No Safe Harbor. Essays About Pirate Politics.

History Of Copyright Rick Falkvinge

In this essay, I will look at the history of copyright from 1350 until present day. The story of the history books differs quite strongly from what you usually hear from the copyright industry.

We’re starting with the advent of the Black Death in Western Europe in the 1350s. Like all other places, Europe was hit hard: people fled westward from the Byzantine Empire and brought with them both the plague and scientific writings. It would take Europe 150 years to recover politically, economically, and socially.

The religious institutions were the ones to recover the slowest. Not only were they hit hard because of the dense congregation of monks and nuns, but they were also the last to be repopulated, as parents needed every available child in the family’s economy, agriculture, et cetera, in the decades following the Plague.

This is relevant because monks and nuns were the ones making books in this time. When you wanted a book copied, you would go to a scribe at a monastery, and they would copy it for you. By hand. No copy would be perfect; every scribe would fix spelling and grammatical errors while making the copy, as well as introduce some new ones.

Also, since all scribes were employed (read controlled) by the Catholic Church, there was quite some limitation to what books would be produced. Not only was the monetary cost of a single book astronomical — one copy of The Bible required 170 calfskins or 300 sheepskins (!!) — but there was also a limit to what teachings would be reproduced by a person of the clergy. Nothing contradicting the Vatican was even remotely conceivable.

By 1450, the monasteries were still not repopulated, and the major cost of having a book copied was the services of the scribe, an under-supplied craft still in high demand. This puts things in proportion, given the astronomical cost of the raw materials and that they were a minor cost in ordering a book. In 1451, Gutenberg perfected the combination of the squeeze press, metal movable type, oil based print inks and block printing. At the same time, a new type of paper had been copied from the Chinese, a paper which was cheap to make and plentiful. This made scribecraft obsolete more or less overnight.

The printing press revolutionized society by creating the ability to spread information cheaply, quickly, and accurately.

The Catholic Church, which had previously controlled all information (and particularly held a cornered market on the scarcity of information), went on a rampage. They could no longer control what information would be reproduced, could no longer control what people knew, and lobbied kings across Europe for a ban on this technology which wrestled control of the populace from them.

Many arguments were used to justify this effort, trying to win the hearts of the people for going back to the old order. One notable argument was, “How will the monks get paid?”

The Catholic Church would eventually fail in this endeavor, paving the way for the Renaissance and the Protestant movement, but not before much blood had been spilled in trying to prevent the accurate, cheap and quick distribution of ideas, knowledge, and culture.

This attempt culminated in France on January 13, 1535, when a law was enacted at the request of the Catholic Church, a law which forced the closure of all bookshops and stipulated death penalty by hanging for anybody using a printing press.

This law was utterly ineffective. Pirate print shops lined the country’s borders like a pearl necklace and pirate literature poured into France through contraband distribution channels built by ordinary people hungry for more things to read.

On May 23, 1533, Mary was formally declared a bastard by the archbishop. Her mother, Catherine, who was a catholic and the Pope’s protegé, had been thrown out of the family by her father Henry, who had turned protestant just to get rid of Catherine. This was an injustice Mary would attempt to correct all her life.

King Henry VIII wanted a son to inherit the Throne of England for the Tudor dynasty, but his marriage was a disappointment. His wife, Catherine of Aragon, had only borne him a daughter, Mary. Worse still, the Pope would not let him divorce Catherine in the hope of finding someone else to bear him a son.

Henry’s solution was quite drastic, effective, and novel. He converted all of England into Protestantism, founding the Church of England, in order to deny the Pope any influence over his marriage. Henry then had his marriage with Catherine of Aragon declared void on May 23, 1533, after which he went on to marry several other women in sequence. He had a second daughter with his second wife, and finally a son with his third wife. Unlike the bastard child Mary, her younger half-siblings — Elizabeth and Edward — were protestants.

Edward succeeded Henry VIII on the throne in 1547, at the age of nine. He died before reaching adult age. Mary was next in the line of succession, despite having been declared a bastard. Thus, the outcast ascended to the Throne of England with a vengeance as Mary I in 1553.

She had not spoken to her father for years and years. Rather, hers was the mission to undo her father’s wrongdoings to the Faith, to England, and to her mother, and to turn England back into Catholicism. She persecuted protestants relentlessly, publicly executing several hundred, earning her the nickname Bloody Mary.

She shared the concern of the Catholic Church over the printing press. The public’s ability to quickly distribute information en masse was dangerous to her ambitions to restore Catholicism, in particular their ability to distribute heretic material. (Political material, in this day and age, was not distinguishable from religious material.) Seeing how France had failed miserably in banning the printing press, even under threat of hanging, she realized another solution was needed. One that involved the printing industry in a way that would benefit them as well.

She devised a monopoly where the London printing guild would get a complete monopoly on all printing in England, in exchange for her censors determining what was fit to print beforehand. It was a very lucrative monopoly for the guild, who would be working hard to maintain the monopoly and the favor of the Queen’s censors. This merger of corporate and governmental powers turned out to be effective in suppressing free speech and political-religious dissent.

The monopoly was awarded to the London Company of Stationers on May 4, 1557. It was called copyright.

It was widely successful as a censorship instrument. Working with the industry to suppress free speech worked, in contrast to the French attempt in the earlier 1500s to ban all printing by decree. The Stationers worked as a private censorship bureau, burning unlicensed books, impounding or destroying monopoly-infringing printing presses, and denying politically unsuitable material the light of day. Only in doubtful cases did they care to consult the Queen’s censors for advice on what was allowed and what was not. Mostly, it was quite apparent after a few initial consultations.

There was obviously a lust for reading, and the monopoly was very lucrative for the Stationers. As long as nothing politically destabilizing was in circulation, the common people were allowed their entertainment. It was a win-win for the repressive Queen and for the Stationers with a lucrative monopoly on their hands.

Mary I died just one year later, on November 17, 1558. She was succeeded by her protestant half-sister Elizabeth, who went on to become Elizabeth I and one of the highest-regarded regents of England ever. Mary’s attempts to restore Catholicism to England had failed. Her invention of copyright, however, survives to this day.

After Bloody Mary had enacted the copyright censorship monopoly in 1557, neither the profitable industry guild nor the censoring Crown had any desire to abolish it. It would stand uninterrupted for 138 years.

As we have seen, the copyright monopoly was instituted as a censorship mechanism by Mary I in 1557 to prevent people from discussing or disseminating Protestant material. Her successor, Elizabeth I, was just as happy to keep the monopoly after Mary’s death in 1558 to prevent people from discussing or disseminating Catholic material.

During the 1600s, Parliament gradually tried to wrestle control of the censorship from the Crown. In 1641, Parliament abolished the court where copyright cases had been tried, the infamous Star Chamber. In effect, this turned violation of the monopoly into a sentence-less crime, much like jaywalking in Sweden today: While it was still technically a crime, and technically illegal, you could not be tried for it and there was no punishment. As a result, creativity in Britain soared into the stratosphere.

Unfortunately, this wasn’t what Parliament had had in mind at all.

In 1643, the copyright censorship monopoly was re-instituted with a vengeance. It included demands for pre-registrations of author, printer and publisher with the London Company of Stationers, a requirement for publication license before publishing anything, the right for the Stationers to impound, burn and destroy unlicensed equipment and books, and arrests and harsh punishments for anybody violating the copyright censorship.

Fast forwarding a bit, there was something called the Glorious Revolution in 1688, and Parliament’s composition changed radically to mostly people who had previously been at the business end of censorship and weren’t all too keen for that to continue. Therefore, the Stationers’ monopoly was made to expire in 1695.

So from 1695 onward, there was no copyright. None. Creativity soared — again — and historians claim that many of the documents that eventually led to the founding of the United States of America were written in this time.

Unfortunately, the London Company of Stationers were not happy at all with the new order where they had lost their lucrative monopoly. They gathered their families on the stairs of Parliament and begged for the monopoly to be reinstated.

It is noteworthy that authors did not ask for the copyright monopoly: the printers and distributors did. There was never an argument along the lines that nothing would be written without copyright; the argument was that nothing would be printed without copyright. This is something else entirely.

Parliament, having just abolished censorship, was keen on not re-instituting a central point of control with a possible abuse potential. The Stationers’ responded by suggesting that writers should “own” their works. In doing so, they killed three birds with one stone. One, Parliament would be assured that there was no central point of control which could be used to censor. Two, the publishers would retain a monopoly for all intents and purposes, as the writers would have nobody to sell their works to but the publishing industry. Three, and perhaps most importantly, the monopoly would be legally classified as Anglo-Saxon Common Law rather than the weaker Case Law, and therefore given much stronger legal protection.

The publishing lobby got as they wanted, and the new copyright monopoly was re-enacted in 1709, taking effect on April 10, 1710. This was the copyright lobby’s first major victory.

What we see at this point in history is copyright in its unspun form: a monopoly with heritage from censorship where artists and authors were not even considered, but where it was always for the publishers’ profit.

Also, the Stationers would continue to impound, destroy and burn others’ printing presses for a long time, despite not having the right any longer. Abuse of power came immediately, and would last until the pivotal Entick vs. Carrington case in 1765, when yet another of these raids for “unlicensed” (read unwanted) authors had taken place. In the verdict of this court case in 1765, it was firmly established that no right may be denied to any citizen if not expressly forbidden by law, and that no authority may take itself any right not explicitly given by law.

Thus, the very first foundations of modern democracy and civil liberties were won in the battle against the copyright monopoly. There is nothing new under the sun.

When the United States was founded, the concept of monopolies on ideas was carried to the New World and debated intensely. Thomas Jefferson was a fierce opponent to the monster of monopolies on ideas. A compromise was reached.

Copyright didn’t originate in the United States, as we have seen. The idea had been there beforehand and the Founding Fathers carried the laws with them into their new country. The topic of monopolies on ideas, however, was a topic not easily settled. Jefferson wrote:

In the end, the United States Constitution was the first one to specify the reason for copyrights (and patents!) to be granted. It is very clear and straightforward in its justification for the existence of copyright in United States law:

It is particularly notable that the purpose of the monopoly was not for any profession to make money, neither writer nor printer nor distributor. Instead, the purpose is exemplary in its clarity: the only justification for the monopoly is if it maximizes the culture and knowledge available to society.

Thus, copyright (in the US, and therefore predominantly today) is a balance between the public’s access to culture and the same public’s interest of having new culture created. This is tremendously important. In particular, note here that the public is the only legitimate stakeholder in the wording and evolution of copyright law: the monopoly holders, while certainly being benefactors of the monopoly, are not legitimate stakeholders and should have no say in its wording, just like a regiment town should have no say in whether that regiment is actually needed for national security.

It is useful to point at the wording of the US Constitution when people falsely believe that the copyright monopoly exists so that artists can make money. It never did, not in any country.

In the meantime in the United Kingdom, books were still quite expensive, mostly because of the copyright monopoly. Book collections were only seen in rich men’s homes, and some started benevolently to lend books to the common people.

The publishers went mad about this, and lobbied Parliament to outlaw the reading of a book without first paying for their own copy. They tried to outlaw the public library before the library had even been invented. “Reading without paying first? That’s stealing from the authors! Taking the bread right out of their childrens’ mouths!”

But Parliament took a different stance, seeing the positive impact of reading on society. The problem perceived by Parliament was not the self-described eternal plight of the copyright monopolists, but the problem that rich men in society dictated who would read and who wouldn’t. It seemed beneficial to society to level the playing field: to create public libraries, accessible to poor and rich alike.

