COPYCENSE

Commentary by K. Matthew Dames, executive editor.

One of the things I enjoy about the current spate of copyright battles is analyzing the way the Big Content uses its media and public relations machinery to frame the debate. For example, I find it interesting that Big Content consistently characterizes as “stealing” or “theft” any access to, or use of, a protected work that is unlicensed or uncompensated. It’s as if Big Content has shrunk the 1976 Copyright Act down to a handful of sections that include Section 106 (which deals with a copyright owner’s exclusive rights) and the five sections of Chapter 12 (which is where Congress codified the Digital Millennium Copyright Act).

By framing the copyright debate exclusively from the perspective of an owners’ exclusive rights, Big Content establishes an interesting paradigm: if one does not ask permission to use or access a copyrighted work before using or accessing that work, that person is “stealing.” In other words, if you don’t ask permission to access, use, copy, distribute, or remix, you’re stealing. But the frame has equally important, related tentacles. For example, if you don’t wait to receive permission to access or use protected works, Big Content tags you as a thief. Further, if you use or access after Big Content’s explicit rejection of permission, then Big Content portrays you as a thief.

Of course, this frame ignores the multitude of limitations, exceptions, and exemptions the Copyright Act includes for the benefit of parties other than copyright owners. (Many of these limitations and exceptions to copyright are codified sequentially within the Copyright Act at Sections 107 through 122.) These limitations establish a pair of critically important premises that rebut Big Content’s frame. First, under certain circumstances, non-owners do not need a copyright owner’s permission to access, use, copy, redistribute, or remix protected works. Second, and more importantly, non-owners that use the same set of limitations do not need to ask for permission to access, use, copy, redistribute, or remix.

Despite these limitations, Big Content hammers home this “theft” frame, mostly because the frame is supports its property rights position. There is a surreptitious danger, however, involved in debating Big Content on whether a certain action (or lack of action) is “stealing” or “theft.” If you do that, you’re automatically accepting the fundamental proposition that intellectual property is always and forever private property that may be stolen, instead of public property that Congress affords an exclusive, limited commercialization period.

Put another way, we should consider copyrighted works as public property that is on loan temporarily to the copyright owner, instead of private property that is temporarily on loan to the public. That slight change in perspective allows us to dispense with the frame. The perspective change also allows us a heightened awareness to the limitations and exceptions the Copyright Act provides.

This frame is evident throughout the debate about Google’s Print projects. Despite the fire, brimstone and righteous indignation that it has stoked through its public relations apparatus, the real reason Big Publishing has sued Google is because the search company did not ask permission to go forward with the scanning projects. (The possibility that Google’s activity is infringing was a secondary consideration.) The Association of American Publishers, one of Big Publishing’s chief lobbying organizations, reasons that its copyright infringement lawsuit against Google was “necessary” partly because Google failed to negotiate with Big Publishing about the boundaries of the search company’s scanning projects. The assumptions inherent in that reasoning include (a) Google was legally or morally obligated to discuss its business plans with Big Publishing; (b) Google was legally or morally obligated to negotiate with AAP or any of its members; and (c) Big Publishing’s grant of permission to Google was a condition precedent to Google’s commencement of, or involvement in, the scanning project.

All of those assumptions are legally, commercially, and practically absurd — but only if you look at copyrighted works as public property that is temporarily on loan to a private party. If you look at copyrighted works as private property, then it is difficulty to identify the frame and the absurd notions that emanate from that frame.

Unfortunately, few have identified or challenged the absurdity of AAP’s frame. Most of the media never challenge this frame. Thus, most of the public debate about the Google Print projects focuses on whether Google needs to get licenses from Big Publishing to engage in its scanning project — a premise that reinforces the “theft of [private] property” paradigm upon which Big Content always has relied — instead of focusing on other, more important factors. By changing our frame of reference for copyrighted works from private to public, it is easier to identify some of the questions we really should be asking, namely:

• how this and similar projects can promote access to knowledge;
• the affect of Big Publishing’s industry practices, which can leave even award-winning books out of print after just three years;
• the role of libraries and library representative organizations in the Google Print debate;
• the myth that AAP represents the view of all publishers (a position publisher Tim O’Reilly rejects, as seen in a previous post, “Less Than Five Percent of Titles Are Available“); or
• the myth that AAP’s lawsuit somehow will benefit users, a position Georgetown law professor Julie Cohen analyzes in a new paper.

The copyright debate is chock full of doublespeak material, so I will continue to analyze it as I find it. More chuckles are sure to come.

Update:

My father called as I was finishing this piece, and he offered two important insights that are worth sharing.

First, he thinks the “copyright as public work” perspective fundamentally changes how we think about copyright because if we think of copyrighted works as public works, we also may think of them as unoriginal, or (as Lawrence Lessig would say) common. By claiming copyrighted works as fundamentally public and common, we are suggesting that the creator is picking at culture’s landscape and using it to create “new” works that really are not new, just rearranged or remixed.

Second, my father observed that if there really is nothing new under the sun — and that all we’re talking about is the a rearranged and remixed culture — then copyright really is nothing more than the right to horde culture so some party can make money during a certain period of time. Further, he asks, if copyright can’t be about “original works fixed in a tangible medium of expression” because all works are derived from something else, then why do we grant copyright owners a period of life plus 70 years to make their money? Why can’t that money making period be limited to, say, 10 years?

Ultimately, my father thinks that my attempt to “break the frame” has more to do with me challenging copyright owners’ right to make money for more than a reasonable period of time than anything else. Perhaps he is right.

See also:

Edward Wyatt. Googling Literature: The Debate Goes Public. The New York Times. Nov. 19, 2005.

Pat Schroeder. Lack of Sense and Sensibility. USA Today. Nov. 7, 2005.

CopyCense™: K. Matthew Dames on the intersection of business, law and technology. A business venture of Seso Digital LLC.