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Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity

Author: Siva Vaidhyanathan
Publisher: New York: NYU Press, 2001
Review Published: October 2003

 REVIEW 1: Laura Kertz

Of course the situation was frustrating, but it was also oddly perfect.

I was rummaging about the Web for background reading on Siva Vaidhyanathan, an Assistant Professor in the Department of Culture and Communication at New York University and author of Copyrights and Copywrongs, published in 2001 by NYU Press, and re-issued earlier this year in paperback. In particular, I was looking for a July 4, 2001, article by the author titled "Why Thomas Jefferson would love Napster." The article was originally hosted on MSNBC.com, but now, two years out, is nowhere to be found. The URL is outdated; the MSNBC search engine doesn't remember it. Google cache turns up empty.

Fortunately, someone has (illegally? [1]) posted a copy of the article to CILUX.net, a strange little domain abounding in philosophical bluster and programmer talk and dedicated to "building the free virtuality." The status of the CILUX project itself is murky, but it appears to be aligned philosophically with Vaidhyanathan's project. The CILUX administrator has posted the Thomas Jefferson article in toto, including an attribution and the following opening note:
    Note: this article is available here, but is copied onto this site to save the reader from intrusive pop-up advertising. Also, given the sentiment of the article and its incongruous host, it may not stay available for long...
The article is a distillation of Vaidhyanathan's ideas on copyright and the Constitution, the foundation of the analysis in his book. The author retraces (as others have [2]) the Jeffersonian and Madisonian approaches to copyright. Madison, who first introduced the copyright and patent clause, supported copyright as an "incentive to create," a deal brokered among the public and authors to ensure production and the free flow of ideas. Jefferson, on the other hand, was skeptical of any provision that smacked of monopoly, bothered as he was by the artificiality of scarcity when applied to ideas. Jefferson analogizes: "He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine receives light without darkening me" (24).

As Vaidhyanathan explains, copyright was a "good deal for democracy" for roughly the first century of American history -- achieving Madison's ends while steering clear of Jefferson's worst fears. We all know the story now, however. Monopoly and artificial scarcity are the rules of the game, and multi-national media conglomerates use copyright as a billy club to quash any practice they presume might threaten profits. It is commonly held that technology simply outpaces the law, and the rapid proliferation of recording technologies -- from the Kinetoscope to magnetic tape -- has repeatedly undermined the validity of a system designed to protect "mere" text. Vaidhyanathan challenges this view and suggests it is a philosophical/political question, not a technological one, and that it entered the debate much earlier on.

Tracing the literary career and political machinations of Samuel Clemens, aka Mark Twain, the author details how the Continental notion of copyright as a property right came to taint the American understanding of copyright as a bargain struck among competing interests. After more than two decades of debate, beginning in the 1880s, Clemens pushed for extension of copyright protection to 50 years beyond the author's death (43-79). (The compromise reached was actually 28 plus a renewal.) Today, copyright extension is a just-in-time enterprise, where the legislature is lobbied to extend the duration just as iconic works are expected to fall into the public domain. The Sonny Bono Copyright Term Extension Act (CTEA), for example, passed in 1998, tacked on an additional 20 years, bringing the duration of copyright protection to the life of the author plus 70, and in the case of corporations, to 95 years from publication date. This ensures, in the words of a member of Negativland, that "NOTHING created in our lifetime will ever reach the public domain."

Vaidhyanathan next traces American copyright through three technological eras, citing in each the inventions, court decisions, and popular sentiments that morphed the debate and describing how "property talk" came to dominate. The golden age of filmmaking, for example, brought a scrupulous review of "derivative works." The idea/expression dichotomy, crucial to Jefferson's point of view, was hashed and rehashed as judges and moguls tried to discern the dividing line (Chapter 3).

The multiply tangled and grafted family tree of American music has provoked similar consideration. The performance and recording of music emerging from a blues tradition, with no definitive author, has emphasized the importance of style, and an elaborate system of mechanical and performance royalties has been fashioned to accommodate [3]. The focus within the recording industry has again shifted, however, from qualitative concerns to meticulously quantitative terms. The explosion of hip-hop culture and music sampling in the last two decades rocked the multiple property strategies and structures formulated thus far (Chapter 4). (The omnipresence of Chuck D and Negativland at media conferences attests to the sustained scholarly interest in the issue.)

Of course Vaidhyanathan's analysis is so rich and his research so encompassing that this synopsis cannot do the arguments justice. The knowledgeable reader anticipates, however, that all of this is background. It is all leading to "the digital moment." Here Vaidhyanathan describes more lucidly and compellingly than any author or speaker I've heard on the subject, how access trumps all other concerns on the copyright debate (Chapter 5).

Quick to resituate the discussion, Vaidhyanathan makes short shrift of the thieving and piracy arguments put forth by big media in structuring the debate: "…[C]opyright issues are now more about large corporations limiting access to and use of their products, and less about lonely songwriters [4] snapping their pencil tips under the glare of bare bulbs…" (12) and explains how hitching digital access (read: complete control [5]) to the already botched notion of copyright as intellectual property spells disaster for the public sphere.

Access controls can take many forms and currently range from encryption technologies (e-books) to database licensing (compiled facts and figures) to region coding (DVDs). The popular sympathy for DVD hackers and P2P networked college students, however, is understandably wan. And even if they serve to indicate staggering inefficiencies in the current system, the thieving analogy remains potent, and big media manages the debate. (Never mind that the recording industry has yet to show compelling evidence of damage; fair use doesn't get a fair shake.) Rather than valorizing another Euro-teen hacker, Vaidhyanathan dislodges the discussion from the entrenched piracy-versus-fair-use standoff by offering a chillingly plausible scenario: the disappearance from the public realm of any and all things wanting in market value.