The copyright monopolists went absolutely ballistic when they heard about this idea. “You can’t let anybody read any book for free! Not a single book will be sold ever again! Nobody will be able to live off their writing! No author will write a single book ever again if you pass this law!”

Parliament in the 1800s was much wiser than today, however, and saw the copyright monopolists’ tantrum for what it was. Parliament took a strong stance that public access to knowledge and culture had a larger benefit to society than the copyright monopoly, and so in 1849, the law instituting public libraries in the UK was passed. The first public library opened in 1850.

And as we know, not a single book has been written ever since. Either that, or the copyright monopolists’ rant about nothing being created without a strong monopoly was as false then as it is when repeated today.

(Note: in some European countries, authors and translators get some pennies for every book lent from a library. It should be strongly noted that this is not a compensation for an imaginary loss of income, as if every reduction in the monopoly required compensation, but a national cultural grant which happens to measure popularity and therefore suitability for that grant using statistics from libraries. Besides, the grant appeared in the early 1900s, long after libraries.)

Germany had no copyright monopoly during this time. Several historians argue that this led to the rapid proliferation of knowledge that enabled Germany to take the industrial lead over the United Kingdom — knowledge could be spread cheaply and efficiently. So in a way, Germany’s leapfrogging of the United Kingdom proved British Parliament right: the national interest of access to culture and knowledge does supersede the monopoly interest of the publishers.

In the late 1800s, the publishers’ ever-strengthening copyright monopoly had lopsided the creators’ chances of making any revenue off of their works. Basically, all the money went to publishers and distributors, and creators were left starving, due to the copyright monopoly. (Just like today.)

A person in France named Victor Hugo would take the initiative to try to level the playing field by internationalizing a French tradition known as droit d’auteur, “writer’s right,” into the copyright monopoly. Also, he would try to make the copyright monopoly international: until now, it had just been a national monopoly. A French writer could sell his monopoly to a French publisher, and the publisher would enjoy monopoly powers in France, but not in Germany or the United Kingdom. Hugo sought to change this.

Paradoxically, the copyright and patent monopolies were forgotten when free market laws were enacted across Europe in the mid-1800s. Patent law still talks about “prevention of disloyal competition” as justification for its existence, which is a remnant from when guilds dictated products, craftsmen, and prices; if a business practices loyal competition in their industry segment today, we raid them at dawn and haul their ass to court. The copyright monopoly is a similar remnant from the printing guild of London.

Victor Hugo would try to balance the immense powers of the publishers by giving creators some rights under the copyright monopoly as well, unfortunately impoverishing the public further. (It is important here to remember that there are three parties to the copyright conflict: creators, publishers, and the public. Ironically, the public is the only legitimate stakeholder in the monopoly’s design.)

While Hugo didn’t live to see the fruition of his initiative, the Berne Convention was signed in 1886. It said that countries should respect the copyrights of other countries, and an agency — BIRPI — was set up as watchdog. This agency has mutated, grown and swelled and is today WIPO, which still oversees the Berne Convention, which has also swelled, mutated and been hijacked twice. (More on this shortly.)

So, at this point, there are four aspects of the copyright monopoly, which have more differences between them than similarities:

One, the commercial monopoly to fixations of a work. This is the original monopoly granted to London’s printing guild in exchange for censorship.

Two, the commercial monopoly to performances of a work. If somebody performs a work publicly on a for-profit stage, the monopoly holder has a right to demand money.

Three, the droit moral to be acknowledged as creator. The right for an author or artist to be acknowledged as creator of his or her work, acting as protection against counterfeiting and against plagiarism.

Four, the droit moral to veto an improper performance of the work. If an artist feels that a performance slights the work or the name of the artist, they have the right to deny that performance the light of day.

The droits morals are very different in nature from the commercial monopolies in that they cannot be sold or transferred. This sets them sharply apart from the justification that convinced British Parliament to re-enact the copyright monopoly in 1709.

It is also noteworthy how often these four aspects are deliberately confused to defend the most controversial and damaging of the monopolies, the commercial monopoly on fixations (and later duplication). You will often hear people from the copyright industry defending the monopoly by asking “would you want somebody else to take your work and claim it was theirs?”. However, this is the quite uncontroversial third part, the droit moral of attribution and credit, which cannot honestly be used to defend any of the two commercial monopolies.

The United States didn’t like moral rights, by the way, so they stayed outside of the Berne Convention until they could use it for leverage against Toyota a hundred years later. We’ll return to that soon.

During most of the 20th century, a battle of prominence raged between performing musicians and the record industry. For most of the century, musicians were regarded as the important party in law and in common sense. However, the record industry would rather see music corporatized. Active intervention by the self-declared fascist regime in Italy tipped the scales in this direction.

Copyright in the 20th century was not characterized by books, but by music. The 1930s saw two major developments that affected musicians: the Great Depression, which caused many musicians to lose their jobs, and movies with sound, which caused most of the rest of musicians to lose their jobs.

In this environment, two initiatives were taken in parallel. Musician’s unions tried to guarantee income and sustenance to the people who were now jobless, made redundant as we say today in executive-speak. Unions all over the West were concerned about the spread of “mechanized music”: any music that isn’t performed live and therefore didn’t need performing musicians. They wanted some power over the speaker technology, and the question was raised through the International Labour Organization (a predecessor to the UN agency with the same name).

At the same time, the record industry tried to exert the exact same power over speakers, radio and musicians. However, the entire political and business world at that time regarded them as a service contractor to the musicians. They could go about running their business if they were service-minded enough, or go bankrupt trying, and weren’t worth diddlysquat more than that to anyone. Anyone, with just one exception:

(This word, fascist, is loaded with emotion today. Italy’s regime at this time were self-declared fascists. I’m using the word to describe them exactly as they described themselves.)

In 1933, the phonographic industry was invited to Rome by Confederazione Generale Fascista dell’Industria Italiana and under the protection of same. At this conference, held on November 10-14, an international federation of the phonographic industry was formed. It would later be more known under its acronym, IFPI. It was agreed that IFPI would try to work within the Berne Convention to establish producers’ rights similar to those of the musicians and artists (which were always sold to publishers).

IFPI continued to meet in countries which welcomed their corporatist agenda, so they met in Italy the next year too, in Stresa. 1935 and onwards proved a bit turbulent for the world at large, but Italy still enacted corporatist rights of the record industry in 1937.

Negotiations for a copyright-like monopoly, attached to Berne and therefore international, was still too tempting for the record industry to resist. So after the war, IFPI reconvened in para-fascist Portugal in 1950. Italy wasn’t suitable anymore, and the conference readied a draft text that would give them copyright-identical monopolies, so-called “neighboring rights,” for producing and printing creative works such as music. This monopoly would be practically identical to the commercial copyright monopoly for fixations of a creative work.

The neighboring rights were ratified by BIRPI (today WIPO) in 1961 in the so-called Rome Convention, giving the record industry copyright-identical monopolies. At the same time, ILO’s attempt to give musicians similar rights had flopped, waned, and failed.

Since 1961, the record industry has feverishly defended copyright, despite the fact that it doesn’t enjoy any copyright monopoly, only the copyright-identical monopoly known as “neighboring rights.”

One needs to remember two things at this point :

First , the record industry is confusing all these monopolies on purpose. It keeps defending “its copyright,” which it doesn’t have, and talks nostalgically about how this copyright monopoly was created in great wisdom during the dawn of the Enlightenment [insert sunset and kittens here], referring to the Statute of Anne in 1709, which wasn't the first copyright anyway. In reality, the neighboring-rights monopolies were created in fascist countries (literally!) in a sunder-militarized recent Europe as late as 1961. These monopolies have been controversial and questioned from day one in 1961, and were certainly not the product of any Enlightenment wisdom.

Second , we were but a hair’s breadth from still regarding the record labels as service bureaus for musicians, had ILO not failed, instead of the chokehold on musicians that they have been for the past decades. This would have been the case if it had not been for two intervening fascist governments — fascist in the literal sense of the word — supporting the record industry in corporatizing society and becoming the copyright industry.

Throughout the 20th century, people involved with the copyright monopoly as middlemen rather than artists fought tooth and nail against every new development of technology and culture alike. The current claims against people sharing on the net should be seen in the light of this history.

Earlier, we looked at how the record industry middlemen did a successful regulatory capture in putting themselves in the middle of the economy. As we learn from history, this has been the norm with the middlemen's behavior rather than the exception, but the last century has really seen this accelerate.

It started around 1905, when the self-playing piano was becoming popular. Sellers of note sheet music proclaimed that this would be the end of artistry if they couldn't make a living off of being middlemen between composers and the public, so they called for a ban on the player piano.

In the 1920s, as broadcast radio started appearing, another copyright industry was demanding its ban because it cut into profits. This time, it was the business of pay telephone numbers that played music over the phone. "If people can listen to music for free with this radio thing, artists will starve!" This argument was re-used through most of the century, with the word "radio" replaced by the most recent technology.

In the 1930s, silent movies were phased out by movies with audio tracks. Every theater had previously employed an orchestra that played music to accompany the silent movies, and now, these were out of a job. It is quite conceivable that this is the single worst technical development for professional performers. Their unions demanded guaranteed jobs for these performers in varying propositions.

In the 1960s, the copyright industry was fretting over people taping music off of radio, and tried to have the practice banned. The debate died off about the same time it was pointed out that this ban was technically impossible with anything less than installing cameras in people's living rooms.

The 1970s saw the advent of the cassette tape, which is when the copyright industry really went all-out in proclaiming their entitlement. Ads saying "Home taping is killing music!" were everywhere. One band responded by subtly changing the message by changing "music" to "music industry," and "We left this side [of their tape] blank, so you can help." It saw many other parodies, too; regardless, the copyright industry were acting very seriously on the message.

The 1970s also saw another significant shift, where DJs started taking the place of live dance music. Musicians' unions and the copyright industry went ballistic over this, and suggested a "disco fee" that would be charged at locations playing disco (recorded) music, to be collected by private organizations under governmental mandate and redistributed to live bands. This produces heartly laughter today, but that laughter stops sharp with the realization that the disco fee was actually introduced, and still exists.

The 1980s is a special chapter with the advent of video recording. The copyright industry's famous quote when testifying before the US Congress — where the film lobby's highest representative said that " The VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone " — is the stuff of legend today. Still, it bears reminding that the Betamax Case went all the way to the Supreme Court, and that the VCR was as near as could be to being killed by the copyright industry: The Betamax team won the case by 5-4 in votes at the United States Supreme Court.

Also in the late 1980s, we saw the complete flop of the Digital Audio Tape (DAT). A lot of this can be ascribed to the fact that the copyright industry had been allowed to put its politics into the design: The cassette, although technically superior to the analog Compact Cassette, was so deliberately unusable for copying music that people rejected it flat outright. This is an example of a technology that the copyright industry succeeded in killing, even though I doubt it was intentional: They just got their wishes as to how it should work to not disrupt the status quo.

In 1994, the Fraunhofer Institute published a prototype implementation of its digital coding technique that would revolutionize digital audio. It allowed CD-quality audio to take one-tenth of the disk space, which was very valuable in this time, when a typical hard drive would be just a couple of gigabytes. Technically known as MPEG-1 Audio Layer III, it was quickly shortened to "MP3" in everyday speak. The copyright industry screamed again, calling it a technology that only can be used for criminal activity. The first successful MP3 player, the Diamond Rio, saw the light in 1998. It had 32 megabytes of memory. Despite good sales, the copyright industry sued its maker, Diamond Multimedia, into oblivion: While the lawsuit was eventually struck down, the company did not recover from the burden of defending. The monopoly middlemen tried aggressively to have MP3 players banned, just like every previous piece of new technology.

