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At the Blog Indiana 2008 conference,
speaker Andrew Paradies led a
session on Legal Issues in Blogging. We covered
disclaimers, copyright, fair use, defamation
and attribution. We discussed libel, slander, and free speech. We ran over the time
and wandered outside to swap stories about the screeching 21st century
collision of information and the law. In summary: everything is insane.
Article I, Section 8, Clause 8: “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”
This is an inevitable outcome of the fundamental nature of information, which abhors
containment. You can’t unsee a picture or force yourself not to remember a phrase. Once
you release a copy, or even something that can be copied, you have lost all
control. Anyone who possesses your content can duplicate, share, repurpose or even
resell it to others. This is often illegal. The Internet has made it much worse.
Important but Silly Laws
The entire field of copyright is based on the idea that people who create information
should have the privilege to control the life of that information, at least for a
limited period. This gives artists an incentive to become popular, because one catchy
tune can make millions through royalties. The law gives all the power to the content
creator.
Unfortunately for legislators, copyright is practically impossible to enforce.
No one can see you photocopying magazine articles or recording your favorite TV
program. Forward a hilarious photo via email, and the original photographer
earns only anonymous fame. Cut-and-paste some text from a website and publish
it on your own, and the writer is likely to never find out. It's easier than ever
to violate copyright. That's because it's a law attempting to contain the
uncontainable. Human laws can't trump the laws of nature.
Technical Solutions
One of BlogIndiana's sponsors is a company desperately trying to battle this problem
on two fronts, both by outfoxing the enormous stock/fine art photography warehouses
and by connecting artists direct to publishers. Using Photrade, a picture of
looming cat might be sold to a random blogger, graphic
designer, or ad agency for a few bucks. The hope is that this will engender a new
respect for copyright built around the community of regular folks. For this to work,
people will need to abandon the absolutely free (but sometimes unenforceably illegal)
resources like Flickr and
Google Image Search.
This won't be an easy sale to make, as it's still a ton easier to right-click an image
than it is to stumble through an ordering process, key in your credit card number and
follow the precise attribution requirements laid down by the creator. Ease of use
reigns supreme.
The Internet, of course, wasn't built to protect copyright holders or even to
demonstrate authenticity. It's just a wildly adaptable medium for exchanging
information, and if the legal constraints on that data are misconstrued, mangled, or
forgotten in transit, recourse exists only outside of cyberspace. This problem is not
new—just astronomically amplified by the speed of electronic messaging. It was
always impossible to tell who said or did something first, or whether a work was real
or a forgery. The Net makes the messiness of intellectual property a billion times
more apparent.
Dangerous Thoughts
Don't read this section if your ire is readily aroused. Copyright is partially about
control, so that an artist can prevent a hack from producing an insipid, campy sequel
to his life's work. But mostly, copyright is about money. Some content creators feel
they deserve to be paid, not so much for working, but for others experiencing
their work. That's why actors and authors and scriptwriters seek out royalty deals, so
that their wealth grows in proportion to their popularity. If you control the copies,
and everyone wants one, you can get rich.
This model assumes that the value provided by the creator is not embedded in the
work, but in the people who enjoy that work. This is wholly inconsistent with
everything else in life. You don't have to pay a licensing fee to the builder of
your house for every guest at your annual holiday party, or to the publisher each time
you prepare a recipe from a cookbook. A potato chip fryer can recommend against eating
the whole bag in one sitting, but cannot reasonably forbid you to do so as part of the
terms of sale. Our society is based on paying people for working, not paying them at
some later date based on usage statistics. Selling a product means accepting that the
buyer has the right to use the product as they wish.
Noting the nature of information is bad news for artists who starve through long
periods of production and then see enterprising distributors profit from their
work. It's tempting to think that if the arthouse makes money on every print,
the photographer should earn a cut, since they had a major role in taking the
award-winning image. But by this logic, doesn't the camera manufacturer deserve a
fraction, as well as the owner of the backdrop and the teacher who instructed the
artist? When a photographer requires her luscious young model to sign a release
form, does that not deprive the smooth-skinned beauty of her fair share of
success of the photo? A chain of control ends at two places, with some creator and
some consumer who lacks the resources and legal team to extend copyright to their
own advantage. The revelation is profound. There is no chain.
Asides in Copyright Law
No essay on the bizarre nature of intellectual property should fail to
mention the bombastic discourse on this topic taking place in our connected
world. There's the mind-bending Supreme Court case of Eldred v. Ashcroft, where the government upheld four
decades of copyright extensions, effectively demonstrating that works would
never pass into public domain again. Disney, for example, could rework 19th
century fairy tales into animated films, but these films are forever protected
from such derivative works. There's the work of Creative Commons and the Electronic Frontier Foundation, who are embroiled in
a fight to define what copyright means in the digital age and how to help everyday
people mark content and respect the law. The Free Software Foundation supports a whole family of
licenses broadly (and cheekily) termed "copyleft", which are designed to protect
the rights of the recipient to use and extend information in any way they see
fit. The complexities of law, data and commerce will reduce even the most avid
researcher to bouts of frustration. The desire to strictly control actions is
incompatible with the uncontainable nature of raw information.
For Us, The Users
Attendees at the BlogIndiana conference, content creators, message board
junkies and everyday users of the Internet are deeply affected by the
looming problem of copyright, but as only as much as they choose to be aware
of it. Every quoted word, every forwarded email, every snippet of code or
software program and every funny image snatched and sent along is subject
to a growing body of law. The legal infrastructure and the culture are engaged
in a horrendous battle based on individual desires. Bloggers will tear you down
for stealing their content but users will mod you up for posting a quality
piece, no matter the source. The lawyers will argue all sides at impressive
hourly rates. The right answer is both elusive and clear. We love that
content is free, but we sometimes wish it wasn't.
As for this writer, I have long abandoned the belief that I control the fate
of my work. When words escape my mind to appear on your screen, they come
equipped to be repurposed for any intention. My vanity demands that my byline
remain forever intact and that any use of these ideas be subject to my magnanimous
approval. This is a base desire in conflict with the profound and fundamental
goal of the essay: to inform and inspire through a concert of words, the least
of which should be those in my name.
Go forth and do as you desire. Read, share, copy, rewrite and mash-up.
Steal or cherish. Dispute or disdain. These words are now yours and
everyone's.
Further Reading:
Would you like to leave a comment?
Read this.
###
Authors, singers, software developers and journalists might be
responsible for making cool stuff, but it reaches the
buying public through massive distribution networks. The popular
notion is that these middlemen are money-grubbing fatcats who overcharge
consumers and abuse artists. Whatever their business practices, it
is these publishers who fight to maintain copyright. Songmakers and
lawbreakers are trapped in between.
