In December of 1984, John Fogerty, former front man of Creedence Clearwater Revival, released a single called "The Old Man Down the Road." The song was part of the album "Centerfield," the eponymous song now being a standard part of American Baseball, practically on a par with "Take Me Out to the Ball Game." "The Old Man Down the Road" would be just another solid "roots influenced" song from Fogerty were it not for the bizzare sequel to the release of the song.
In Februrary 1985, Fantasy Records sued John Fogerty for copyright infringement. The claim? That "The Old Man Down the Road" copied another song, "Run Through the Jungle." Who wrote and performed "Run Through the Jungle?" John Fogerty. Fogerty found himself in court having to defend himself against a charge of plagarizing... himself.
Follow me through the looking glass....
There have been a number meta diaries lately, including a very important one from kos himself, about copyright and what one can do on a blog. Kos is completely right to stomp out and to insist that participants here on Daily Kos not post infringing content. I'm not here to debate that. There is no debate.
But I am here to question whether or not the law with which Kos is forced to comply is even sane, let alone reasonable. In doing so, I will not violate the law, but I will certainly question whether or not that law is in line with original purposes (now who sounds like a strict constructionist?).
The bizzare case of John Fogerty being sued for copying himself is just an excellent way to get in to the topic. Because Fogerty didn't sue himself (obviously). Fantasy Records sued him. Because Fanatasy Records owned "Run Through the Jungle." But how can one "own" a song?
As Thomas Jefferson himself put it (in this oft quoted passage from one of his letters):
Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. 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. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.
The above is from a letter from Thomas Jefferson to Isaac McPherson discussing the so-called Copyright Clause of the Constitution. You may read the entire letter here and it is well worth your time.
So how did we come from this opinion of one of our "Founding Fathers" to a state of affairs where an artist could reasonably be sued for sounding like himself?
It has been a steady progress and it has, in each case, been advanced by the creation of some new technology.
The first such invention was the printing press. Prior to the printing press, no one worried about "illegal" copying. The idea didn't even exist. It was virtually impossible to copy a work of representational art, and the biggest favor you could do a writer would be to copy his book out longhand. That way there would be one more copy in existence! A most estimable gift indeed when hand copying was the only way.
But along comes Johannes Gutenberg and his "movable type" printing press. (Printing as a basic technique had been around for quite a while. Joe's great innovation was to make all the stamps for all the letters the same size so that one could select letters to spell out any given page and since each was interchangeable, you can print any text you would like by simply "compositing" it. Prior to this, any printing was done by carving the entire desired image or text "en bloc," on a single page-sized stamp. Like all the truly great inventions, movable type is totally obvious, at least in retrospect.)
With printing came the obvious consequence of a massive increase in the number of books in existence, along wiht the obvious consequence of a dramatic decrease in their price. So, too, same the slightly less obvious consequence of a dramatic increase in literacy.
Totally unforseen was the dramatic increase in writing as an activity. Writing began to emerge as a trade. People began to write on all subjects, and they began to criticize and correct ancient knowledge that had been treated reverentially, unquestioningly, in no small part because prior to printing, the ability to read and write was an almost magical ability, belonging to a select few.
Over time, an industry of "publishing" began to emerge, led by such pioneers as Aldus Manutius. In England, many rival printers and publishers were churning out books. And to the frustration of both the publishers and writers, they were freely and rampantly copying one another.
Now, before we get in to how the law reacted to this, it is important to note that this is the greatest moment of creativity in the history of the English language. The writers of Elizabethan England were not just writing with words, they were inventing words, playing with words hand over fist. This is also where English gets some of its most interesting spelling, because sometimes a page of text would use too many of a particular letter or letters, and so some less-used letters would have to be substituted. We get some of our interesting uses of "gh" in English out of this.
Still, back to the authors and publishers. They managed to persuade Parliament to pass The Statute of Anne, the very first law granting any sort of "ownership" on culture.
