Reading Lessig’s Remix : Copyright Regulating Culture

Lessig at Meet the Media Guru
Lawrence Lessig will tell you what copyright does to culture

My summer reading this year includes Lawrence Lessig‘s Remix, and it’s so far been refreshing to read about how copyright drives and hampers our culture.  Tonight, though, I’m hung up on a dark, sour fact about copyright, especially as it exists in America, which is that an act that was meant to control professional duplications (i.e., piracy) now regulates the lives of everyday citizens.

Lessig explains that American copyright legislation, as it was originally crafted in the 1790s, regulated the ‘printing, reprinting, publishing, and vending’ of works (2008, p. 100), i.e., it meant to prevent the professional reproduction and sale of texts; it wasn’t until the early 1900s that the law was redrafted to refer to the general copying of a text by a variety of means and for a variety of reasons.  As Lessig explains, “as the range of technologies that enabled people to ‘copy’ increased, so too did the effective scope of regulation increase” (p. 101).

On the surface, there isn’t anything necessarily wrong with this increased regulation – it should be well and proper that an individual’s creative works be protected, right? To an incredible degree, the answer is yes. A problem lies, however, in the fact that “every poet is a thief,” especially in a post-modern technoculture.  So much of art is inspired by one’s encounters with people, places, and texts (in a broad sense), and so many of these texts are today developed and then reserved under license by various copyright holders.  Art today, and our responses to art, are a pastiche of other objects (Lessig would call it a collage), which means that our ability to communicate freely is hampered by a law that has inadvertently grown out of control:

More and more people use technology to say things, and not simply with words. Music is remixed; video mash-ups proliferate; blogs begin to build a culture around the idea of talking back . . .

. . . Digital technology also changes how RW [remix] culture and copyright interact.  Because every use of creative work technically produces a copy, every use of creative work technically triggers copyright law.  And while many of these uses might be fair use . . . the critical point to recognize is that this is still a vast change to the history of American copyright law. For the first time, the law regulates ordinary citizens generally . . . For the first time, the law reaches and regulates this culture. Not because Congress deliberated and decided that this form of creativity needed regulation, but simply because the architecture of copyright law interacted with the architecture of digital technology to produce a massive expansion in the reach of the law.

(Lessig, p. 103.)

The point to take home is this: Copyright as we know it is an old law.  So many recent changes to it (e.g., the DMCA) have maligned the original law’s intention and are encoding into law the regulation of culture.  This isn’t to suggest that we should run back to 1790 or 1909 and interpret the act as lawmakers would have then, but it is to state that our current interpretation of Copyright doesn’t account for the effects that modern technology has on our culture’s relationship with an old statute.  The maligned interaction between copyright law and digital technology was not deliberate, so we have no reason to assume that any modernization should enshrine this faulty status quo.

DRM, Canada, and the long arm of contract law

One of my projects at work this month has been to promote the use of e-books.  I’m of two minds on the use of electronic book formats – I think the end user will one day see an incredible benefit from them, but I also think that until e-book readers (both software and hardware) become more user-friendly, e-books will remain subordinate to print editions, especially in the humanities.

At any rate, I’ve been reading a lot of contractual fine print on account of this project.  I’m up to my ears in Terms of Services Statements, Copyright Statements, and Privacy Policies, and some of the clauses in the contracts make me cringe.  Let’s look at some parts of eBrary‘s Terms of Service as an example (there is nothing out of the ordinary with eBrary’s TOS, by the way; I’m selecting it only because it is the reader I’ve been using this week).  You can find a link to the TOS at the bottom of your eBrary e-Reader page.  These links are routed through your own institution’s proxy server, however, so I’m instead linking to the TOS as listed on the eBrary corporate site.  The link may be different, but the terms remain the same.

