Digital Rights Editor: Michael Lesk, [email protected]

Copyright and Creativity

n his new book, Free Culture (Penguin Press, 2004), Larry ate anew or to adapt earlier work. Any theatre producer will tell you Lessig of Stanford Law School presents an excellent explana- that it’s easier to sell tickets to a new version of Hamlet or Don Giovanni, tion of law’s effect on creativity—and of large cor- whether set in a Mafia family or a cheese factory, than to find patrons porations’ effect on copyright law. Lessig is well known as the for a new play or opera. Salvador I Dali wrote in his autobiography, founder of (www.creativecommons.org), Dali by Dali, “Those who do not want to imitate anything, produce MICHAEL LESK the opponent of copyright term ex- book is the extent to which new cre- nothing.” Yet, supporters of the Rutgers tension in the 2002 Eldred v. Ashcroft ativity depends on earlier work. A Recording Industry Association of University suit before the US Supreme Court, Platonist, of course, would say that America (RIAA) suggest it is a and a leading advocate of a larger we invent nothing; we only remem- higher form of creativity to produce . ber things and adapt them. Many something completely new. They Free Culture covers the history of great creations are indeed derived might quote Ralph Waldo Emer- copyright and its expansion from from earlier works. Beethoven wrote son’s Self-Reliance: “Insist on your- books to music, pictures, and videos, some variations on Thomas Arne’s self; never imitate.” (Of course, if it as well as its extension from 28 to 95 Rule Britannia, others on a minor weren’t for and the expira- years. The book is remarkable be- work by Anton Diabelli, and still tion of copyright terms, they might cause—unlike the vast majority of others on “God Save the King” have to pay to do so.) flaming on both sides of the down- (often attributed to Henry Carey). Clearly, there is a continuum be- loading controversy—it presents Monet painted the Gare St. Lazare, tween imitation and inspiration, but both a factual argument and pro- designed by Eugène Flachat. And Lessig shows that we used to be able posed solutions. Disney’s 1950 movie Kim was based to draw on a much larger fraction of Lessig documents the concentra- on a 1901 novel by Rudyard our culture than we can today. He tion of media ownership and the ex- Kipling; the copyright term in 1901 follows the various changes in copy- pansion of intellectual ’s pro- was 48 years, which means the right law, the way people could use tected area, which work to put movie came out one year after the existing ideas in the past, and the dif- increasingly more creative output in novel’s copyright expired. ficulties in using even trivial quota- the hands of fewer organizations. Even Shakespeare, of course, took sev- tions from other works today. A pic- cliché phrases can now “belong” to eral of his plots from Raphael Holin- ture as simple as the New York City somebody. Rupert Murdoch’s Fox shed’s 1587 Chronicles of England, skyline becomes impossible to re- News has tried to claim control of the Scotland, and Irelande. (See John Julius produce if building owners demand words “fair and balanced,” for exam- Norwich’s Shakespeare’s Kings [Scrib- payment when images of their build- ple, and Donald Trump wants to ner, 2000] for a fascinating compari- ings appear somewhere (as the trademark “you’re fired.” What can son of history as Shakespeare wrote it, Chrysler Building’s owners are now you say if you can’t allude to anything as he read it, and as we think it really doing to movie studios). that’s gone before without stepping on was.) Shakespeare himself has been the toes of someone who can afford a reused constantly, including Bern- Lessig of La Mancha bigger lawsuit than you can? stein and Sondheim’s West Side Story, Lessig spends a good part of the book Rodgers and Hart’s The Boys from with the Eldred v. Ashcroft lawsuit, in- Suppose Syracuse, or Jane Smiley’s A Thousand cluding several pages taking the Holinshed had Acres, to name but a few. blame for failing to get the Supreme sued Shakespeare This begs the question of Court to declare copyright term ex- Perhaps the deepest question in the whether it is more admirable to cre- tension unconstitutional. In truth,

