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Copyright and Culture: Newly Enemies

| 7 Comments

The problem faced by this documentary film is common to all such works - which, unlike newspapers etc., must secure permission to quote when it uses news film clips, etc.

"[The series Eyes on the Prize] is no longer available for purchase. It is virtually the only audiovisual purveyor of the history of the civil rights movement in America. What happened was the series was done cheaply and had a terrible fundraising problem. There was barely enough to purchase a minimum five-year rights on the archive-heavy footage. Each episode in the series is fifty percent archival. And most of the archive shots are derived from commercial sources. The five-year licenses expired and the company that made the film also expired. And now we have a situation where we have this series for which there are no rights licenses. Eyes on the Prize cannot be broadcast on any TV venue anywhere, nor can it be sold. Whatever threadbare copies are available in universities around the country are the only ones that will ever exist. It will cost five hundred thousand dollars to re-up all the rights for this film."

Larry Lessig sees this as a larger problem, and I think he's right...

As our sources become more digital, and more multimedia, we're going to encounter this problem more and more often. And right now, the law is a serious hindrance to transmitting history and culture to new generations:

"Whatever your view of it, notice first just how different this future promises to be. In real libraries, in real space, access is not metered at the level of the page (or the image on the page). Access is metered at the level of books (or magazines, or CDs, or DVDs). You get to browse through the whole of the library.... This freedom gave us something real. It gave us the freedom to research, regardless of our wealth; the freedom to read, widely and technically, beyond our means. It was a way to assure that all of our culture was available and reachable - not just that part that happens to be profitable to stock. It is a guarantee that we have the opportunity to learn about our past, even if we lack the will to do so. The architecture of access that we have in real space created an important and valuable balance between the part of culture that is effectively and meaningfully regulated by copyright and the part of culture that is not.... We are about to change that past, radically.... And what this means, or so I fear, is that we are about to transform books into documentary films.... Or more simply still: we are about to make every access to our culture a legally regulated event, rich in its demand for lawyers and licenses, certain to burden even relatively popular work. Or again: we are about to make a catastrophic cultural mistake.

...we cannot rely upon special favors granted by private companies (and quasi-monopoly collecting societies) to define our access to culture, even if the favors are generous, at least at the start. Instead our focus should be on the underlying quandary that gives rise to the need for this elaborate scheme to regulate access to culture.... The solution is a re-crafting of that law to achieve its estimable objective--incentives to authors--without becoming a wholly destructive burden to culture."

Which has enough transmission problems already...

7 Comments

"The solution is a re-crafting of that law to achieve its estimable objective--incentives to authors--without becoming a wholly destructive burden to culture."

Lessig, like so many of his acolytes, takes a utilitarian view of intellectual property, which completely ignores its moral basis: that I have ownership of the fruits of my own mind, of my own creative endeavors. It is a right that stems from the truth of self-ownership (the source of all property rights), and it is inviolate.

Anyone who deploys framings such as "burden to culture" is ultimately making a greater-good argument. And like all greater-good arguments, it's a threat to individual sovereignty.

Lessig is no more owed "freedom" to the works of other human beings than he is owed the keys to their homes. He can write as many heart-swelling tributes to "culture" as he wants; it doesn't change that.

Lessig, like so many of his acolytes, takes a utilitarian view of intellectual property, which completely ignores its moral basis: that I have ownership of the fruits of my own mind, of my own creative endeavors. It is a right that stems from the truth of self-ownership (the source of all property rights), and it is inviolate.

Here's the problem with this nonsense. What you are claiming is a legally created monopoly. The only way for you to "have ownership over the fruits of your own mind" is to deny me the fruits of my mind. Somehow, in your utopia, somehow you can claim ownership over my opinions by saying, "I said that first." That's ludicrous.

Property, necessarily, can only refer to physical things in natural law. Property exists because of scarcity. If I repeat your idea, you still have your idea. There is no scarcity. You wish to create scarcity by denying me the right to do as I wish, even though you still have "the fruits of your own mind" after I have done it.

Lessig is no more owed "freedom" to the works of other human beings than he is owed the keys to their homes. He can write as many heart-swelling tributes to "culture" as he wants; it doesn't change that.

He is claiming nothing of the sort. What you are claiming is a right to tell someone, "you can't lock up your home unless you pay me, because I locked up my home first. If everyone locks up their homes, then I lose my special advantage of being harder to burgle, so you are harming me by making yourself more difficult to burgle too." And it's nonsense both ways.

What you are claiming is a legally created monopoly.

I claimed nothing of the sort. I'm an anarchist. I don't want "legally created" anything.

(Albeit I should have been more clear that I was specifically addressing copyright, the topic of Lessig's piece.)

Now, I can conceive of no practical enforcement of copyright in a stateless society. (Doesn't mean there couldn't be one; who knows. It's simply that I can't conceive of one and don't care to bother.) But that has nothing to do with morality or my point about Lessig's framing, which is all my comment was about.

And copyright is not about ownership of "ideas."

And scarcity is not why property is property; or more accurately, why ownership is ownership.

nowandagain has the moral basis exactly backwards.

The original copyright act of 1790, the act written by the authors of the Constitution, only protected books, maps and charts; works that satisfied the Constitution's exact wording -- to promote the progress of "science and the useful arts". The phrase "useful arts", although out of use, has a specific meaning -- works dealing with science, manufacture, animal husbandry and the like, as well as maps and navigational charts. The antonym of this phrase was the "fine and performing arts." The framers specifically did not allow copyright for paintings, drawings or music because the constitution does not authorize copyrights on works of fine or performing art, only the useful arts. It was intended to advance scientific knowledge by promoting disclosure of scientific and practical information, not to provide lifetime benefits to the ancestors of artists.

So much for the "moral basis" for copyrights on works of entertainment.

What's the problem? Amazon.com has the complete DVD set from five different sellers for $380-$400. If you'd rather pay only $250, go to http://www.pbs.org/wgbh/amex/eyesontheprize/ and click "DVD for educators". If they ask, you're planning to donate it to a school after watching it.

The problem, Dave, is the level of effort and difficulty required to reach that point, which all but ensures the loss of many non-paper documentaries due to copyright.

the problem is that the reasonable "fair use" provisions of print don't apply here.

That isn't a greater good argument. That's an argument that traditions which have served us very well in our standard medium have seen major exceptions in a new medium, thanks to public policy rent-seekers (trans.: parasites/ chiselers). And that needs to be fixed, before they have detrimental effects.

Now, if you think Lessig's solution is equally a rent-seeking fail, justified by "greater good" rhetoric... well, ok, have at it in specifics. But his formulation of the problem is no such thing.

I think the Internet will take care of a lot of these problems.

One has no rights that cannot be policed and I doubt that any media that can be digitized will be able to build a wall around their "Intellectual" property that the courts will care to defend as more and more technology erodes the protection, such as Bit Torrent, and every person on earth realizes that they are their own broadcast network.

The destruction of the Old Media has just begun and the time Courts have is limited.

For Example, when I went to College, there was a new technology I used that after using it and before I left the library I had to sign a document that I would not use the product of that technology to violate the rights of the copywright holder. The Technology:

A Xerox Machine

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