I think it was just a matter of hours after my first article appeared criticizing piracy and the anti-SOPA campaign that I was called a “copyright maximalist.” I had never heard the term, but suddenly and without any induction process, I was anticipating membership in this secret society. It’s been about three years now, and despite keeping daily vigil by the mailbox, no decoder ring has yet been delivered. I am now suspicious that the American League of Copyright Maximalists may be a myth that originated somewhere in cyberspace.
No, copyright maximalism is not associated with an organization but instead describes a point of view that is supposedly pervasive enough to warrant the chronic and casual use of the term by pundits like Mike Masnick at Techdirt. Exactly what defines a maximalist, however, is unclear. In the artistic sense, of course, maximalism is simply the opposite of minimalism. John Cage is minimalist, Wagner is maximalist. But in a political or ideological context, a maximalist is an extremist, like a religious extremist, who is so convinced of his own righteousness that he would use radical, draconian, or even violent means to enforce his view on the world. In this sense, there may be copyright maximalists out there, but if extreme agendas are the identifying quality, I can’t say I’ve met any of these creatures yet. Yes, we’ve seen some maximalist theater related to copyright, like Jack Valenti’s now dogeared quote about the VCR, and there’s a reason that old anecdote keeps getting recycled — because in the real world of policy-influencing debate, one would be hard pressed to find copyright supporters proposing terribly extreme views on the subject.
Take the recent ruling in the “Blurred Lines” case. I recommend sources other than this blog for legal analysis, but all of the experts I know, either on copyright or music or both, generally view that outcome as flawed. Without getting too granular about (and frankly screwing up) the particulars in the case, the general idea I get from all my copyright and music colleagues is that the ruling errs due to a failure to distinguish between similarity and actual infringement on the elements of the original work that are protected by copyrights. Again, if you want specifics, I suggest this post on IPBreakdown.com by Rick Sanders, but the point I want to make here is that my fellow “maximalists” actually would advocate a far more narrow read of copyright law with regard to “Blurred Lines,” and this is consistent with the views I have encountered over the past few years. Meanwhile, as the anti-copyright blogosphere goes berserk about this case, forecasting slippery slopes and a further broadening of powers granted to rights holders, one should ask who really has the radical, or maximalist, agenda here?
Of course, it’s always easy to label someone an extremist, if you move the bar for moderate in the opposite and extreme direction. And with regard to copyright, this is what seems to have happened correspondent with the evolution of the Internet. It is right that we should revisit the legal framework of copyright in the context of these technologies, but does that mean the only moderate and rational agenda must exclusively limit copyright across the board? Are all other views maximalist? Is it not obvious that digital technology creates both new threats and new opportunities and that any sensible legal framework should remedy the former while nurturing the latter? Or is that the raving proposal of an extremist?
On the other hand, nearly everything in our politics is black and white now, all written in the vernacular of extremes and organized into tidy, associative categories. In fact, I was visiting my best friend over this past weekend, and he very understandably assumed that I would confirm his assumption that the copyright community I know would see the “Blurred Lines” decision as a “win for our side.” He was surprised when I told him how many copyright supporters disagree with the ruling; but it really shouldn’t be surprising because people immersed in the complexities of any system rarely have blunt and unilateral views. It’s invariably more nuanced.
Similarly, at a dinner a few weeks ago, I found myself talking to a couple of political conservatives, and one of them was actually surprised to learn that we had the same point of view one particular issue. It’s unfortunate that this should be so shocking, and it suggests to me anyway the degree to which political divisiveness is manufactured and fed by all media and why it appears only to be getting worse in the digital age. There is always opportunity for a would-be ringmaster in the circus of divisiveness, and social media are like clown cars that supply an endless stream of validation for our assumptions.
So, all that said, I really have no idea what a copyright maximalist is other than a careless pejorative to describe anyone who openly supports copyright. If I am a maximalist, then the copyright holy war is doomed because I am not nearly versed enough in the scripture to propose any radical interpretations of it. Surely none that anyone would listen to. I don’t know. Maybe there’s another way to talk about these things.