The century ended with the copyright middlemen pushing through a new law in the United States called the Digital Millennium Copyright Act. For the first time, the copyright industry managed to introduce intermediary liability — as in making people liable in a court of law for merely carrying a signal which is broadcast by somebody else. Just like if you put up a public wall, and would become responsible for posters that other people put up on it: Not sane anywhere, but this isn't about sanity, it is about regulatory captures and enshrining the continued profit of monopolists into books of law.

The century also ended on a positive note, as Napster hit the light of day in 1999. Deservingly, the middlemen's handling of Napster is described as as a textbook example of an industry business failure in a delusion of entitlement. In the final section, we'll take a look at how all the monopoly industries joined together to hold the entire economy for ransom.

Toyota struck at the heart of the American soul in the 1970s, and all her politicians started carrying mental “The End Is Nigh” signs. The most American things of all — cars! The American Cars! — weren’t good enough for the American people. They all bought Toyota instead. This was an apocalypse-grade sign that United States was approaching its end as an industrial nation, unable to compete with Asia.

The period of 1960 to 2010 is marked by two things: one, the record-label-driven creepage of the copyright monopoly into the noncommercial, private domain where it was always a commercial-only monopoly before (“home taping is illegal” and such nonsense) and the monopoly therefore threatening fundamental human rights, and two, the corporate political expansion of the copyright monopoly and other monopolies.

When it was clear to politicians that the United States would no longer be able to maintain its economic dominance by producing anything industrially valuable or viable, many committees were formed and tasked with coming up with the answer to one crucial question: How can the US maintain its global dominance if (or when) it is not producing anything competitively valuable?

The response came from an unexpected direction: Pfizer.

The president of Pfizer, Edmund Pratt, had a furious op-ed piece in a New York Times on July 9, 1982 titled “Stealing from the Mind.” It fumed about how third world countries were stealing from them. (By this, he referred to making medicine from their own raw materials with their own factories using their own knowledge in their own time for their own people, who were frequently dying from horrible but curable third-world conditions.) Major policymakers saw a glimpse of an answer in Pfizer’s and Pratt’s thinking, and turned to Pratt’s involvement in another committee directly under the President. This committee was the magic ACTN: Advisory Committee on Trade Negotiations.

What the ACTN recommended, following Pfizer’s lead, was so daring and provocative that nobody was really sure whether to try it out: The US would try linking its trade negotiations and foreign policy. Any country who didn’t sign lopsided “free trade” deals that heavily redefined value would be branded in a myriad of bad ways, the most notable being the “Special 301 watchlist.” This list is supposed to be a list of nations not respecting copyright enough. A majority of the world’s population is on it, among them Canada.

So the solution to not producing anything of value in international trade was to redefine “producing,” “anything,” and “value” in an international political context, and to do so by bullying. It worked. The ACTN blueprints were set in motion by US Trade Representatives, using unilateral bullying to push foreign governments into enacting legislation that favored American industry interests, bilateral “free trade” agreements that did the same, and multilateral agreements that raised the bar worldwide in protection of American interests.

In this way, the United States was able to create an exchange of values where they would rent out blueprints and get finished products from those blueprints in return. This would be considered as a fair deal under the “free trade” agreements which redefined value artificially.

The entire US monopolized industry was behind this push: The copyright industries, the patent industries, all of them. They went forum shopping and tried to go to WIPO — repeating the hijack of the record industry in 1961 — to seek legitimacy and hostship for a new trade agreement that would be marketed as “Berne Plus”.

At this point, it became politically necessary for the US to join the Berne Convention for credibility reasons, as WIPO is the overseer of Berne.

However, WIPO saw right through this scheme and more or less kicked them right out the door. WIPO was not created to give any country that kind of advantage over the rest of the world. They were outraged at the shameless attempt to hijack the copyright and patent monopolies.

So, another forum was needed. The US monopoly industry consortium approached GATT — the General Agreement on Tariffs and Trade — and managed to get influence there. A major process was initiated whereby about half of the participating countries in GATT were tricked, coerced or bullied into agreeing with a new agreement under GATT, an agreement which would lock in the Berne Convention and strengthen the US industry considerably on top of that by redefining “producing,” “thing,” and “value.” This agreement was called TRIPs. Upon ratification of the TRIPs agreement, the GATT body was renamed WTO, the World Trade Organization. The 52 GATT countries choosing to stay out of the WTO would soon find themselves in an economic position where it became economically impossible to not sign the colonializing terms. Only one country out of the original 129 has not rejoined.

TRIPs has been under considerable fire for how it is constructed to enrich the rich at the expense of the poor, and when they can’t pay with money, they pay with their health and sometimes their lives. It forbids third world countries from making medicine in their own factories from their own raw materials with their own knowledge to their own people. After several near-revolts, some concessions were made in TRIPs to “allow” for this.

But perhaps the most telling story of how important the artificial monopolies are to the United States’ dominance came when Russia sought admission into the WTO (for incomprehensible reasons). To allow Russia admission, the United States demanded that the Russia-legal music shop AllofMP3 should be closed. This shop sold copies of MP3 files and was classified as a radio station in Russia, paying appropriate license fees and was fully legal.

Now, let’s go back a bit to review what was going on. This was the United States and Russia sitting at the negotiating table. Former enemies who kept each other at nuclear gunpoint 24 hours a day, 7 days a week, through sandstorm and blizzard. The United States could have demanded and gotten anything. Absolutely anything.

So what did the United States demand?

It asked for Russia to close a bloody record store.

That’s when you realize how much there is to these monopolies.

File sharing is not just a private matter. It’s a matter of global economic dominance, and always has been. Let’s keep sharing and move that power from the monopolists to the people. Teach everybody to share culture, and the people will win against the constrainers of liberties, just as happened at the start of this essay, when people learned to read for themselves and toppled the Catholic Church.

(Lately, the copyright and patent industries have sought to repeat the TRIPs trick with ACTA, which they now call “Trips Plus.” This is not finished yet as the last word hasn’t been said.)

This concludes the history of the copyright monopoly as of 2011. Let’s make sure we can write another chapter in ten years and are freer than ever to publish, share and spread it.

This essay was originally published as a seven-part series on the author's website, http://falkvinge.net

The DRM Sausage Factory Cory Doctorow

Otto von Bismarck quipped, "Laws are like sausages, it is better not to see them being made." I've seen sausages made. I've seen laws made. Both pale in comparison to the process by which anti-copying technology agreements are made.

This technology, usually called "Digital Rights Management" (DRM) proposes to make your computer worse at copying some of the files on its hard-drive or on other media. Since all computer operations involve copying, this is a daunting task — as security expert Bruce Schneier has said, "Making bits harder to copy is like making water that's less wet."

At root, DRMs are technologies that treat the owner of a computer or other device as an attacker, someone against whom the system must be armored. Like the electrical meter on the side of your house, a DRM is a technology that you possess, but that you are never supposed to be able to manipulate or modify. Unlike your meter, though, a DRM that is defeated in one place is defeated in all places, nearly simultaneously. That is to say, once someone takes the DRM off a song or movie or ebook, that freed collection of bits can be sent to anyone else, anywhere the network reaches, in an eyeblink. DRM crackers need cunning: those who receive the fruits of their labor need only know how to download files from the Internet.

Why manufacture a device that attacks its owner? A priori, one would assume that such a device would cost more to make than a friendlier one, and that customers would prefer not to buy devices that treat them as presumptive criminals. DRM technologies limit more than copying: they limit ranges of uses, such as viewing a movie in a different country, copying a song to a different manufacturer's player, or even pausing a movie for too long. Surely, this stuff hurts sales: who goes into a store and asks, "Do you have any music that's locked to just one company's player? I'm in the market for some lock-in."

So why do manufacturers do it? As with many strange behaviors, there's a carrot at play here, and a stick.

The carrot is the entertainment industries' promise of access to their copyrighted works. Add DRM to your iPhone and we'll supply music for it. Add DRM to your TiVo and we'll let you plug it into our satellite receivers. Add DRM to your Zune and we'll let you retail our music in your Zune store.

The stick is the entertainment industries' threat of lawsuits for companies that don't comply. In the last century, entertainment companies fought over the creation of records, radios, jukeboxes, cable TV, VCRs, MP3 players and other technologies that made it possible to experience a copyrighted work in a new way without permission. There's one battle that serves as the archetype for the rest: the fight over the VCR.

The film studios were outraged by Sony's creation of the VCR. They had found a DRM supplier they preferred, a company called Discovision that made non-recordable optical discs. Discovision was the only company authorized to play back movies in your living room. The only way to get a copyrighted work onto a VCR cassette was to record it off the TV, without permission. The studios argued that Sony — whose Betamax was the canary in this legal coalmine — was breaking the law by unjustly endangering their revenue from Discovision royalties. Sure, they could just sell pre-recorded Betamax tapes, but Betamax was a read-write medium: they could be copied. Moreover, your personal library of Betamax recordings of the Sunday night movie would eat into the market for Discovision discs: why would anyone buy a pre-recorded video cassette when they could amass all the video they needed with a home recorder and a set of rabbit-ears?

The Supreme Court threw out these arguments in a 1984 5-4 decision, the "Betamax Decision." This decision held that the VCR was legal because it was "capable of sustaining a substantially non-infringing use." That means that if you make a technology that your customers can use legally, you're not on the hook for the illegal stuff they do.

This principle guided the creation of virtually every piece of IT invented since: the Web, search engines, YouTube, Blogger, Skype, ICQ, AOL, MySpace... You name it, if it's possible to violate copyright with it, the thing that made it possible is the Betamax principle.

Unfortunately, the Supremes shot the Betamax principle in the gut two years ago [ed: 2005], with the Grokster decision. This decision says that a company can be found liable for its customers' bad acts if they can be shown to have "induced" copyright infringement. So, if your company advertises your product for an infringing use, or if it can be shown that you had infringement in mind at the design stage, you can be found liable for your customers' copying. The studios and record labels and broadcasters love this ruling, and they like to think that it's even broader than what the courts set out. For example, Viacom is suing Google for inducing copyright infringement by allowing YouTube users to flag some of their videos as private. Private videos can't be found by Viacom's copyright-enforcement bots, so Viacom says that privacy should be illegal, and that companies that give you the option of privacy should be sued for anything you do behind closed doors.

The gutshot Betamax doctrine will bleed out all over the industry for decades (or until the courts or Congress restore it to health), providing a grisly reminder of what happens to companies that try to pour the entertainment companies' old wine into new digital bottles without permission. The tape-recorder was legal, but the digital tape-recorder is an inducement to infringement, and must be stopped.

The promise of access to content and the threat of legal execution for non-compliance is enough to lure technology's biggest players to the DRM table.

I started attending DRM meetings in March, 2002, on behalf of my former employers, the Electronic Frontier Foundation. My first meeting was the one where Broadcast Flag was born. The Broadcast Flag was weird even by DRM standards. Broadcasters are required, by law, to deliver TV and radio without DRM, so that any standards-compliant receiver can receive them. The airwaves belong to the public, and are loaned to broadcasters who have to promise to serve the public interest in exchange. But the MPAA and the broadcasters wanted to add DRM to digital TV, and so they proposed that a law should be passed that would make all manufacturers promise to pretend that there was DRM on broadcast signals, receiving them and immediately squirreling them away in encrypted form.

