Fight the right fight

• Cory Doctorow mounts a spirited defense of copyright at Locus Online.

The tragedy is that these para-copyrights have almost nothing in common with actual copyright law. No matter how hard you adhere to them, you're probably breaking the law — so if you're in making anime music videos (videos for pop music made by cleverly splicing together clips of anime movies — google for "amv" to see examples), you can abide by all the rules of your group about not showing them to outsiders and only using certain sources for music and video, but you're still committing millions of dollars' worth of infringement every time you sit down to your keyboard.

It's not surprising that para-copyright and copyright don't have much to say to one another. After all, copyright regulates what giant companies do with each other. Para-copyright regulates what individuals do with each other in a cultural settings. Why be surprised that these rulesets are so disjointed?

It's entirely possible that there's a detente to be reached between the copyists and the copyright holders: a set of rules that only try to encompass "culture" and not "industry." But the only way to bring copyists to the table is to stop insisting that all unauthorized copying is theft and a crime and wrong. People who know that copying is simple, good, and beneficial hear that and assume that you're either talking nonsense or that you're talking about someone else.

Google the usurper

• Jonathan V. Last zeros in on Google in The Weekly Standard.

Interesting editorial about Google's controversial book-scanning project.

Note: Post revised after the author rightfully kvetched. (Poor word choice on my part; I do need an editor.) Too bad Last gets my name wrong on his blog. Neither party is looking very good with this one...

The legal problems lie with the Library Project. Copyright has its foundations in English law and the Licensing Act of 1662. The falling costs of printing had created rampant book piracy in England. Concerned that such behavior would blunt creativity and harm the book business, Charles II established a register of licensed books to protect authors and publishers. A hundred years later, the copyright was the only right the Founding Fathers gauged important enough to recognize explicitly in the Constitution itself. In the intervening years, it has evolved somewhat. Today, works published before 1923 are generally in the public domain. There are exceptions and complexities, but works published after 1978 are protected by copyright for 70 years from the author's death. As for works published between 1923 and 1978, they were given an original copyright protection of 28 years from first publication and another 67 years of protection upon renewal of the copyright. Got that?

And here lies Google's dilemma: Out-of-copyright books account for about one-sixth of all titles. Most books--75 percent of them--are in copyright, but out of print. Only about 10 percent of all books are both copyrighted and in print. Google has decided to get around this problem of copyright protection by simply ignoring it: forging ahead and scanning books, regardless of their copyright status. If a book is in the public domain, its full text is displayed to users, but if the book is protected, then Google shows users only a "snippet" of the text surrounding the search result. It is relevant to note that "snippet" is Google's word and is intentionally not a legal term; how much text is displayed is entirely at Google's discretion.

...The Internet has become, like the 17th-century printing press, incapable of observing copyrights. In the same way the printing press encouraged the mass production of books and magazines and newspapers, the Internet cries out for the distribution of all information--everything from blog entries to pictures to books. And as it distributes all of this information, it exerts a leveling force that diminishes the value of everything it touches. There is no reason that the Internet, unlike the printing press before it, should be exempt from the same protections of creative value. Yet, this is what Google's defense would achieve.

Copyright gone mad

• David Edgar comments on the Olympic committee's copyright claims in The Guardian.

Copyright law just keeps getting nuttier and nuttier, and Edgar has choice words for those who try to push it too far.

See also: The dark side of copyright law (5/5/06) and More on copyright law (4/11/07).

When it discovered that Robert Ronson's children's science-fiction novel was to be published, the organising committee for the previously mentioned happening sent him an email asking that he should use neither the O-word nor the expressions "London 2012, or 2012 etc" in the title. The committee was able to do so under statutes passed in 1995 and 2006, which in effect turn all the elements of its title into a trademark.

In claiming copyright on a word, the organisation dedicated to the promotion of the competition to be held two years into the next decade is both following and extending a dangerous trend. ...

...The email to Robert Ronson was written by the Olympic organising committee's manager of brand protection, concerned to "ensure that there was no confusion" as to whether the novel was "an official licenced product", presumably in case the committee seeks to declare Ian McEwan or Martin Amis official novelist to the 2012 Olympics at some point.

More on copyright law

• John Lanchester examines copyright law in The Guardian.

Via Conversational Reading:

Copyright was born in the 16th century and, for the first couple of centuries of its existence, was a form of censorship. With the creation of the Stationers' Company in 1556, printers had to register their books, in order to make it easier for the monarchy to censor their "heresy, sedition and treason ... whereby not only God is dishonoured, but also an encouragement is given to disobey lawful princes and governors". It was a straightforward means of control: print something we don't like and you'll be punished, often by means such as having your nose slit or ears cut off. (Somewhere, a record company executive is reading those words and thinking, if only ... ) These laws had nothing to do with the needs of writers or the public, and everything to do with state control.