For things like the plastic arts, ownership was obvious. It was no different to any other tangible property or chattel. If an artist created a work for himself, it was his. If it was created for a client or patron, it belonged to who paid the artist for the work. There was no need to treat such "culture" as distinct from any other personal property.
For a book, at least prior to printing, the book was very much the property of the possessor, and allowing it to be copied in no meaningful way degraded the value of the original, so copying was not an issue.
For performance art, such things were regarded as ephemeral. Even in the age of Shakespeare and Bacon, the prining of plays was not seen as taking any value. Being paid for the performance was what mattered.
Okay, so the thrust of The Statute of Anne was that existing works would get a 21 year protection, and new works would get a 14 year protection.
(At this point, I am going to ask if your are interested in the complex details of "rights" in publishing as they followed the Statute of Anne, I am going to refer you to Lawrence Lessig's excellent, and freely available online, book Free Culture chapter six in which he explores the complexity of what followed that original law. It is not necessary to cover that to follow the gist of my argument.)
Fast forward 77 years to the adoption of the Constitution of the United States of America. Yes, just 77 years separate the first piece of intellectual property law in the Western World from the adoption of our present system of federal government.
The quote from the Jefferson letter above was part of an exchange discussing the inclusion and exact wording of the Copyright Clause of the Constitution. I know I linked it above, but it is so small and simple that we might as well quote it right here:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
You may have noticed that this is not a complete sentence. That is because it is part of a list of powers enumerated as belonging to Congress. If you need complete sentences, prefix the quote with "Congress shall have the power" and your inner grammar scold will be placated.
The Constitution was adopted in 1787. Given the speed with which C&D letters are written and the way DVDs are prefixed with little anti-"piracy" movies (not mention the way Jack Valenti describes kids copying movies and songs as "terrorists) these days, we can be sure that writing intellectual property statutes must have been one of the first things on the minds of the fledgeling nation's legislators.
Well, not so much. They didn't even bother to write any law on the subject until three years later, in 1790. The Copyright Act of 1790, while two full pages in length, grants essentially identical protection to The Statute of Anne.
This law (and this is based on my use of Google, not on deep legal scholarship, so the many of you who know more than I, please leap on in to correct me) sufficed as it was (with state laws also having an effect) until The Copyright Act of 1909. For my argument, the key feature is the extension of term from 14 years to 28 years with an optional renewal of another 28 years.
This law also lasted a long time, until yet another set of "disruptive technologies" emerged. This time, the disruptive technology was tape recording. In 1976 the biggest concern was making tapes of record albums, but video recorders for home use were on the market by this time. These technologies allowed the copying of recorded music with much the same ease and low cost as printing permitted for books (oh yeah, let us not forget "Xerox machines" which were also addressed by this act). In fact, lower cost and greater ease than printing.
This act codified a concept that already existed in case/common law known as "fair use." I believe (again, legal scholars correct me) that this act also formally superceded all state law on the subject.
The Copyright Act of 1976 (note I have to switch to a Wikipedia link because this is now a modern and fairly humongous piece of legislation avaiable online only in sections) covers a lot of ground, but for my purposes the most important feature is the change from a 28 year term with an optional 28 year extension to a "lifetime of the author plus 50 years" term plus a new period of protection: a fixed 75 year term for anonymous works and works "for hire." Works for hire would be those owned by corporations instead of individuals. This is the first time that concept exists in statute in the US! (Again, IANAL. I assume that there already existed case/common law on corporate ownership of culture).
Bear in mind the intent that I, at least, believe was present in the Copyright Clause, namely that the purpose of the protection is "To promote the Progress of Science and useful Arts." The protection is encourage the production of culture. But another key phrase, "for limited Times," gives us another glimpse of intent: the protected culture produced is intended to become common property. Link this with Jefferson's letter and you see that "our Founding Father's intent" was unquestionably to promote the production of culture and to ensure that all the people would be able to use it as they choose.
Now, without going into the details of The Berne Convention, or The Digital Millenium Copyright Act, both of which have many provisions I do not agree with (but continue to respect, as they are law), I pass on to The Sonny Bono Copyright Term Extension Act.