The Broadcast Flag was hammered out in a group called the Broadcast Protection Discussion Group (BPDG) a sub-group from the MPAA's "Content Protection Technology Working Group," which also included reps from all the big IT companies (Microsoft, Apple, Intel, and so on), consumer electronics companies (Panasonic, Philips, Zenith), cable companies, satellite companies, and anyone else who wanted to pay $100 to attend the "public" meetings, held every six weeks or so (you can attend these meetings yourself if you find yourself near LAX on one of the upcoming dates).

CPTWG (pronounced Cee-Pee-Twig) is a venerable presence in the DRM world. It was at CPTWG that the DRM for DVDs was hammered out. CPTWG meetings open with a "benediction," delivered by a lawyer, who reminds everyone there that what they say might be quoted "on the front page of the New York Times," (though journalists are barred from attending CPTWG meetings and no minutes are published by the organization) and reminding all present not to do anything that would raise eyebrows at the FTC's anti-trust division (I could swear I've seen the Microsoft people giggling during this part, though that may have been my imagination).

The first part of the meeting is usually taken up with administrative business and presentations from DRM vendors, who come out to promise that this time they've really, really figured out how to make computers worse at copying. The real meat comes after the lunch, when the group splits into a series of smaller meetings, many of them closed-door and private (the representatives of the organizations responsible for managing DRM on DVDs splinter off at this point).

Then comes the working group meetings, like the BPDG. The BPDG was nominally set up to set up the rules for the Broadcast Flag. Under the Flag, manufacturers would be required to limit their "outputs and recording methods" to a set of "approved technologies." Naturally, every manufacturer in the room showed up with a technology to add to the list of approved technologies — and the sneakier ones showed up with reasons why their competitors' technologies shouldn't be approved. If the Broadcast Flag became law, a spot on the "approved technologies" list would be a license to print money: everyone who built a next-gen digital TV would be required, by law, to buy only approved technologies for their gear.

The CPTWG determined that there would be three "chairmen" of the meetings: A representative from the broadcasters, a representative from the studios, and a representative from the IT industry (note that no "consumer rights" chair was contemplated — we proposed one and got laughed off the agenda). The IT chair was filled by an Intel representative, who seemed pleased that the MPAA chair, Fox Studios' Andy Setos, began the process by proposing that the approved technologies should include only two technologies, both of which Intel partially owned.

Intel's presence on the committee was both reassurance and threat: reassurance because Intel signaled the fundamental reasonableness of the MPAA's requirements — why would a company with a bigger turnover than the whole movie industry show up if the negotiations weren't worth having? Threat because Intel was poised to gain an advantage that might be denied to its competitors.

We settled in for a long negotiation. The discussions were drawn out and heated. At regular intervals, the MPAA reps told us that we were wasting time — if we didn't hurry things along, the world would move on and consumers would grow accustomed to un-crippled digital TVs. Moreover, Rep Billy Tauzin, the lawmaker who'd evidently promised to enact the Broadcast Flag into law, was growing impatient. The warnings were delivered in quackspeak, urgent and crackling, whenever the discussions dragged, like the crack of the commissars' pistols, urging us forward.

You'd think that a "technology working group" would concern itself with technology, but there was precious little discussion of bits and bytes, ciphers and keys. Instead, we focused on what amounted to contractual terms: If your technology got approved as a DTV "output," what obligations would you have to assume? If a TiVo could serve as an "output" for a receiver, what outputs would the TiVo be allowed to have?

The longer we sat there, the more snarled these contractual terms became: Winning a coveted spot on the "approved technology" list would be quite a burden! Once you were in the club, there were all sorts of rules about whom you could associate with, how you had to comport yourself and so on.

One of these rules of conduct was "robustness." As a condition of approval, manufacturers would have to harden their technologies so that their customers wouldn't be able to modify, improve upon, or even understand their workings. As you might imagine, the people who made open source TV tuners were not thrilled about this, as "open source" and "non-user-modifiable" are polar opposites.

Another was "renewability:" the ability of the studios to revoke outputs that had been compromised in the field. The studios expected the manufacturers to make products with remote "kill switches" that could be used to shut down part or all of their device if someone, somewhere had figured out how to do something naughty with it. They promised that we'd establish criteria for renewability later, and that it would all be "fair."

But we soldiered on. The MPAA had a gift for resolving the worst snarls: When shouting failed, they'd lead any recalcitrant player out of the room and negotiate in secret with them, leaving the rest of us to cool our heels. Once, they took the Microsoft team out of the room for six hours, then came back and announced that digital video would be allowed to output on non-DRM monitors at a greatly reduced resolution (this "feature" appears in Vista as "fuzzing").

The further we went, the more nervous everyone became. We were headed for the real meat of the negotiations: The criteria by which approved technology would be evaluated: How many bits of crypto would you need? Which ciphers would be permissible? Which features would and wouldn't be allowed?

Then the MPAA dropped the other shoe: The sole criteria for inclusion on the list would be the approval of one of its member-companies, or a quorum of broadcasters. In other words, the Broadcast Flag wouldn't be an "objective standard," describing the technical means by which video would be locked away — it would be purely subjective, up to the whim of the studios. You could have the best product in the world, and they wouldn't approve it if your business-development guys hadn't bought enough drinks for their business-development guys at a CES party.

To add insult to injury, the only technologies that the MPAA were willing to consider for initial inclusion as "approved" were the two that Intel was involved with. The Intel co-chairman had a hard time hiding his grin. He'd acted as Judas goat, luring in Apple, Microsoft, and the rest, to legitimize a process that would force them to license Intel's patents for every TV technology they shipped until the end of time.

Why did the MPAA give Intel such a sweetheart deal? At the time, I figured that this was just straight quid pro quo, like Hannibal said to Clarice. But over the years, I started to see a larger pattern: Hollywood likes DRM consortia, and they hate individual DRM vendors. (I've written an entire article about this, but here's the gist: A single vendor who succeeds can name their price and terms — think of Apple or Macrovision — while a consortium is a more easily divided rabble, susceptible to co-option in order to produce ever-worsening technologies — think of Blu-Ray and HD-DVD). Intel's technologies were held through two consortia, the 5C and 4C groups.

The single-vendor manufacturers were livid at being locked out of the digital TV market. The final report of the consortium reflected this — a few sheets written by the chairmen describing the "consensus" and hundreds of pages of angry invective from manufacturers and consumer groups decrying it as a sham.

Tauzin washed his hands of the process: A canny, sleazy Hill operator, he had the political instincts to get his name off any proposal that could be shown to be a plot to break voters' televisions (Tauzin found a better industry to shill for, the pharmaceutical firms, who rewarded him with a $2,000,000/year job as chief of PHARMA, the pharmaceutical lobby).

Even Representative Ernest "Fritz" Hollings (“The Senator from Disney,” who once proposed a bill requiring entertainment industry oversight of all technologies capable of copying) backed away from proposing a bill that would turn the Broadcast Flag into law. Instead, Hollings sent a memo to Michael Powell, then-head of the FCC, telling him that the FCC already had jurisdiction to enact a Broadcast Flag regulation, without Congressional oversight.

Powell's staff put Hollings' letter online, as they are required to do by federal sunshine laws. The memo arrived as a Microsoft Word file — which EFF then downloaded and analyzed. Word stashes the identity of a document's author in the file metadata, which is how EFF discovered that the document had been written by a staffer at the MPAA.

This was truly remarkable. Hollings was a powerful committee chairman, one who had taken immense sums of money from the industries he was supposed to be regulating. It's easy to be cynical about this kind of thing, but it's genuinely unforgivable: Politicians draw a public salary to sit in public office and work for the public good. They're supposed to be working for us, not their donors.

But we all know that this isn't true. Politicians are happy to give special favors to their pals in industry. However, the Hollings memo was beyond the pale. Staffers for the MPAA were writing Hollings' memos, memos that Hollings then signed and mailed off to the heads of major governmental agencies.

The best part was that the legal eagles at the MPAA were wrong. The FCC took "Hollings'" advice and enacted a Broadcast Flag regulation that was almost identical to the proposal from the BPDG, turning themselves into America's "device czars," able to burden any digital technology with "robustness," "compliance," and "revocation rules." The rule lasted just long enough for the DC Circuit Court of Appeals to strike it down and slap the FCC for grabbing unprecedented jurisdiction over the devices in our living rooms.

So ended the saga of the Broadcast Flag. More or less. In the years since the Flag was proposed, there have been several attempts to reintroduce it through legislation, all failed. And as more and more innovative, open devices like the Neuros OSD enter the market, it gets harder and harder to imagine that Americans will accept a mandate that takes away all that functionality.

But the spirit of the Broadcast Flag lives on. DRM consortia are all the rage now — outfits like AACS LA, the folks who control the DRM in Blu-Ray and HD-DVD, are thriving and making headlines by issuing fatwas against people who publish their secret integers. In Europe, a DRM consortium working under the auspices of the Digital Video Broadcasters Forum (DVB) has just shipped a proposed standard for digital TV DRM that makes the Broadcast Flag look like the work of patchouli-scented infohippies. The DVB proposal would give DRM consortium the ability to define what is and isn't a valid "household" for the purposes of sharing your video within your "household's devices." It limits how long you're allowed to pause a video for, and allows for restrictions to be put in place for hundreds of years, longer than any copyright system in the world would protect any work for.

If all this stuff seems a little sneaky, underhanded, and even illegal to you, you're not alone. When representatives of nearly all the world's entertainment, technology, broadcast, satellite, and cable companies gather in a room to collude to cripple their offerings, limit their innovation, and restrict the market, regulators take notice.

That's why the EU is taking a hard look at HD-DVD and Blu-Ray. These systems aren't designed: They're governed, and the governors are shadowy group of offshore giants who answer to no one — not even their own members! I once called the DVD-Copy Control Association (DVD-CCA) on behalf of a Time-Warner magazine, Popular Science, for a comment about their DRM. Not only wouldn't they allow me to speak to a spokesman, the person who denied my request also refused to be identified.

The sausage factory grinds away, but today, more activists than ever are finding ways to participate in the negotiations, slowing them up, making them account for themselves to the public. And so long as you, the technology-buying public, pay attention to what's going on, the activists will continue to hold back the tide.

$$$$

Originally published as "A Behind-The-Scenes Look At How DRM Becomes Law," InformationWeek, July 11, 2007

Pirates Lawrence Lessig

If “piracy” means using the creative property of others without their permission — if “if value, then right” is true — then the history of the content industry is a history of piracy. Every important sector of “big media” today — film, records, radio, and cable TV — was born of a kind of piracy so defined. The consistent story is how last generation’s pirates join this generation’s country club — until now.

The film industry of Hollywood was built by fleeing pirates.[1] Creators and directors migrated from the East Coast to California in the early twentieth century in part to escape controls that patents granted the inventor of film making, Thomas Edison. These controls were exercised through a monopoly “trust,” the Motion Pictures Patents Company, and were based on Thomas Edison’s creative property — patents. Edison formed the MPPC to exercise the rights this creative property gave him, and the MPPC was serious about the control it demanded.

As one commentator tells one part of the story,

A January 1909 deadline was set for all companies to comply with the license. By February, unlicensed outlaws, who referred to themselves as independents protested the trust and carried on business without submitting to the Edison monopoly. In the summer of 1909 the independent movement was in full-swing, with producers and theater owners using illegal equipment and imported film stock to create their own underground market.

