Free for a Fee

Most of the time, working on copyright issues means working in the trenches — dealing with the day-to-day questions that come up, such as “I want to do this” or “I want to do that, and is it ok?” These can be small questions about a single action or they can be big questions about a project or a business plan. But they keep us very busy, because copyright increasingly affects so much of what our clients do.

When I first started practicing copyright law, these questions were all there was. It took me a long time, actually, it took years for me to begin to sense what was deep beneath the surface of our copyright law that actually accounted for most of the bewildering aspects of what we see and experience on the surface. It’s not that they are a secret, these undercurrents. No, most written explanations of copyright start right off with the normal recitation of their existence, but then they go on pretty quickly to deal with the nitty-gritty because that’s what really affects us, that’s where we have to function. “Is this a fair use?” “Can we digitize this map?” “Is this work in the public domain?” “Can I use this quote at the beginning of chapter 7?” Rarely did anyone ask, “Isn’t a law that protects grocery lists and instructions for how to get to Suzie’s house for upwards of 100 years, with the full power of the federal government, it’s court systems, its law enforcement (federal marshals), now a copyright czar, and if some could have their way, the federal attorney general’s office, and the federal prison system, isn’t that a little bit extreme? Well isn’t it absolutely absurd, if we want to be honest about it?” Do I really need all that “incentive” to make a grocery list? Is that the only way our society can get me to make a grocery list? Why does the government care about how many grocery lists there are in the first place, that it would go through all the expense and trouble it takes to legislate, to pass a massive law like the Copyright Act, to protect them? What on earth is wrong with this picture?

But that’s the type of question that surfaces more and more today, because those undercurrents are finally so near the surface that they no longer can be glossed over in the introduction to copyright law. They explain too much. You simply can’t understand what has happened to our law — and what is going to happen to it over the next 10 years — unless you understand these undercurrents.

Still reading? I’ll get to the point.

The presidential race focused its illuminating attention on this conflict last week. Now with all the trouble in the world, it might seem odd that copyright law even makes the cut. After all we didn’t hear about it in the debates. No one asks about it in the polls. But it was there: McCain Fights for the Right to Remix on YouTube. Even Larry Lessig, who gave up on all this 18 months ago and went off to deal with the even bigger undercurrent of corporate influence in Congressional legislating, shined a light on it in commentary: Copyright and Politics Don’t MIx. It seems that McCain campaign workers, like millions and millions of other American citizens, got to experience firsthand how the law works, the law that McCain himself helped to pass in 1998, and how little sense it makes from a common point of view: the point of view of someone who believes the law should be about things that really matter and not about things that don’t.

Fighting for the right to remix? What? Is that like fighting for more efficient and effective health care or fighting to slow down global warming? Or fighting human rights abuse? Hardly. But there it is anyway, this conflict in our law, this conflict between a vision of the law as instrumental, a means to an end, and a vision of our law as natural, an inherent right welling up out of the act of creation, breaking the surface, this time in a presidential race. I never would have believed it could happen.

The problem McCain encountered is that the law is designed to protect property regardless of whether it needs protecting. McCain didn’t hurt anyone’s or any company’s financial bottom line by using his, her or its clip in a video. The owner of the clip doesn’t need to keep McCain from using it in order to make a living. The owner may have needed to know that the federal marshals and the federal court system would come to his aid to protect the clip from some things (like copying and distributing his entire work for a profit without having to pay him anything) in order to make the clip in the first place. But that’s a far cry from protecting a 10 second clip from being “quoted” in a political advertisement. Why does the DMCA, this law that McCain passed in 1998, protect a 10 second clip from being quoted in a political ad?

The law assumes a “shoot first, ask questions later” stance against anyone who uses any part of another’s work. This idea does not arise from the utilitarian, instrumental underpinning of copyright law. Fair use should generously prevent such a silly claim — that 10 seconds, un-permissioned, should be a compensated financial loss to the owner. No, shoot first, ask questions later comes from the natural law side of things: that every penny that might be made from exploiting a work ought to find its way into the pocket of the copyright owner and the law (the federal government, etc.) ought to do whatever it can to direct that penny to his pocket.

Long terms (forever minus a day); narrow scope of fair use; lack of formalities to indicate a need for and desire to claim protection — these shape our law around natural rights traditions, bending it away from its Constitutional purpose so clearly and unambiguously described as instrumental: for the purpose of increasing knowledge.

Well, enough of copyright basics 101. Back to the real meat and potatoes of Presidential politics, with only 9 days left…