Already media corporations choose to limit or deny altogether access to older works or works of limited marketability. It is an ominous trend. This spring, the networks chose not to air a debate among Democratic presidential hopefuls. One wonders whether those debates they do air will remain available into the future? And at what price? In the case of software, publishers may choose not to support past or even last versions of products deemed unprofitable or incompatible with long-term strategy; case in point -- Oracle's planned annihilation of PeopleSoft. In the end, media producers may choose not to support or to simply lose track of any form of content for any reason at all. So MSNBC.com is no longer concerned why Thomas Jefferson would love Napster; does that mean no one else should be either?

The end result is the gutting of the public domain.

And that's why arguments like Vaidhyanathan's are so important. They actually complement a larger body of thought on the topic, and in the end open a new front. Current thinking tends to fall out into three categories: the technical, the legalistic, and the ideological. Lawrence Lessig is no doubt leader of the technological camp. His 2001 The Future of Ideas explores in a rigorously technical manner how control at various levels of a network can either bring balance or utterly muck up the works. Lessig is also closely allied with those waging legal battles. His defeat in the Eldred Supreme Court case was a blow to the larger community of activists working in this domain, including organizations like the Electronic Frontier Foundation (EFF). Meanwhile David Bollier's stunning Silent Theft: The Private Plunder of Our Common Wealth describes how a ruthlessly perverted market ideology has brought about the current system where corporate interests are permitted, even encouraged, to plunder the public domain -- and further how an equally compelling ideology supporting and sustaining a true "commons" is the only possible counter [6].

Each of these tacks offers a valuable perspective. Vaidhyanathan, however, as a cultural historian, adds several important notions to the mix. What follows is only a sampling:
  • The belief that there is value in our culture and our shared cultural expression. So many of us live as cultural refugees, eschewing the latest boy band single and trying to escape cable news. From such a perspective, it can be difficult to mount a serious defense of our cultural commons. Vaidhyanathan's spellbound description of Herbie Hancock's "Rockit" (149-152) and his ode to Martha Graham (epilogue) are the perfect tonic. And his apparent belief that there is something worth saving -- a collective creativity -- is an indispensable component of the defense.

  • Frankness. Vaidhyanathan is not susceptible to dogma. In defending his arguments, he's not afraid to point out that the landmark 2 Live Crew recording of "Pretty Woman" is somewhat less than inspired (145–158). He points not to the genius of the song itself, but rather to its role in safeguarding parody. Nor will he whitewash the Clinton administration's deplorable record on copyright issues. He recounts the horrors in a section called "Four Surrenders" (159-160).

  • A willingness to put post-modern thinking to work. It's tough to talk about media, sampling, and recording in a scholarly work without trotting out a bit of pomo philosophy -- even if only to disparage it. Vaidhyanathan adeptly and with mercy describes the relevant concepts (especially the contested notion of the author and authorship) and then makes use of the useful and discards the rest. Barthes comes out OK. Even Foucault is none the worse for wear (8-11).

  • A deep understanding of an American experience. Perhaps the most valuable contribution from this book is the exhaustive research, which exposes the problem at hand as a uniquely American one. Not limited to a simple retelling of landmarks in American jurisprudence, Vaidhyanathan describes the emergence of a publishing industry in a nation that has essentially started form scratch. He describes a beloved American author (Mark Twain) who "borrows" stories from former slaves (65-66). American industry and tomfoolery are at work throughout the account, and this lends extraordinary richness to the analysis. (For instance, Vaidhyanathan introduces the notion of copyright poor versus copyright rich, and the road many have traveled from one to the other (chapter 3).)
I would have liked to see more, however, of the author's analysis of race. Vaidhyanathan ably address injustices that have thus far been fairly well publicized, especially the tendency of white artists to copyright works that spring from a black folk tradition -- including stories, lyrics, and musical structures long in use. He also somewhat meekly rehashes Zora Neal Hurston's ideas about mimicry (13). And while Vaidhyanathan takes pains to examine the centrality of African American and more recently Afro-Caribbean culture within American popular culture, this is not, however, his focus (chapter 4). A book examining race more directly would be a very different undertaking, but a welcome one. I suspect it may actually have been closer to Vaidhyanathan's original project. Whatever the merits of this latent project, Copyrights and Copywrongs itself is a strong and valuable contribution.

For his next book, Vaidhyanathan turns his attention to peer-to-peer (P2P) and the havoc these networks are wreaking. It's a story that, even as it unfolds, is begging for a retelling, and Siva Vaidhyanathan is surely up to the task.

1. The author devotes significant space to sorting out copyright myth from reality. He addresses the idea of "plagiarism" (115-117) and examines the liberties groups like Major League Baseball take in proclaiming their rights (17).

2. See, for example, Lawrence Lessig's The Future of Ideas.

3. For a pie-chart description, see "How Music Royalties Work." For a case study, see Steve Albini's "The Problem with Music."

4. If you haven't read Albini's "The Problem with Music" yet, read it now.

5. See Lessig's The Future of Ideas for more.

6. Bollier's overview article, "Reclaiming the Commons," published in the Boston Review, has disappeared from its original URL. It is reposted at CommUnity of Minds.

Laura Kertz:
Laura Kertz graduated in 2002 from the City University of New York Graduate Center. Her Master's thesis examined media deviance, contrasting the obscenity wars of print and broadcast with the suppression of DIY technologies in the digital age. Laura begins work on a PhD in computational linguistics at the University of California, San Diego, this fall. She reviewed Steven Johnson's Emergence: The Connected Lives of Ants, Brains, Cities, and Software for RCCS.  <kertz@earthlink.net>

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