76 PUBLISHED BY THE IEEE COMPUTER SOCIETY 1540-7993/04/$20.00 © 2004 IEEE IEEE SECURITY & PRIVACY Digital Rights

however, there was never much had required for almost two centuries If we estimate that artist royalties chance of winning. After the argu- until joining the Berne Convention are 10 percent of the roughly US$12 ment in that case, I sat at a lunch table international copyright treaty. billion in annual audio CD sales, and with several lawyers, and one of Will the Supreme Court find that that (according to Ritek CEO Gor- them pointed out that Solicitor the First Amendment or the Copy- don Yeh) about 11 or 12 billion General Theodore Olson had taken right Clause of the US Constitution blank CDRs will be sold in 2004, a the case, rather than assigning it to a requires Congress to retain a notice tax of 10 cents per disk could com- subordinate. Olson was 7 and 0 in his or registration requirement for pletely replace the royalties if all CD personal appearances in the Court, copyright? I’m skeptical, but again, sales went away. Alternatively, we and another man recognized that this court case is helping gain adher- could divide the tax among blank Olson wouldn’t have argued the case ents and publicity for the limited- CDRs, cassette tapes (for as long as himself unless he was sure it was a copyright view. they are sold), and hard disk drives (a “slam dunk.” much larger market of some US$20 Relying on his faith in the Court’s Solutions billion per year). nonpolitical nature, however, Lessig Although many are working to in- As Lessig points out, however, seems to think a different argument crease the public domain, a protected this model breaks down once the In- might have won. “I had spent my life area will always remain to encourage ternet can stream music so quickly teaching my students that this Court writers, artists, and musicians. If per- that people just download songs each does the right thing—not because of sonal copying makes it difficult to time they listen rather than burning politics but because it was right,” he compensate these creators by royal- them to CD. In anticipation of this writes. Was this man awake for the ties on industrial-scale distribution, change, perhaps we could consider a 2000 Presidential election? I agree what might take its place? tax on bandwidth: given some that the Court is a much better place Following the model used in many US$30 billion per year in ISP rev- than the US Congress for someone European countries, Lessig proposes enues, raising US$1 billion to com- arguing law and morality without using tax money, rather than just sales, pensate artists would require about a money behind him. Unfortunately, I to compensate creative artists. Ger- 3 percent tax. Congress is unlikely to really can’t think that a different ap- many, for example, paid its composers’ plan so far ahead, however. proach would have succeeded (see society about 20 million euros in 2002 Beyond just finding the money to my January/February 2003 column, collected from a tax on blank tapes and reward those who create new work, “Copyright Extension: Eldred v. discs. The Netherlands also compen- we also must ensure that the money Ashcroft,” for more). sates composers from a tax on CDRs. can flow to them with reasonable ef- On the other hand, I’m very glad It charges different rates for audio and ficiency. The book emphasizes the that Lessig argued this case, although data CDRs, believing about a fifth of importance of getting the law right. he has been criticized for bringing it the data CDRs are used for music; If everyone perceives the law as fair with little chance of success. The presumably all the audio CDRs and reasonable, we can minimize ad- case’s publicity has encouraged Con- (which are made to work with partic- ministrative costs while reducing in- gress to consider new bills in favor of ular recording hardware that enforces tellectual-property sellers’ need to a larger public domain, and it has en- serial copy-management rules) are introduce elaborate, rigid techno- ergized some in the computing com- used for music. The US already has a logical controls. Such controls tend munity to take an interest in copy- right law. In the Eldred case, the Supreme Clearly, there is a continuum between Court said term extension simply changed some numbers within the imitation and inspiration, but we used to traditional copyright regime. Does this mean that a change that radically be able to draw on a much larger fraction alters what we mean by copyright would be unconstitutional? We’ll likely find out soon: Lessig is raising of our culture than we can today. that issue in a new case, Kahle v. Ashcroft. He is arguing on the Inter- special tax on digital audio tapes to stop not only piracy but also what net Archive’s behalf that Congress (DATs) to help composers, but not on is now considered “fair use,” which overstepped its rights in removing re- other media. It wouldn’t be difficult to the publishing industry has said it quirements for formal notice or reg- extend this to implement the pro- feels no obligation to help. As Lessig istration for copyright, which the US posed model. paints it, “If they can find a distribu-