With the country experiencing a tremendous expansion in the number of nickelodeons, the Patents Company reacted to the independent movement by forming a strong-arm subsidiary known as the General Film Company to block the entry of non-licensed independents. With coercive tactics that have become legendary, General Film confiscated unlicensed equipment, discontinued product supply to theaters which showed unlicensed films, and effectively monopolized distribution with the acquisition of all U.S. film exchanges, except for the one owned by the independent William Fox who defied the Trust even after his license was revoked. [2]

The Napsters of those days, the “independents,” were companies like Fox. And no less than today, these independents were vigorously resisted.

“Shooting was disrupted by machinery stolen, and ‘accidents’ resulting in loss of negatives, equipment, buildings and sometimes life and limb frequently occurred.”[3] That led the independents to flee the East Coast. California was remote enough from Edison’s reach that filmmakers there could pirate his inventions without fear of the law. And the leaders of Hollywood film making, Fox most prominently, did just that.

Of course, California grew quickly, and the effective enforcement of federal law eventually spread west. But because patents grant the patent holder a truly “limited” monopoly (just seventeen years at that time), by the time enough federal marshals appeared, the patents had expired. A new industry had been born, in part from the piracy of Edison’s creative property.

The record industry was born of another kind of piracy, though to see how requires a bit of detail about the way the law regulates music. At the time that Edison and Henri Fourneaux invented machines for reproducing music (Edison the phonograph, Fourneaux the player piano), the law gave composers the exclusive right to control copies of their music and the exclusive right to control public performances of their music. In other words, in 1900, if I wanted a copy of Phil Russel’s 1899 hit “Happy Mose,” the law said I would have to pay for the right to get a copy of the musical score, and I would also have to pay for the right to perform it publicly.

But what if I wanted to record “Happy Mose,” using Edison’s phonograph or Fourneaux’s player piano? Here the law stumbled. It was clear enough that I would have to buy any copy of the musical score that I performed in making this recording. And it was clear enough that I would have to pay for any public performance of the work I was recording.

But it wasn’t totally clear that I would have to pay for a “public performance” if I recorded the song in my own house (even today, you don’t owe the Beatles anything if you sing their songs in the shower), or if I recorded the song from memory (copies in your brain are not — yet — regulated by copyright law). So if I simply sang the song into a recording device in the privacy of my own home, it wasn’t clear that I owed the composer anything. And more importantly, it wasn’t clear whether I owed the composer anything if I then made copies of those recordings.

Because of this gap in the law, then, I could effectively pirate someone else’s song without paying its composer anything.

The composers (and publishers) were none too happy about this capacity to pirate. As South Dakota senator Alfred Kittredge put it,

Imagine the injustice of the thing. A composer writes a song or an opera. A publisher buys at great expense the rights to the same and copyrights it. Along come the phonographic companies and companies who cut music rolls and deliberately steal the work of the brain of the composer and publisher without any regard for [their] rights.[4]

The innovators who developed the technology to record other people’s works were “sponging upon the toil, the work, the talent, and genius of American composers,”[5] and the “music publishing industry” was thereby “at the complete mercy of this one pirate.” [6] As John Philip Sousa put it, in as direct a way as possible, “When they make money out of my pieces, I want a share of it.”[7]

These arguments have familiar echoes in the wars of our day. So, too, do the arguments on the other side. The innovators who developed the player piano argued that “it is perfectly demonstrable that the introduction of automatic music players has not deprived any composer of anything he had before their introduction.” Rather, the machines increased the sales of sheet music.[8] In any case, the innovators argued, the job of Congress was “to consider first the interest of [the public], whom they represent, and whose servants they are.” “All talk about ‘theft,’” the general counsel of the American Graphophone Company wrote, “is the merest claptrap, for there exists no property in ideas musical, literary or artistic, except as defined by statute.”[9]

The law soon resolved this battle in favor of the composer and the recording artist. Congress amended the law to make sure that composers would be paid for the “mechanical reproductions” of their music. But rather than simply granting the composer complete control over the right to make mechanical reproductions, Congress gave recording artists a right to record the music, at a price set by Congress, once the composer allowed it to be recorded once. This is the part of copyright law that makes cover songs possible. Once a composer authorizes a recording of his song, others are free to record the same song, so long as they pay the original composer a fee set by the law.

American law ordinarily calls this a “compulsory license,” but I will refer to it as a “statutory license.” A statutory license is a license whose key terms are set by law. After Congress’s amendment of the Copyright Act in 1909, record companies were free to distribute copies of recordings so long as they paid the composer (or copyright holder) the fee set by the statute.

This is an exception within the law of copyright. When John Grisham writes a novel, a publisher is free to publish that novel only if Grisham gives the publisher permission. Grisham, in turn, is free to charge whatever he wants for that permission. The price to publish Grisham is thus set by Grisham, and copyright law ordinarily says you have no permission to use Grisham’s work except with permission of Grisham.

But the law governing recordings gives recording artists less. And thus, in effect, the law subsidizes the recording industry through a kind of piracy — by giving recording artists a weaker right than it otherwise gives creative authors. The Beatles have less control over their creative work than Grisham does. And the beneficiaries of this less control are the recording industry and the public. The recording industry gets something of value for less than it otherwise would pay; the public gets access to a much wider range of musical creativity. Indeed, Congress was quite explicit about its reasons for granting this right. Its fear was the monopoly power of rights holders, and that that power would stifle follow-on creativity.[10]

While the recording industry has been quite coy about this recently, historically it has been quite a supporter of the statutory license for records. As a 1967 report from the House Committee on the Judiciary relates,

… the record producers argued vigorously that the compulsory license system must be retained. They asserted that the record industry is a half-billion-dollar business of great economic importance in the United States and throughout the world; records today are the principal means of disseminating music, and this creates special problems, since performers need unhampered access to musical material on nondiscriminatory terms. Historically, the record producers pointed out, there were no recording rights before 1909 and the 1909 statute adopted the compulsory license as a deliberate anti-monopoly condition on the grant of these rights. They argue that the result has been an outpouring of recorded music, with the public being given lower prices, improved quality, and a greater choice.[11]

By limiting the rights musicians have, by partially pirating their creative work, the record producers, and the public, benefit.

Radio was also born of piracy.

When a radio station plays a record on the air, that constitutes a “public performance” of the composer’s work.[12] As I described above, the law gives the composer (or copyright holder) an exclusive right to public performances of his work. The radio station thus owes the composer money for that performance.

But when the radio station plays a record, it is not only performing a copy of the composer’s work. The radio station is also performing a copy of the recording artist’s work. It’s one thing to have “Happy Birthday” sung on the radio by the local children’s choir; it’s quite another to have it sung by the Rolling Stones or Lyle Lovett. The recording artist is adding to the value of the composition performed on the radio station.

And if the law were perfectly consistent, the radio station would have to pay the recording artist for his work, just as it pays the composer of the music for his work.

But it doesn’t. Under the law governing radio performances, the radio station does not have to pay the recording artist. The radio station need only pay the composer. The radio station thus gets a bit of something for nothing. It gets to perform the recording artist’s work for free, even if it must pay the composer something for the privilege of playing the song.

This difference can be huge. Imagine you compose a piece of music. Imagine it is your first. You own the exclusive right to authorize public performances of that music. So if Madonna wants to sing your song in public, she has to get your permission.

Imagine she does sing your song, and imagine she likes it a lot. She then decides to make a recording of your song, and it becomes a top hit. Under our law, every time a radio station plays your song, you get some money. But Madonna gets nothing, save the indirect effect on the sale of her CDs. The public performance of her recording is not a “protected” right. The radio station thus gets to pirate the value of Madonna’s work without paying her anything.

No doubt, one might argue that, on balance, the recording artists benefit. On average, the promotion they get is worth more than the performance rights they give up. Maybe. But even if so, the law ordinarily gives the creator the right to make this choice. By making the choice for him or her, the law gives the radio station the right to take something for nothing.

Cable TV was also born of a kind of piracy.

When cable entrepreneurs first started wiring communities with cable television in 1948, most refused to pay broadcasters for the content that they echoed to their customers. Even when the cable companies started selling access to television broadcasts, they refused to pay for what they sold. Cable companies were thus Napsterizing broadcasters’ content, but more egregiously than anything Napster ever did — Napster never charged for the content it enabled others to give away.

Broadcasters and copyright owners were quick to attack this theft. Rosel Hyde, chairman of the FCC, viewed the practice as a kind of “unfair and potentially destructive competition.”[13] There may have been a “public interest” in spreading the reach of cable TV, but as Douglas Anello, general counsel to the National Association of Broadcasters, asked Senator Quentin Burdick during testimony, “Does public interest dictate that you use somebody else’s property?”[14] As another broadcaster put it,

The extraordinary thing about the CATV business is that it is the only business I know of where the product that is being sold is not paid for.[15]

Again, the demand of the copyright holders seemed reasonable enough:

These were “free-ride[rs],” Screen Actor’s Guild president Charlton Heston said, who were “depriving actors of compensation.”[17] But again, there was another side to the debate. As Assistant Attorney General Edwin Zimmerman put it,

Copyright owners took the cable companies to court. Twice the Supreme Court held that the cable companies owed the copyright owners nothing.

It took Congress almost thirty years before it resolved the question of whether cable companies had to pay for the content they “pirated.” In the end, Congress resolved this question in the same way that it resolved the question about record players and player pianos. Yes, cable companies would have to pay for the content that they broadcast; but the price they would have to pay was not set by the copyright owner.

The price was set by law, so that the broadcasters couldn’t exercise veto power over the emerging technologies of cable. Cable companies thus built their empire in part upon a “piracy” of the value created by broadcasters’ content.

These separate stories sing a common theme. If “piracy” means using value from someone else’s creative property without permission from that creator -as it is increasingly described today[19 ] — then every industry affected by copyright today is the product and beneficiary of a certain kind of piracy. Film, records, radio, cable TV.... The list is long and could well be expanded. Every generation welcomes the pirates from the last. Every generation — until now.

This essay was originally published in the author's book Free Culture

Questions Concerning Copyright Brad Hall

In my years with the United States Pirate Party, I have been interviewed by various news outlets and students doing papers on third parties for various classes. I always answer student questions whenever such an e-mail appears in my inbox. Below are a sampling of their questions and my responses to them. I hope these students all received A's for their effort. Also, I am a big anime/manga fan, and that definitely comes out in this series of questions and answers. While this essay was originally written in 2010 and has existed for some time on the main USPP website and elsewhere, this version is newly updated.

1. Do you personally acquire digital media through file sharing? Downloading copyrighted material breaks several laws, and it is not the Pirate Party’s goal to break the law, simply to bring the law’s perspective into the digital information age.

2. How would content producers profit, if their media is being provided free of charge? The easiest way would be advertising. The people who make the songs that are the most listened to and the most downloaded or whatever, would receive the larger share of the revenue pie. Of course, as a friend pointed out to me previously, “Okay, advertising. Where does that money come from? As they say, every action has an equal and opposite reaction. You’re funded with advertising, someone else lost that advertising dollar.”

While an advertising-supported model has its limits, there are several models that have worked well for several companies/people.