This act increases the term of copyright protection to lifetime of the author plus 70 years, and of works for hire to 95 years. The effect of this is such that no work of culture produced during a person's lifetime will be available to him or her for common use. To my way of thinking, this is in direct conflict with the intent of the Copyright Clause. Moreover this extension, and that offered by 1976 statute, were retroactive. Meaning that works already produced (that were not yet out of copyright) had their terms extended. This led to the Sonny Bono act being cynically, but seriously referred to as "The Mickey Mouse Protection Act."
In my humble opinion, retroactive extension is entirely outside the intent of the Copyright Clause, since it not only moves the "Limited times" out well past a human lifetime, but since the purpose is to promote the creation of works, any work already existing cannot, I think it can safely be said, be created again.
The sole purpose of retroactive extension is to protect an economic interest in the work. To make, in a phrase, culture into real estate.
I am a published author and a software engineer. Both my English works and my software are protected by Copyright Law. I believe in the concept of intellectual property law, but only to the extent that it serves the purpose embodied in the Copyright Clause, to promote the production of culture.
When the sole reason for extending the ownership right to something that is "naturally" held in common is to make more money, I think it harms and holds back the culture. New works could be created from old. Books, plays, movies and TV shows of limited audience and of interest only to narrow groups that are out of print and unavailable because it isn't economic to reprint them could be made available electronically, for free except for the fact that copyright clearance is difficult or even impossible to obtain. Our culture is not only becoming real estate, but many worthy works of narrow interest are becoming slum properties, rotting to dust, lost in the seldom visited stacks of obscure libraries. Who knows what might happen, what new thoughts, what new ideas might be generated if these unavailble ideas and works were brought out and made available to minds of the living?
The conversion of culture to real estate is a real social, moral and political issue. And it is one in which I wish more Americans would take an interest. It is not a matter of "pro-property" and "anti-property." As Lawrence Lessig puts it in "Free Culture:"
The battles over copyright and the Internet seem remote to most. To the few who follow them, they seem mainly about a much simpler brace of questions—whether "piracy" will be permitted, and whether "property" will be protected. The "war" that has been waged against the technologies of the Internet—what Motion Picture Association of America (MPAA) president Jack Valenti calls his "own terrorist war" — has been framed as a battle about the rule of law and respect for property. To know which side to take in this war, most think that we need only decide whether we’re for property or against it.
If those really were the choices, then I would be with Jack Valenti and the content industry. I, too, am a believer in property, and especially in the importance of what Mr. Valenti nicely calls "creative property." I believe that "piracy" is wrong, and that the law, properly tuned, should punish "piracy," whether on or off the Internet.
But those simple beliefs mask a much more fundamental question and a much more dramatic change. My fear is that unless we come to see this change, the war to rid the world of Internet "pirates" will also rid our culture of values that have been integral to our tradition from the start.
These values built a tradition that, for at least the first 180 years of our Republic, guaranteed creators the right to build freely upon their past, and protected creators and innovators from either state or private control. The First Amendment protected creators against state control. And as Professor Neil Netanel powerfully argues, copyright law, properly balanced, protected creators against private control. Our tradition was thus neither Soviet nor the tradition of patrons. It instead carved out a wide berth within which creators could cultivate and extend our culture.
NOTE: Footnotes were removed from that quote.
This is a stealth issue. But it is a fundamental one. Who owns a society's culture? Is it subject to ownership? Or does it belong to the people in common? If I walk along humming a tune, am I stealing from the composer? Am I stealing from the coporation who owns the copyright? It is, after all, a small, small world. ;-)
Finally, a small link collection:
The works of Lawrence Lessig, Stanford Law Professor and author of several books on these topics, including the freely available Free Culture
The philosophy of the GNU Project, which is the concrete implementation of the ideas of the innovative (and dare I say iconoclastic?) Richard Stallman, the man who more than other is to be credited (or blamed) for the new thinking about Intellectual Property.