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.
I’m reading Lawrence Lessig‘s Remix for the first time and it’s a thrill. Frankly, it makes me want to pursue doctoral work in information culture and the information society – a thought I’ve flirted with for a number of years.
Something that struck me about fifty pages into Remix is Lessig’s contemplation on the nature of fair use and citation with books versus the nature of copyright infringement with other media. Lessig notes that in literature, academics, and to a certain extent, law, people are expected to borrow and acknowledge other people’s works; the citation serves to create a thread that connect similar ideas to one another. The example he uses is the production of an English essay on Ernest Hemingway’s For Whom the Bell Tolls, where:
citation is required. But the cite is always sufficient payment. And no one who writes for a living actually believes that any permission beyond that simple payment should ever be required. Had Ben [Lessig’s friend, a former English major and now an attorney] written the estate of Ernest Hemingway to ask for permission to quote For Whom the Bell Tolls in his college essays, lawyers at the estate would have been annoyed more than anything else. What weirdo, they would have wondered, thinks you need permission to quote in an essay?
Lessig, L. (2008). Remix. New York: Penguin. p. 53
But on the following page, Lessig asks us to consider how the act of citing the text of For Whom the Bell Tolls differs from citing, quoting, or referring to Sam Wood’s filmed adaptation of Hemingway’s book: in today’s DMCA culture, permission would have to be sought from a film company for anyone to “use” a clip. This entire passage struck me because just last week I had written commentary about labor rights in a personal blog after reading John Steinbeck’s The Grapes of Wrath. I included in the post a quotation from the book – Tom’s famous “I’ll be everywhere” speech, followed by YouTube clips to the Ford filmed adaptation, and to Bruce Springsteen‘s and Woody Guthrie‘s songs about Steinbeck’s character, Tom Joad. I knew I was likely violating some sort of DMCA regulation even though my post could probably be considered Fair Use (it certainly would be considered Fair Dealing in Canada). I was aware of this while I wrote a proper citation for each work. And I was aware of the fact I might be DMCA’ed not only for the film clip (a “remix” Ford probably secured rights to), but also for the Guthrie and Springsteen clips (where it’s questionble if either performer ever asked Steinbeck or his estate for permission to use the text). In short, I can cite Steinbeck’s book with ease, but my ability to use these clips might be trumped by corporate rights-holders through the DMCA, even though my reasons for doing so – academic, critical, and commentary – would be considered fair use, even though the content in these clips is not necessarily “original”, and perhaps most important, even though the artists who produced this now-protect content did not not always seek permission to create their own adaptations, derivations, or remixes.
Lessig’s friend’s essay on Hemingway and my compilation of clips inspired by Steinbeck are great examples of what Lessig would call “remix culture”. The legal manouvres made by the producers of these clips to ensure copyright protection, meanwhile, are great examples of everything that’s wrong with copyright law today. Fair Use deems it okay to cite from a text, but the MPAA and the RIAA, through the DMCA, would trump Fair Use and demand that I take down these YouTube clips because I never secured permission – even though they are excerpts of cultural products that are remixes or adaptations of a wholy different and antecent cultural product. The MPAA and the RIAA might claim that I am infringing on their copyright to Springsteen’s “Ghost of Tom Joad” even though Springsteen was inspired by (or to use the rhetoric of the day: pirated) the works of another.
Why is our relationship with books difference than with all other media? By studying Lessig’s quotation above, we can see that some of it lies in two areas, value and purpose, and they are closely related to one another:
On Value – Lessig frames this as “payment”. The citation his friend Ben makes to Hemingway’s text is not only an acknowledgement but a transaction of cultural or intellectual value. Ben saw enough importance in Hemingway’s work to tell his readers that his own ideas were inspired by it. It also creates a cultural and informational chain that links the consumers of Ben’s work to Hemingway’s book, which in this case is the “original” text. But as Lessig later writes, since the value transaction Ben makes is not financial, his fair use of the work, his essay, and the citation is generally a non-issue to DMCA rights-holders.
On Purpose – Lessig makes clear in this paragraph that no lawyer would care about a silly permission when Ben wants to cite Hemingway’s work for an essay. Things are different, however, when the object of the remix / cultural adaption / reproduction has discernable commercial purposes. In my Steinbeck example, John Ford ostensibly secured the rights to adapting The Grapes of Wrath because his art’s mode of transmission (i.e., film) created a financial model that would benefit many others. Perhaps Bruce Springsteen should have sought permission because his “remix” of elements of Grapes, “The Ghost of Tom Joad“, might have commercial value (see above), but I imagine The Boss didn’t bother because his song is written and performed in a folk tradition that often eschews the merits of capitalism.
Before I get ahead of myself, let me state that Lessig isn’t foolish enough to propose that the production of art should be divorced from the economic engines that drive it. After all, there are fundamental differences between the economic value of an undergraduate essay or scholarly article and that of a motion picture or song. Lessig’s anecdote reminds me, however, that copyright law and copyright enforcement as it exists today not only protects the interests of the copyright holder (instead of the creator). And furthermore, copyright law is the de facto piece of legislation that regulates society’s relationship with culture (Lessig, 2008). Something is wrong when I can’t talk online about how a book, its filmed adaptation, and songs derived from its main character, affect me without first securing the permission of rightsholders, especially since the Internet has become the dominant form of communication in western society. There is something wrong because regardless of the cultural work’s mode of transmission:
my consumption of it affects me so that my discussion is not wholly about the cultural product but about how I have interpreted the cultural product, and,
any ecomomic model that demands constant permission from consumers to so much as talk about a product is rotten at the core.
Imagine having to call Atlanta every time you want to talk about Coca-Cola, Santa Claus, Polar Bears, and the business’s beautifully produced Christmas commercials. That is not a recipe to control the the Coca-Cola brand and product – it’s a method to destroy any good will the company has with its consumers. Although my first point is more important to me, I honestly have never been able to figure out why members of the MPAA or RIAA would carry on their ridiculous DMCA business on account of the second point, which is directly related to their ability to remain a going concern. Creating barriers between the consumer’s ability to interact with your product is a sure-fire way to drive the consumer away from what you’ve got to sell.
For whatever reason, I can quote from Steinbeck’s book without any threat of litigation, but the moment I quote visually from Ford’s adaptation, I better be prepared to deal with a DMCA violation warning. This may be one of the reasons why Lessig wants the world to open its eyes to the control that culture producers have over the consumer’s ability to interact with a cultural product. It’s moved well beyond the point of restricting some people (i.e., culture pirates) from intentionally stealing cultural products. At this point it about controlling the way that all consumers actually consume a work, right down to watching it, reading it, listening to it, and then talking about it. It’s no longer about the regulation, protection and control of the cultural product. Now, it’s an unfair regulation of our lives.