Anime Network and Crunchyroll both have a system in place where you can watch some anime for free. Then you can watch more and other anime for a price. The price ranges from $7 per month to a yearly pass of $70 per year. I have no idea how many subscribers they get at any price. They also host a few advertisements. I have no idea how many or how much money those generate. Presumably it’s enough to keep them in business.

Kodansha recently came up with an idea of releasing manga (Japanese comic books) as a series of iPod/iPhone apps. It's a great idea, but there is that one major hurdle to cross: Apple itself. Apple is the gatekeeper for everything that is sold on the iTunes Store. If Apple does not approve of something, it does not get sold.

Selling on Amazon's Kindle ebook store would be another possibility. The overhead is lower for an Internet-based store than it is for a brick-and-mortar store. Also, there would be no physical objects to ship, so manga created for distribution on a Kindle (or other ebook reader) could retail for a lower price.

There is a comic called Megatokyo (www.megatokyo.com). It’s an American comic done in a “manga style.” Usually every Monday, Wednesday, and Friday, one page is uploaded to the site. The comic has a pile of followers, including myself. The way the author monetizes it is by selling a “low bandwidth version” (book) and shirts and other things that pop up in the comic.

Every page that has ever been uploaded to the Megatokyo site is still there so anyone can go back and read the series from the beginning at any time. This is particularly helpful for new fans who want to join the story.

Though, the only way that would work with manga is if the original writers release it online the same way. Of course these pages would have to be translated into nearly every language that the fans speak to ensure they keep coming back to the primary site and not some third party site that offers the pages translated to their language.

The difference between Megatokyo and any other manga is Megatokyo was made from the beginning to be a webcomic. If you read today’s page and get frustrated and want to read the next page, or the next chapter, tough. You have to wait for the page along with everyone else. You can’t go to some website and download the entirety of the series.

While flipping through an issue of one of my favorite manga series, Loveless, I can find no t-shirts that Soubi or Ritsuka wear that make me say “Oooh! I want that shirt!” though, some weirdo fangirls might go for the cat ears or something. Maybe a messenger bag. Every series has a messenger bag. Or maybe make a tie-in MMO.

In Loveless, the villains meet up in Wisdom Resurrection, a fictional MMORPG that appears to be based on Final Fantasy XI. That’s where they hold some of their meetings. Maybe they could make an MMO based on that. Maybe take a cue from Turbine and make it free-to-play, but make money via micro-transactions.

Turbine is a company that makes video games. Two of their game series, Dungeons & Dragons Online and Lord of the Rings Online used to be MMORPGs (Massively Multiplayer Online Role Playing Games) that operated under a subscription model, for so much money per month, you could play. Starting in 2009 Turbine started making these games free-to-play. You could still pay a monthly fee to receive certain advantages such as the ability to carry more gold and items, but you could play the games, to their completion, without paying a cent if you wanted. Many new players flocked to the games.

The third idea is to create a Hulu-like site where everything is free and available from all the major manufacturers. Force people to watch an ad or read an ad or whatever for x number of pages viewed.

The other problem with manga is this: “What’s good?” If you walk into a Books-A-Million any day of the week, you will find a pile of manga titles. Manga isn’t like a “funny book” where you can pick up any issue and know what’s going on. There’s a story. If I picked up Loveless volume six and read it without having read the previous five volumes, I’d have no idea what was going on.

“Thanks grandma… Full Metal Alchemist volume 73… thanks… yes grandma, this is one of them Japanese manga comics.” Never mind the fact I hadn’t read volume 1-72.

With a manga, you have to read about 2 or 3 volumes to figure out what the story is. That’s a cost of around $30 and who knows how many weeks/months/years of waiting for new volume to come out. And even then? Who knows. With 8 volumes of Loveless, I have spent $80, if each volume costs $10.

For $80, I could buy every Stephen King book I’ve not read yet.

As of this writing, Naruto, the most popular manga series currently in circulation is up to volume 58. Each volume retails for $10, then the entire run would cost $580, and that's before taxes. What kind of person has that kind of disposable income?

I was happy when Shonen Jump was released in the US several years ago. Shonen Jump is a manga anthology, each issue contains several chapters of a few different manga in it. I bought a subscription and had it active for a few years. I started to care less and less about it once Sandland concluded. Then I let it lapse. I have no idea what’s in it now.

Like I said, they don’t make it easy for people to find a new manga to get into. Why spend money on a series you might hate when you can pop onto a website and read a few chapters of it, heck, why not read the whole thing?

A coalition of comic book and manga publishers in the US and Japan has been pushing for litigation against at least 30 illegal scanlation websites.[1]

Scanlation is a portmanteau of “scan” and “translation” it refers to the act of obtaining the original (usually Japanese) language release of a manga (either by physically obtaining a copy or downloading a raw copy, a copy that is still in its original language).

Diehard fans translate their favorite series and release it on one of several popular scanlation websites. Manga isn't the only thing that can be scanlated, though, when it comes to anime, the word used is fansub.

Sure, one of the manga scanlation sites that’s under attack by the coalition is a Google Top 1000 website with page views that hover in the billions, but the questions are:

A. How much manga on that site is available commercially in the US? I talked to a friend of mine and found that he enjoyed a certain manga. Only nine volumes of that series were legitimately translated and released in the US, out of 20 volumes altogether. Then, for whatever reason, the US company that was legitimately translating and releasing it, canceled it. There are still 11 volumes unreleased in English. The friend went on to tell me how he read the rest of the series online as it was the only place that he could read the entire series. Oh, and that series has to be translated into English by a fan who enjoyed that series as well. I felt my friend's pain, as the company that had been releasing Loveless in the US decided to drop their license.

That’s just an example of something we used to have, but don’t have any more. What about the series that never came out here at all?

B. Would the people who read the manga online have bought it? This goes for the ones not released here as well as the ones that are. It’s the old question about downloading MP3s. Is it really “theft” if no physical item was removed?

Clearly there is a massive demand for easily obtainable manga and anime.

There are several authors who make pretty good money by releasing their material for free on their websites while also selling books. Cory Doctorow, an author (who also has an essay in this collection) does just that. By having the digital version of a book advertise for the printed version, it allows his work to spread further than it would have otherwise.

With today's print-on-demand companies, no one has to deal with a big publisher. This book you're reading right now, No Safe Harbor, was published as a free-to-download PDF. But, a print-on-demand version was also created. These POD companies print books as they are sold, so there is no warehouse to maintain a backlog of unsold books.

If we take that idea back to manga, it would be incredibly easy for a US or Japanese manga publisher to release content on a website for reading, and then have a system set up with a print-on-demand publisher to print only the copies of the full volume that are ordered by either bookstores or people. Of course, the thing that most likely stands in the way for such a system is rights and licensing of materials across several countries, hiring of translators, and other support people, as well as fear.

Fear?

Yes, fear. Most companies know how to make money doing what they are doing. They are afraid to try something new for fear that their house of cards could tumble down. They fear that which is new. Song writers feared player pianos, musicians feared radio, television broadcasters feared the VCR, music publishers feared Napster. It's a cycle of fear.

3. Why do you think piracy is illegal? The idea that sharing anything online is piracy is absurd. Actual piracy requires forceful and aggressive acts, committed against those who would keep a cargo safe from harm. The cargo in this case is the freedom to act. We would take it from those who jealously guard it for themselves and divide it amongst everyone in the country.

The Pirate Party wants to “raid” the law and “carry away” (repeal) laws which do not serve those on our metaphorical boat. The trick of it is: we’re all in the same boat. It is in service to those on our boat (the United States) that we aim to help.

We are not willing to accept that file sharing should be banned (and will take steps– once we have party members in office– to ensure that any laws in this regard are adamantly opposed, since technology isn’t the problem, but rather education about what its proper use is). On the other hand, we do agree that there is a significant amount of wrong being done to our rights in the name of protecting those whose sole aim for over 50 years has been the control and manipulation of human minds. Brainwashing our population is against our national interest in maintaining a democracy.

4. Should file sharers be punished? Should file sharers who sell the content for a profit be punished?: Back in the day, before the Internet. People would create “mix tapes” these were audio tapes that someone had painstakingly recorded a few songs from several vinyl records or other tapes to. Typically these were given to friends, not “friend” in the Internet sense, but friend in the local sense. You could really only physically hand these mix tapes to people you knew in person. These tapes were generally given as a kind of sampler, like a “this is the kind of music I’m in to, and I think you might dig it as well” kind of thing.

These tapes were given freely to people, and usually didn’t contain more than one or two songs by a particular artist. To the purveyors of mix tapes, these were not only seen as somewhat free advertising for artists, they were believed to be fair use (which is a tricky thing to actually prove), and then there’s the Audio Home Recording Act, which made the companies that created and sold blank audio tapes and tape deck recorders pay royalties to music writers and music publishers, whether or not the tapes were used to copy music. So right there, that was almost like the government saying it was legal to make mix tapes. (However, that does not make the old Napster or burning CDs on your computer legal).[2]

But, the second part of the question has to do with the selling of such content for profit. That is undeniably wrong. In November, 2010, I wrote a USPP newsletter item about a trip I made to the flea market. On this particular trip, I found a man selling obviously bootlegged DVDs on recordable media with the names of the films written on them with a Sharpie. That guy was breaking the law.[3]

He should be punished, as should other people who try to sell other people’s content for money. He is just as guilty as someone who would rent out the use of your car without you knowing, and without you receiving any of the proceeds thereof.

Okay, that’s probably a bad analogy, but it’s still not good.

As a counterpoint, I will say this: I have read that the only group who can use file sharing without problem is radio broadcasters as they do have to catalog each song and artist they play and pay royalties to the appropriate music writers and publishers organizations, so even if they download a song to play on the air, they’re still paying the original writer and publisher of the music.

A side note, notice I said nothing about the person who actually sings the song. Back when the royalty rates were first organized for these things, it was decreed that the song writer receive a portion and the song publisher receive a portion as the song itself was seen as an advertisement for the singer (and their band)’s albums. Of course, there are some songs that were written by the singer, so in that case the singer does get a royalty.

5. Do you think we can come up with a compromis e to current file sharing laws? Before you can come up with a compromise to current file sharing laws, you first have to figure out the why. Why do people share files? There are a pile of reasons. One is money, we’re in a financial crisis. People are losing jobs left and right, the amount of disposable income people have is decreasing, yet the price of content is increasing rapidly.

A number of people believe that content should be free and easily accessible. One way for that to happen is through an advertising supported model. Several years ago, one such service, called Ruckus existed for several years. It was only open to people who could sign up with a.edu email address, ostensibly, college students. You could download songs, for free. New songs, and even older songs, were added all the time. It was great! I loved it.

There was a few problems though: while you could download songs to your computer and play them offline, you could not remove them from your computer or burn to a CD or transfer to your iPod or other music playing device. They were locked to your computer, and so were you if you wanted to play your music.

The song files also only had a life of 30 days, you had to log back into the Ruckus website and Ruckus Media Player in order to renew the license on the songs.

That was a problem I could live with. But, then one day in 2009, the party ended. Officially, Ruckus said the problem was “overcrowding” – clearly the demand was there for a free music service. Too much demand.

There are two more free music services that recently came online, Spotify and Pandora. I have not had enough time using those services to pass judgment on them.