1. Rights, Restrictions, and Respecting Copyrights

(a) The text, images, and other materials available on this site (collectively, the “Materials”) are protected by United States copyright and other applicable laws. You may not engage in any acts inconsistent with the principles of copyright protection and fair use (see the United States Code, 17 USC Sections 106-110). For example, you may not copy, print, reproduce, distribute, transmit, modify, display, or otherwise use the Materials or copies of the Materials, except that, subject to the other terms of this Agreement:

Unless you live in the United States (and the United States is admittedly a very large market), you’ve got problems at the outset.  These terms bind the users at my institution – a Canadian undergraduate university – to copyright laws developed by another nation.  Leaving aside the fact that an interpretation of these laws will be at best imprecise and uninformed because most LIS professionals are not lawyers and most users don’t bother to read an e-book vendor’s TOS, we’ve got a jurisdictional case study that I’m sure no WIPO representative fathomed in 1967.

The eBrary case presents an interesting dilemma in Canada.   Many Canadian Knowledge Research Network consortium members use eBrary to gain access to Canadian primary materials and critical literature.  This means that the Canadian-resident students and staff I serve are accessing Canadian materials through their Canadian university (which is normally subject to Canadian statues), but are bound to a contract framed by foreign law.  How many Canadian LIS professionals are forced to operate merely on the good faith of the vendor in a situation such as this?  Although I have no reason to believe that an organization like eBrary would intentionally place an entire consortia into a situation that could end only in litigation (that would be a complete and utter relationship-destroying measure), this sort of dealing still puts the Canadian LIS professional in a very weak spot.  Although I may know a thing or two about Canadian copyright law, especially as it pertains to fair dealing and libraries, archives and museums, I certainly can’t speak much to US copyright law, and I don’t think the majority of LIS professionals in Canada could, either.

7. Disclaimer of Warranties

THIS WEB SITE IS OFFERED ON AN “AS IS” AND “AS AVAILABLE” BASIS. AS A CONDITION OF USING THIS SITE, YOU ASSUME ALL RISK OF LOSS RESULTING FROM THE USE OF, OR RELIANCE ON, THIS SITE OR ANY MATERIALS IDENTIFIED, LOCATED, OR OBTAINED BY USING THIS SITE. EBRARY AND ITS SUPPLIERS AND LICENSORS MAKE NO WARRANTY REGARDING THE ACCESSIBILITY OF THE SITE OR THE ACCURACY, COMPLETENESS OR TIMELINESS OF THE MATERIALS. EBRARY AND ITS LICENSORS AND SUPPLIERS SPECIFICALLY DISCLAIM ALL WARRANTIES INCLUDING WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE AND ALL CONDITIONS OF QUALITY. NO USER SHOULD RELY ON OR ATTEMPT TO TRY ANY INFORMATION, ACT OR OTHER EVENT PORTRAYED ON THIS SITE. AS WITH ALL INFORMATION AVAILABLE THROUGH THIS SITE, LEGAL, FINANCIAL, MEDICAL, HEALTH, AND SAFETY RELATED INFORMATION IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND IS NOT A SUBSTITUTE FOR ADVICE FROM A QUALIFIED PROFESSIONAL. BECAUSE SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THESE EXCLUSIONS MAY NOT APPLY TO YOU.

This clause should remind us that the texts we read and interact with on eBrary are not our time-worn, dog-eared Penguin’s Classics.  Despite the fact that academic libraries pay tens of thousands of dollars in annual licensing fees to accommodate access rights for their communities, the portal their users must employ to view the text – the web site – is offered “as is.”  If the web site ever crashes, eBrary will not be held responsible.  If the notes and annotations one saves in an account disappears (a slim possibility, I admit), eBrary will not be held responsible.  If one chooses to use an e-book as opposed to borrowing a similar text but the site crashes over the long weekend before a funding application is due, eBrary will not be held responsible.

But perhaps the best part of this disclaimer is the statement that, “NO USER SHOULD RELY ON . . . ANY INFORMATION . . . ON THIS SITE.”  Excuse my excessive use of all-caps for a moment, but I wanted to mimic eBrary’s demand that we acknowledge and understand its blanket concession that its main product (information) and its main service (information dissemination) can ever be relied upon.  Ever.  In an attempt to safeguard itself from ridiculous lawsuits, eBrary has warned us that we can’t trust any of its wares to ever be reliable.  If only i could have put a disclaimer like that on every essay I ever wrote.

Sigh.

[eBrary Terms of Service]