www.computer.org/security/ IEEE SECURITY & PRIVACY 77 Digital Rights

tion method that provides no access it might cause works that are now ig- without payment, not even trivial nored to become available. In other access or educational use, they might words, they oppose the bill not be- impose it. The closer we can make cause it wouldn’t work, but because our law to a reasonable bargain, the it would. If it is hard to present old more we discourage attempts at both works, theatre patrons will have to piracy and protection.” buy tickets for new productions. But In the near term, Lessig supports will modern drama be as good if it the Public Domain Enhancement can’t be inspired by older works? Act. This new bill before the US Congress would require copyright owners to reregister copyrighted any uses of downloading are works for a nominal fee after 50 years M actually innocuous or helpful. to preserve protection. The intent In an effort to reach a wider audience IEEE Pervasive Computing isn’t to discourage people from re- and spur concert-ticket sales, for ex- delivers the latest peer-reviewed newing work they think is valuable, ample, some musicians are happy to developments in pervasive, but to ease the passage into the pub- give their music away. Since Lessig’s mobile, and ubiquitous lic domain for the vast majority of book was written, professors Felix computing and acts as a catalyst older material that has no commer- Oberholzer-Gee of Harvard and for realizing the vision of cial value, and whose owners either Koleman Strumpf of the University pervasive (or ubiquitous) don’t care about it or don’t even re- of North Carolina at Chapel Hill have computing, described by Mark Weiser nearly a decade ago. member that they have it. In addi- also presented data showing that tion, this law would help those who downloading doesn’t seem to have a In upcoming issues, look for are interested in licensing works by net effect on CD sales. This might articles on providing the current owner’s name mean that for every CD not sold be- and address. (See www.eldred.cc for cause someone downloaded it, some- • Ubiquitous System Software more on this bill.) one else bought a CD because they • Pervasive Computing Unfortunately, the bill is under downloaded part of it and liked it. for First Response attack by the usual groups, including As further evidence, the Na- • Energy Harvesting Jack Valenti and the Motion Picture tional Academy Press has found that and Conservation Association of America (MPAA). I allowing people to read their books recently asked a class of students to online has increased the number of To subscribe, visit prepare arguments for and against paper copies sold; Lessig is trying the www.computer.org/ this bill. They proposed a variety of same experiment with Free Culture, pervasive/subscribe.htm reasons this would be a bad law, in- which is available online at www. cluding the administrative hassle on free-culture.org/freecontent. or contact our Customer Service copyright owners and the risk of a There is a great deal more in this department: new government bureaucracy mak- book—about the , about +1 800 272 6657 ing a mess of things. But neither they history, and about our culture. I rec- toll-free in the US and Canada nor I came up with what Lessig be- ommend it to everyone interested in +1 714 821 8380 phone lieves is the real reason the bill is in public policy about copyright, +1 714 821 4641 fax trouble. He says the MPAA and its downloading, and the deeper ques- friends aren’t really worried about tions of how best to encourage a cre- the difficulties they would face in re- ative society. newing their own productions, but rather about the number of other Michael Lesk is a professor in the School people’s works that would go into of Communication, Information, and the public domain. Library Studies at Rutgers University. His By keeping old but commercially research interests include digital libraries, networking, and Unix software. Lesk is worthless works inaccessible for ad- author of of Practical Digital Libraries ministrative reasons, they minimize (Morgan Kaufman, 1997). He received a competition for their own work. PhD from Harvard in chemical physics. They oppose the bill not because it He is a fellow of the ACM and a member of the IEEE and the American Society for might cause some of their material to Information Science and Technology enter to public domain, but because (ASIS&T). Contact him at [email protected].

78 IEEE SECURITY & PRIVACY MAY/JUNE 2004