6. Do you think the laws shoul d adapt to evolving technology? Yes. The problem with the current laws of the United States is that the vast majority of them were written in the 1700s or had lobbyists and corporate interests in mind, and not the average citizen. The original term of copyright was 14 years, renewable to a further 14 years for a maximum of 28 years. Copyright now is “70 years after the death of author. If a work of corporate authorship, 95 years from publication or 120 years from creation, whichever expires first” that’s not exactly a “limited time” while technically, it is, but for the vast majority of the people alive today, we will all be dead in 120 years, so to us, that’s not a limited time, that’s a lifetime, plus several years. I would love for copyright to return to its original 14-year term.[4]

7. If you were an artist, would you support fre e distribution of your content? Yes. I intend to release most, if not all material I have created under a Creative Commons license, like the one this book uses. However, several years ago, Prince released his latest album, not in stores, but in the newspaper. Anyone who bought a copy of “The Mail on Sunday” received a free copy of his latest album, Planet Earth. Also, he had concert dates for 21 days in London that completely sold out, most likely due to his free CD advertising.

While this is a different kind of “sharing” than the kind the Internet is blamed for, the principle is the same: Would any of the people who received the free album bought it before? Would they have gone to Prince's show too?

8. Do you believe piracy is stealing? I believe I mentioned it previously, but, everyone who pirates an album, would they have bought that album had the pirated version not been available to them? I think not, at least not in every sense.

Downloading an album is different than walking into Best Buy or where ever, grabbing a CD, and walking out of a store without paying for it.

When you download an album, you’re just making a digital copy of it. Nothing has been removed. The original copy of that digital file is still on whatever computer it originally came from.

But when you go into a store and walk out without paying for the CD hidden in your jacket pocket, that is stealing. The retail industry has a word for it, “shrink” as in “shrinking profits” – it might take a while before the store realizes the CD has been stolen. As long as their computers say they still have one copy of an album on the shelves, they will not order more as they believe they still have one in stock. In this way, stealing one album could in turn lead to further lost sales than just one CD.

9. Who benefits the most fro m piracy? In the long run, no one benefits from piracy. Let’s say you like Band X, you download all of their albums, you give your friends copies of those copies, and those copies propagate e xponentially. On one hand, Band X now has a pile of fans, every band wants a pile of fans, right? But, on the other h and, now that you and a pile of friends you’ve never met have copies of Band X’s albums (for free, mind you), Band X is showing that they haven’t sold many albums because you and your “friends” have downloaded them. Why would Band X make more music when they don’t make any money from it? What record label would allow a band that doesn’t make money to release more albums? In the end, the record label decides not to renew their contract.

However, on the other side of the coin, the band now has many fans. These fans could channel their love of the band into ticket sales for a live tour. Several years ago the British band Radiohead left their record label, EMI, and proceeded to record a new album. Instead of releasing it as a CD, the band decided instead to release it on the internet using a “pay what you want” pricing structure. You could pay nothing for it, or you could pay a penny, or you could pay considerably more. The band went on record as saying they had made more money on the sales of that album than they had receieved for the digital sales of all their previous albums combined.

That marked the start of the self-releasing superstar band. Recently Hawthorne Heights and others have left their labels to become independent bands. While this does not stop piracy of their albums, without a record label, the band keeps more money of the sales they do make and are freer to make the artisitic decisions they want, not what upper management wants.

10. Do you agree with Google’s censorship of terms related to filesharing (torrent, utorrent, bittorrent, rapidshare, megaupload) in the autofill and instant features? What Google is trying to do is move the blame away from themselves in this matter. By having “torrent” pop up in an auto complete window would almost be like Google suggesting someone to download something using bittorrent. But, Google’s results themselves have no qualms about filling the results pages full of Rapidshare and Megaupload links. So basically, Google is trying to cover its rear in that it wouldn't “suggest” those words to you, but won’t stop you from clicking on links from those sites. If it did stop users, then that would raise several net neutrality issues that Google does not want to contend with, such as controlling where users go online.

11. Do you agree with the claims that piracy is hurting the music industry? I believe I touched on this item before in another question. But yes, I would say piracy is having an effect on the music industry. How big of an impact? I don’t know. And I’m willing to doubt the information and research the music industry is pushing forward on the matter. How can they know how many copies of a given album would sell if the Internet didn’t exist?

There are many reasons (and possibilities) why the music industry is hurting. One could be lack of good music, of course, everyone has a different idea of what good music is. And that’s one thing that could also be hurting the music industry: The glut of musicians. Back in “the day” there were fewer genres of music and the channels to get to that music was narrow as well. Everyone was listening to the same bands, so everyone bought the same records. You had Rock, Country (far different than the Country of today), Folk (which could be considered an offshoot of Country), R&B, Classical, and maybe a few others I can’t think of off the top of my head.

Today, just by looking at what I have on my shelf (I am an avid music lover and have over 200 CDs and I’ve not counted how much I have on vinyl) we have: Classic Rock, Contemporary Rock, Metal, Emo, Alternative, Trance, Video Game music, Eurobeat, J-Pop, Para Para, Canadian Folk, Finnish Prog Rock, American Prog Rock, Canadian Prog Rock, The Beatles (so good they have their own genre), Punk, Hardcore, Vocaloid, Surfer, Rap, R&B, Gangsta Rap, Screamo, Film soundtracks, Broadway play soundtracks, etc, and even some of those genres have subgenres that splinter infinitely.

So you see, a kind of splintering has occurred in music, we have more of it and getting more every day (or every Tuesday if you’re going by store release dates). I would love to see a study that seeks to see if this “hurting of the music industry” could be explained by this splintering. Bands aren’t selling millions of copies of albums anymore, but a few hundred thousand, if they’re lucky.

12. How do you view the current court cases of Joel Tenenbaum vs the RIAA and Jammie Thomas vs the RIAA? Thomas was the first person to be brought to trial for downloading music. She was brought to trial over 24 songs. The case kept being repealed and the amount of money figured for the settlement kept changing. At one trial she was told to pay $222,000. At another trial, $54,000. At a third trial, she was told to pay $1.5 million. At the $1.5 million dollar level, that amounts to $62,500 per song.

Per song?

Twenty-four songs, right? Okay, that’s around 2 CDs worth of music, give or take. What if she shoplifted this music instead? What if she shoplifted however many CDs she'd need to steal to come up with the 24 songs she was brought to trial over?

In Florida, if caught for shoplifting an item that costs less than $300 the maximum fine would be a fine of up to $500 and/or two months in jail for the first offense. Even the penalty for a 3rd offense isn't as severe as having to pay over a million dollars. In that case, the crime is upgraded to a felony, a fine of up to $5000 and/or five years in prison.[5]

That’s outrageous.

Not outrageous in the sense that Florida's fine and prison sentence is insane, it isn't. It's that the law in this country right now seems to think that if a computer was used in any way to commit a crime it makes it far more serious than if a computer was not used.

These were some great questions. Given that I’ve put these on the website (and this book) where anyone can read them now, I’d love to see some new questions from students.

Clearly there are far more ideas for this kind of thing than I have put forth. This is just a start.

This Gene Is Your Gene Kembrew McLeod

“This gene is your gene,” sang Francis Collins, playfully reworking an old Woody Guthrie song, with electric guitar in hand. “This gene is my gene,” he continued, backed up by the lumbering roar of a middle-aged rock band. This was no ordinary club gig; he was singing at a post–press conference party for scientists. Collins was the man who headed up the Human Genome Project (HGP), funded by the National Institutes of Health, and he was trying to make an ethical and political point. Since the mid-1990s, Collins' HGP had raced against a private effort to map the human genome in order to make our genetic information freely accessible, not privately owned and patented by a handful of corporations. Any scientist could examine HGP’s genome map for free — unlike the Celera Genomics’ privately owned draft, which was published with strings attached.[1] Over the din, Collins chided his competitors in song by genetically modifying Guthrie’s lyrics:

Dr. Francis Collins reworked “This Land Is Your Land” to argue that genetic information should be freely available to the scientific community. However, his use of that Woody Guthrie song was sadly ironic, on multiple levels. “This Land Is Your Land” is a song written by an unabashed socialist as a paean to communal property: “This land was made for you and me.” Another key lyric goes, “A sign was painted ‘Private Property’ but on the backside it didn’t say nothin’.” The folk-song tradition from which Guthrie emerged valued the open borrowing of lyrics and melodies; culture was meant to be freely created and re-created in a democratic, participatory way.

If this was so, then why was Collins' use of “This Land Is Your Land” painfully ironic? Even though it was written over sixty years ago, the song is, to quote Woody Guthrie himself, still “private property.” Guthrie based the melody of “This Land Is Your Land” on the Carter Family’s 1928 recording “Little Darlin’ Pal of Mine,” which in turn was derived from a nineteenth-century gospel song, “Oh, My Loving Brother.”[2] This means that, in the twenty-first century, the publishing company that owns the late Guthrie’s music can earn money from a song about communal property, which was itself based on a tune that is over a century old. Far more disturbing, Guthrie’s publishing company prevents musicians from releasing altered, updated lyrical versions of that song. We won’t be hearing Collins' mutated “This Gene Is Your Gene” anytime soon.

What’s the connection, you might be wondering, between folk music and genetic research? Although obviously very different endeavors, the practitioners of both used to value the open sharing of information (i.e., melodies or scientific data). In these communities, “texts” were often considered common property, but today this concept has been fundamentally altered by the process of privatization , that is, the belief that shared public resources — sometimes referred to by economists and social scientists as the commons — can be better managed by private industries. And in recent years, there’s been a significant erosion of both the cultural commons and the genetic commons, resulting in a shrinking of the public domain. The fact that folk melodies and lyrics are now privately owned rather than shared resources is a depressing example of how our cultural commons is being fenced off. As for the genetic commons, the patenting of human and plant genes is but the furthest logical extension of privatization — taken at times to illogical lengths.

One year, I was taking a shuttle van back from the airport, glad to be back in Iowa City but exhausted from the Christmas holidays and feeling mute. However, I was alone with a driver who obviously wanted to chat, so I answered his questions about what I do. I mentioned my interest in music, which got the full attention of Jim Bazzell — the grizzled, fifty-something man behind the wheel. It turned out that Bazzell’s father had been in a band called Jimmy and the Westerners, one of the many country-music combos that roamed the land in the 1940s and 1950s. They once performed at Nashville’s Grand Ole Opry and had their own radio show, though the group mainly made a living playing in honky-tonk bars around the Southwest.“My dad couldn’t read music and would play by ear,” says Bazzell. “I remember my mom would scramble to write down song lyrics as they came on the radio.” He chuckles, “Of course, she’d get a lot of ’em wrong because she couldn’t write as fast as they sang, so my dad would just make up the lyrics he didn’t know.”

This kind of improvisation used to be a common practice, especially in folk and country circles where lyrics and melodies were treated as raw materials that could be reshaped and molded in the moment. When writing my last book, for instance, I happened to be listening to a lot of old country music, and I noticed that six country songs shared the same vocal melody, including Hank Thompson’s “Wild Side of Life.”[2] In his exhaustively researched book, Country: The Twisted Roots of Rock ’n’ Roll, Nick Toches documented that the melody these songs used was both “ancient and British.” It’s unlikely that the writers of these songs simply ran out of melodic ideas and decided to pillage someone else’s music. It wasn’t artistic laziness. Rather, it’s probable that these six country songwriters, the majority of whom grew up during the first half of the twentieth century, felt comfortable borrowing folk melodies. They probably didn’t think twice about it.

