COPYCENSE

“I’m as mad as hell and I’m not going to take this anymore!’ Things have got to change. But first, you’ve gotta get mad!” — Howard Beale, Network (1976)

2011 will be known as the year of the occupation, with Occupy Wall Street being the most recognizable of the protest movements. Started in September in New York City, Occupy Wall Street is a series of ongoing, international demonstrations that protest economic inequality, corruption, and the undue influence of corporations on society and government.

But what about “occupying” copyright?

Copyright Conundrum

Globally, there has been an increasing uproar over copyright law, its implementation, and mostly how it has evolved over the past two decades. There are many voices that have given voice to the discontent, including Techdirt’s Mike Masnick, law professor Michael Geist, and Pirate Party founder Rick Falkvinge. Many in copyright’s establishment have dismissed all these individuals as having a distorted view of the copyright system, or as activists lacking a firm view of political, economic or commercial reality.

Tougher to ignore, however, are people like William Patry, author of the eight-volume treatise Patry on Copyright, who ended his well-regarded namesake blog in despair three years ago. “I believe very much that in proper doses copyright is essential for certain classes of works, especially commercial movies, commercial sound recordings, and commercial books, the core copyright industries,” wrote Patry in August 2008. “But in my view, we are well past the healthy dose stage and into the serious illness stage. Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, [and] to suppress new business models and technologies. It is profoundly depressing, after 26 years full-time in a field I love, to be a constant voice of dissent.”

More recently, copyright and trademark lawyer Ron Coleman voiced similar dismay at the state of copyright. Coleman, chief author of the well-regarded Likelihood of Confusion blog, was much more direct. “Now IP is a racket,” Coleman wrote in November. “Practical lawyering in an area of law I actually like often disgusts me now.”

It should concern all when well-respected intellectual property practitioners with more than 50 years’ experience between them are so disgusted with copyright’s direction that they seem to want to spit out a foul taste from their mouths. But how did we get here?

Corporatizing Copyright

“There is only one holistic system of systems … It is the international system of currency which determines the totality of life on this planet. That is the natural order of things today.” Arthur Jensen, Network (1976)

The linkage between copyright and capitalism is lengthy and firm. While copyright always has had as its purpose the encouragement of learning, it also has been the vehicle through which creativity has been monetized. So it has been since the invention of the printing press; so too it continues today. Copyright critics allege the doctrine should surrender to new business models, conveniently ignoring that copyright always has been the chief component of a viable business model. Indeed, this very business model of selling copies of creative works has been relatively effective for most of three centuries. Assertions to the contrary are naive or uninformed, and it is inane to think a global market built on this foundation can be changed in the 30 years the Internet has been publicly available.

What has changed about the copyright system, however, is the extent to which it has become the basis for publicly-traded, multinational corporations in that global market. Copyright’s corporate and political globalization started in the mid-1980s, when business executives and domestic policy makers decided intellectual property should succeed manufacturing as the engine of the U.S. economy. The rationale for this shift was clear: the U.S. was fast losing its manufacturing base to Japan, particularly in the automotive industry, but American innovation and entertainment continued to lead the world. Thus, out went the emphasis on building cars, machines and widgets, and in came the emphasis on protecting intangibles through a combination of laws, treaties and foreign policy.

This change became even more pronounced during Bill Clinton’s two presidential terms. Clinton famously analogized the world’s nations to big corporations competing in the global marketplace. Since America led the world market in intellectual property and its tangible artifacts, he wanted to make sure the nation maintained this leadership role, particularly given the Internet’s possibilities and unknowns. It was Clinton who, with vice president Al Gore, recognized that Internet’s unprecedented potential to provide public access to information. But Clinton, through the White Paper, legislative, and trade processes, also ensured that most of that access would be available only on a “pay-per” basis. Ultimately, Clinton’s initiatives would result in Congress passing the Digital Millennium Copyright Act in 1998.

Most of the copyright legislation that Congress has passed or considered — including the Anti-Counterfeiting Trade Agreement (ACTA), which the U.S. signed in October; and the Stop Online Piracy Act (H.R. 3261), now before Congress — follows familiar arguments and introduction paths. Proponents (usually multinationals from the entertainment and software industries) argue the legislation or treaty is necessary to maintain American global economic competitiveness. By extension, “competitiveness” becomes a proxy for job creation.

In the end, these moves have been about money, mostly for corporations, and, to a lesser extent, entitled heirs of successful creators. But in an environment that increasingly has been hostile to corporations and entitlement, wherefore art thou Occupy Copyright?

Occupying Copyright

“Cash rules everything around me — C.R.E.A.M. Get the money: dollar, dollar bill y’all” Wu-Tang Clan (1993)

Despite increased and organized citizen engagement in Canada, the United Kingdom and the European Union over the direction and future of copyright, there has not been any strong, organized effort in the United States to reform copyright laws or policy. Even patent law, via the America Invents Act (which President Obama signed into law in September), has undergone legislative reform in response to wide insider complaint about the continued viability of that system.

Copyright, on the other hand, continues to follow the process Jessica Litman outlined in her 2001 book Digital Copyright: interested parties (usually large, multinational corporate copyright portfolio owners) convene privately to determine what they want next; Congress, emphasizing markets (and now jobs), sells and justifies that message; and the executive branch signs off on the process, either with a presidential signature on legislation or through the Trade Representative’s international lobbying and arm twisting.

This begs the question: even with Occupy’s resistance to corporate power and an outcry over copyright maximalism that has become impossible to ignore, do United States citizens have the political will and desire to change a copyright system that some of its most ardent defenders allege has gone awry? I don’t think so. The United States has led the copyright maximalist agenda for the last 30 years; for any serious reconsideration, U.S. citizens must force a reversal. But with jobs, income, and opportunity all in short supply, the American people arguably have other things to consider. Unfortunately, this means those same issues — jobs, income, and opportunity — will be used by the usual suspects to justify incrementally higher copyright protection, no matter the cost.

“Same as it ever was, same as it ever was …” — Talking Heads (1980)

Note: Portions of this article were published previously as Dames, K. M. (2012, January). Occupy copyright. Information Today, 29(1), 26-27.