” in Guibault and Hugenholtz, eds. The Future of the Public Domain, pp. 7–26.

 48. Jessica Litman, Digital Copyright (Amherst, NY: Prometheus, 2000), p. 62.

 49. Tyler Ochoa, “Origins and Meanings of the Public Domain,” Dayton Law Review 28, no. 215 (2002).

 50. Lawrence Lessig explains the impact of eliminating the copyright registration requirement in Lessig, Free Culture (New York: Penguin, 2004), pp. 222–23.

 51. Interview with Jessica Litman, November 16, 2006.

 52. Ibid.

 53. James Boyle, “The Second Enclosure Movement and the Construction of the Public Domain,” Law and Contemporary Problems 66 (Winter–Spring 2003), pp. 33–74, at http://www.law.duke.edu/shell/cite.pl?66+Law+&+Contemp.+Probs.+33+ (WinterSpring+2003).

 54. Interview with Peter Jaszi, October 17, 2007.

 55. Sega Enterprises v. Accolade, 977 F.2d 1510 (9th Cir. 1993).

 56. Harper & Row v. Nation Enterprises, 471 U.S. 539 (1985).

 57. Samuelson, “Digital Information, Digital Networks, and the Public Domain,” p. 92.

 58. See, e.g., David Bollier, Brand Name Bullies: The Quest to Own and Control Culture (New York: Wiley, 2005).

 59. Jessica Litman has an excellent historical account of the NII campaign in her book Digital Copyright (Amherst, NY: Prometheus, 2000).

 60. Litman, Digital Copyright, pp. 89–100.

 61. Pamela Samuelson, “The Copyright Grab,” Wired, January 1996.

 62. Ibid.

 63. Litman, Digital Copyright, pp. 144–45.

 64. See Wikipedia entry for the Copyright Term Extension Act, at http://en.wikipedia.org/wiki/Sonny_Bono_Copyright_Term_Extension_Act. See also Eldred v. Ashcroft, 537 U.S. 186 (2003), F. 3d 849 (2001).

 65. Interview with Fred von Lohmann, March 20, 2006.

 66. 22. John Perry Barlow, “The Economy of Ideas,” Wired, March 1994, at http://www.wired.com/wired/archive/2.03/economy.ideas.html.

 67. Ibid.

 68. David Lange, “Recognizing the Public Domain,” Law and Contemporary Problems 44 (Autumn 1981).

 69. M. William Krasilovsky, “Observations on the Public Domain,” Bulletin of the Copyright Society 14, no. 205 (1967).

 70. Edward Samuels, “The Public Domain in Copyright Law,” Journal of the Copyright Society 41, no. 137 (1993), p. 138.

 71. Lange, “Recognizing the Public Domain,” p. 162.

 72. Jessica Litman, “The Public Domain,” Emory Law Journal 39, no. 965 (Fall 1990).

 73. Litman, “The Public Domain,” p. 1012.

 74. Martha Woodmansee and Peter Jaszi, eds., The Construction of Authorship: Textual Appropriation in Law and Literature (Durham, NC: Duke University Press, 1994).

 75. Henry Miller writes: “We carry within us so many entities, so many voices, that rare indeed is the man who can say he speaks with his own voice. In the final analysis, is that iota of uniqueness which we boast of as ‘ours’ really ours? Whatever real or unique contribution we make stems from the same inscrutable source whence everything derives. We contribute nothing but our understanding, which is a way of saying — our acceptance.” Miller, The Books in My Life (New York: New Directions), p. 198.

 76. Rufus Pollock, “The Value of the Public Domain,” report for Institute for Public Policy Research, London, July 2006, at http://www.rufuspollock.org/economics/papers/value_of_public_domain.ippr.pdf.

 77. See James Boyle, Shamans, Software, and Spleens: Law and the Construction of the Information Society (Cambridge, MA: Harvard University Press, 1995), p. 192.

 78. James Boyle, “A Theory of Law and Information: Copyright, Spleens, Blackmail and Insider Trading,” California Law Review 80, no. 1413 (1992), at http://www.law.duke.edu/boylesite/law&info.htm.

 79. These examples can be found in Bollier, Brand Name Bullies.

 80. Interview with Yochai Benkler, February 7, 2006.

 81. James Boyle, “A Politics of Intellectual Property: Environmentalism for the Net,” Duke Law Journal 47, no. 1 (October 1997), pp. 87–116, at http://www.law.duke.edu/boylesite/Intprop.htm.



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