This was also a time when more people knew how to play musical instruments, like Bazzell’s family, which performed small gigs at local hospitals and the like. His dad was proficient on fiddle and guitar -“any stringed instrument, really,” Jim says — and the kids learned to play at an early age, as did his mom. The stories he told reminded me of the song “Daddy Sang Bass,” which Carl Perkins wrote and Johnny Cash popularized. “Mama sang tenor,” the song’s chorus continued. “Me and little brother would join right in there.” It describes how the singer’s parents are now in heaven and how one day he’ll rejoin the family circle in song, concluding, “No, the circle won’t be broken...”

The chorus makes an overt reference to an important folk song that dates back to the nineteenth century: “Will the Circle Be Unbroken,” which the Carter Family made famous. Starting in the 1930s, Woody Guthrie drew direct inspiration from a lot of songs associated with the Carter Family, recycling their melodies to write his own pro-union songs. For example, Guthrie wrote in his journal of song ideas: “Tune of ‘Will the Circle Be Unbroken’ -will the union stay unbroken. Needed: a sassy tune for a scab song.”

Guthrie also discovered that a Baptist hymn performed by the Carter Family, “This World Is Not My Home,” was popular in migrant farm worker camps, but he felt the lyrics were counterproductive politically. The song didn’t deal with the day-to-day miseries forced upon the workers by the rich and instead told them they’d be rewarded for their patience in the next life:

The hymn could be understood to be telling workers to accept hunger and pain and not fight back. This angered Guthrie, so he mocked and parodied the original — keeping the melody and reworking the words to comment on the harsh material conditions many suffered through. “I ain’t got no home, I’m just a-ramblin’ round,” he sang, talking about being a homeless, wandering worker who gets hassled by the police, rather than a subservient, spiritual traveler waiting for an afterlife door prize. Instead of looking to heaven — because “I can’t feel at home in this world anymore” — Guthrie wryly arrived at his song’s punch line: “I ain’t got no home in this world anymore.”[3]

In 1940 Guthrie was bombarded by Irving Berlin’s jingoistic “God Bless America,” which goes, in part, “From the mountains to the prairies / to the oceans white with foam / God bless America, my home sweet home.” The irritated folk singer wrote a response that originally went, “From California to the New York Island / From the Redwood forest to the Gulf Stream waters / God blessed America for me.” (Guthrie later changed the last line to “This land was made for you and me.”) Continuing with his anti-privatization theme, in another version of this famous song Guthrie wrote:

He set the lyrics to a beautiful melody he learned from the Carter Family, giving birth to one of the most enduring (and endearing) folk songs of all time. Guthrie’s approach is a great example of how appropriation — stealing, borrowing, whatever you want to call it — is a creative act that can have a powerful impact. Before Guthrie, the Industrial Workers of the World, the Wobblies, borrowed from popular melodies for their radical tunes, which were published and popularized in the Little Red Songbook. These songs also parodied religious hymns, such as “In the Sweet By-and-By,” which was changed to, “You will eat, by and by.”[4]

For Guthrie and many other folk musicians, music was politics. Guthrie was affiliated closely with the labor movement, which inspired many of his greatest songs; these songs, in turn, motivated members of the movement during trying times. That’s why Guthrie famously scrawled on his guitar, “This Machine Kills Fascists.” Appropriation is an important method that creative people have used to comment on the world for years, from the radical Dada art of the early twentieth century to the beats and rhymes of hip-hop artists today. Guthrie drew from the culture that surrounded him and transformed, reworked, and remixed it in order to write moving songs that inspired the working class to fight for a dignified life. Instead of passively consuming and regurgitating the Tin Pan Alley songs that were popular during the day, Guthrie and other folk singers created culture in an attempt to change the world around them. They were truly part of a counterculture, not an over-the-counter culture.

Curious about the copyright status of Guthrie’s decades-old music, I called up Woody Guthrie Publishing and spoke to a very nice gentleman named Michael Smith, the general manager of the organization. He was clearly familiar with the folk-song tradition and obviously knowledgeable about Guthrie, but he nevertheless had a lot of trouble accepting the idea that copyright extension was a bad thing for art and culture. I was surprised when Smith told me that the song-publishing company that owns Guthrie’s music denies recording artists permission to adapt his lyrics. And I was shocked when Smith defended the actions of the company, called The Richmond Organization (TRO), even after I pointed out that Guthrie often altered other songwriters’ lyrics. “Well,” Smith explained, “he admitted to stealing, but at the time that Woody was writing...”He paused. “I mean, things have changed from Woody’s time.”

They certainly have. During the 2004 election season, a year after I spoke to Michael Smith, a small-time team of cartoonists posted a Guthrie-invoking political parody on their Web site. Not surprisingly, TRO threatened to sue. The animated short portrayed G.W. Bush and John Kerry singing a goofy ditty to the tune of “This Land Is Your Land,” where Bush said, “You’re a liberal sissy,” Kerry replied, “You’re a right wing nut job,” and they sang together, “This land will surely vote for me.” Guthrie’s copyright managers didn’t think it was funny at all. “This puts a completely different spin on the song,” TRO’s Kathryn Ostien told CNN. “The damage to the song is huge.” Perhaps more damage is done to Guthrie’s legacy by practicing such an aggressive form of copyright zealotry.

“If someone changed a lyric in Woody’s time,” said Michael Smith, “chances are it wasn’t going to be recorded and it was just spread through campfire singing, you know, family-time singing and stuff like that. You know, now you can create your own CD at home and distribute it any way you want to, and so the dissemination is a lot broader, a lot faster, and can be a lot more detrimental to the integrity of the song.”Detrimental to the integrity of the song? I pressed him further on Guthrie’s own alterations of others’ songs and asked what Woody would think of TRO locking up his folksong catalog. “The answer to that is, you know, ‘Hey, you’re going to have to ask him, because we have a duty,’ ” Smith said. “We don’t know what Woody would have wanted — we can’t tell.”

Soon Michael Smith began to make a little more sense to me — at least economic sense. “If you allow multiple rewrites to occur, then people will think it’s in the public domain, and then you have a hard time pressing people to prove to them that it’s not in the public domain.” Then the publishers can no longer generate revenue from it. That a company can still make money off “This Land Is Your Land” is exactly the type of thing I believe Woody Guthrie would not have wanted. Even worse, that TRO prevents musicians from releasing altered, updated versions of his music probably makes Guthrie roll in his grave. But don’t trust me; listen to the man himself. When Guthrie was still alive, for instance, Bess Lomax Hawes told him that his song “Union Maid” had gone into the oral tradition, as folklorists call it.

“It was part of the cultural landscape, no longer even associated with him,” said Hawes, the daughter of the famous song collector and archivist Alan Lomax.“He answered, ‘If that were true, it would be the greatest honor of my life.’ ”[5] In a written statement attached to a published copy of his lyrics for “This Land Is Your Land,” Guthrie made clear his belief that it should be understood as communal property. “This song is Copyrighted in US,” he wrote, “under Seal of Copyright # 154085, for a period of 28 years, and anybody caught singin’ it without our permission will be mighty good friends of ours, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.” Notice that he mentioned the song’s copyright lasted twenty-eight years, though the term was later lengthened.

Also note that Guthrie said, “We wrote it” not “ I wrote it,” something that indicates Guthrie didn’t see himself as the song’s sole author. Since much of the song’s power comes from that lovely melody passed down to him, how could he? In light of Guthrie’s view, how sad it is that others continue to taint this socialist musician’s ideals by keeping his songs private property, turning them into a lucrative revenue stream rather than a shareable part of our common cultural heritage. If Woody Guthrie had to make his art under the overly restrictive policies his song-publishing company imposes on today’s musicians, it would have been very hard for him to make his music at all. In some cases it would have been impossible, for “things have changed.”

In a dramatic turn of events, Ludlow Music, the subsidiary of TRO that controls Guthrie’s most famous copyrights, backed off from its legal threats against JibJab.com’s parody. This was after the Electronic Frontier Foundation (EFF) -a nonprofit organization that defends civil liberties online — came to the Web site’s rescue, providing legal counsel. What made the aftermath of the JibJab.com flap remarkable wasn’t merely that the copyright bullying ended. More interesting was the discovery by EFF senior intellectual property attorney Fred von Lohmann that, according to his research, “This Land Is Your Land” has been in the public domain since 1973! He writes:

Fact#1 : Guthrie wrote the song in 1940. At that time, the term of copyright was twenty-eight years, renewable once for an additional twenty-eight years. Under the relevant law, the copyright term for a song begins when the song is published as sheet music. (Just performing it is not enough to trigger the clock.)

Fact #2 : A search of Copyright Office records shows that the copyright wasn’t registered until 1956, and Ludlow filed for a renewal in 1984.

Fact #3 : Thanks to tips provided by musicologists who heard about this story, we discovered that Guthrie published and sold the sheet music for “This Land Is Your Land” in a pamphlet in 1945. An original copy of this mimeograph was located for us by generous volunteers who visited the Library of Congress in Washington, D.C. This means that the copyright in the song expired in 1973, twenty-eight years after Guthrie published the sheet music. Ludlow’s attempted renewal in 1984 was eleven years tardy, which means the classic Guthrie song is in the public domain. (I’ll note that Ludlow disputes this, although I’ve not heard any credible explanation from them.)

So Guthrie’s original joins “The Star-Spangled Banner,” “Amazing Grace,” and Beethoven’s Symphonies in the public domain. Come to think of it, now that “This Land Is Your Land” is in the public domain, can we make it our national anthem? That would be the most fitting ending of all.

Because art isn’t made from thin air, the existence of a large and thriving public domain enriches the quality and diversity of creative expression. It’s an important resource used by creative people to make new works, such as the musicals Les Misérables (based on the nineteenth-century novel by Victor Hugo) and West Side Story (based on Shakespeare’s Romeo and Juliet).[6] The public domain also promotes artistic freedom of expression®, because it eliminates the rigid control some copyright owners exercise over the context in which their works appear. For instance, Gilbert and Sullivan’s comic operas were tightly controlled by the D’Oyly Carte Opera, which required that all performances be staged exactly as the originals were. Not a note could change. But when the copyrights were released into the public domain the musicals were freed from the shackles of artistic mummification.[7]

Disney — which strongly lobbied for the Bono Act — made billions of dollars recycling “Snow White,” “Pinocchio,” “Beauty and the Beast,” and many other old stories and fables. Like Guthrie, it would have been much harder for Walt Disney to legally make his fortune if he had to work under the intellectual-property laws his corporate heirs advocate. In his dissenting opinion in the challenge to the Bono Act, which the Supreme Court upheld, Justice Stephen Breyer argued that this law threatens the endangered ecosystem that is our cultural commons. “I cannot find,” wrote Breyer, “any constitutionally legitimate, copyrighted-related way in which the statute will benefit the public. Indeed, in respect to existing works, the serious public harm and the virtually nonexistent public benefit could not be more clear.”

Copyright protectionists defend the Bono Act by pointing out that Congress was only adhering to international copyright standards. However, this assertion ignores the fact that U.S.–based corporations such as Disney had a hugely influential role in setting these standards. In 2003 Illegal Art — a label hosted by Steev Hise’s collage-centric Web site detritus.net and run by the pseudonymously named Philo Farnsworth (after the inventor of the television) — fought back. The label began work on its latest project, a compilation CD named Sonny Bono Is Dead. In its press release soliciting the input of artists, Illegal Art stated, “We encourage artists to liberally sample from works that would have fallen into the Public Domain by the year 2004 had the Sonny Bono Act failed,” adding slyly that “artists are also encouraged to create new works by sampling Sonny Bono’s output.”

This essay originally appeared in the author' s book, Freedom of Expression®