When the first real copyright law came, it was by accident. The laws controlling printing lapsed in 1694, and for the next 16 years a form of anarchy reigned: anyone could print anything. The effect for publishers was disastrous; they came to realise how important their monopoly was, and in turn how important it was to have a means of not just censoring the press, but controlling who owned what - in short, an idea of copyright. Out of that was born the copyright act of 1710, or, as it was significantly called, "An Act for the Encouragement of Learning". The act said that:

Whereas printers, booksellers, and other persons have of late frequently taken the liberty of printing, reprinting, and publishing, or causing to be printed, reprinted, and published, books and other writings, without the consent of the authors or proprietors of such books and writings, to their very great detriment, and too often to the ruin of them and their families: for preventing therefore such practices for the future, and for the encouragement of learned men to compose and write useful books ...

It created a copyright term of 21 years, after which the rights would revert to the author. And there you have it: the world's first system of copyright. As those words make clear, the act was explicitly based on one idea: that it was in the public interest to create an intellectually fruitful culture, and that the way to do that was to make it possible for writers to earn money from their work.

The dark side of copyright law

There was a story in The New York Times in November 2005 called "The Goat at Saks and Other Marketing Tales" which detailed Saks Fifth Avenue's development of an illustrated children's book called Cashmere If You Can, about a young girl and her pet herd of Mongolian goats who call the roof of the famed department store home. What distinguished this particular publication from the rest was that the book did not originate from the mind of an individual author. Rather, it was commissioned by a Saks marketing executive, ostensibly with the intent of creating a piece of profitable fiction which would showcase the store within its pages. Another recent story in the Times called "First, Plot and Character. Then, Find an Author" (4/27/06) detailed a similar strategy by Alloy Entertainment, a young-adult publishing company.

Product placement used to be a joke; now it's so ubiquitous that brands no longer need to pay for the right for their product to be showcased in a book, film or TV show. These days, they simply take their product and build the edifice of a book, film or TV show around it. The unfortunate downside to this approach has been demonstrated quite clearly of late, with the revelation that a 19-year-old Harvard student, Kaavya Viswanathan, appears to have lifted large chunks of her recently-published book How Opal Mehta Got Kissed, Got Wild, and Got a Life from preexisting works by author Megan McCafferty and also, to a lesser extent, authors Sophie Kinsella, Meg Cabot and even Salman Rushdie.

Copyright law was ostensibly created to protect the rights of the individual creator of any artistic work from unlawful reuse. In one sense, it's beneficial for the creator because it ensures that they'll be fiscally rewarded for their hard work in creating something that people want to purchase and experience. The flipside, however, is that it could conceivably box the creators of future works into smaller and smaller compartments. Exploitation of copyright law can be seen particularly clearly when the "estate" of any given author claims ownership of material and demands damages because they believe that the originator of the idea owns it until the end of time. This is an idea that has always seemed a little bit absurd to me; while the creator certainly deserves the recognition and reward for the work they do, that doesn't mean their family or friends or distant relations automatically deserve to get a slice of the pie.

How, then, do you claim ownership of material when a corporation commissions it? Is the future of copyright law such that originality is sliced-and-diced into a number of no-fly zones that could limit an author's ability to touch upon certain subject areas, or even certain ideas? A fascinating recent documentary called The Corporation detailed how lawyers in the early 18th century exploited a loophole in the 14th Amendment that enabled them to declare corporations an individual "person" that's entitled to legal rights normally granted solely to flesh-and-blood individuals. As detailed by the excellent writer Glenn Erickson, also known as DVD Savant, in his review of the film at DVDTalk.com:

Corporations in the first half of the 18th century were chartered when the resources to construct things like bridges could only be found in private hands. The creation of legal "persons" was meant to protect individuals from undue liability in public projects, usually with strictly defined limits. Clever lawyers used the 14th Amendment - designed to extend the rights of recently freed slaves - to extend the rights of corporate persons as well, permitting such unintended things as one corporation buying another. Living persons cannot buy and sell one another, but corporate "persons" can.

If corporate power can extend into the intangible realm of ideas, where can creativity go without being boxed in by misuse of legal power? Obviously there's a line between the appropriation of a preexisting idea for one's own ends and the callous exploitation of outright plagiarism. Viswanathan's case has made such a splash because she was initially perceived to be a sort of wunderkind; a young Ivy League college student who had wrangled her own lucrative book contract by what appeared to be pure, unadulterated talent. But the situation becomes more complicated once you consider that the work itself bore the heavy influence of corporate control. I don't claim to be an expert on copyright law -- or of any law, for that matter; I'll leave that to my law-school friends. But it's increasingly disturbing to see so much influence wielded by corporations in areas that should be outside their realm of influence.