Tag: copyright

Fight for the Future Naive About King “Dream” Speech

FFTF Dream Screen Shot

I have a dream that one day my children will be judged not by the content of their character, but by the content they can steal.  

So, my friend David Lowery, on his blog The Trichordist, has been taking the organization Fight for the Future to task lately, and he most recently caught the organization in a lie related to DMCA  takedown and their defiant upload of Martin Luther King’s “I Have a Dream” speech to YouTube. Back in 2013, to celebrate the  first anniversary of the defeat of SOPA, FFTF posted the “Dream” speech to YouTube in direct violation of the King estate’s copyright in the work; and the group told people to share the clip in what they called a “small act of civil disobedience.”  Small indeed. It’s bad enough to conflate the whinging, privileged, and corporate-backed “fight” against SOPA with the deadly labors of Dr. King, but there’s something even more insidiously galling about this whole MLK/copyright conflict that Fight for the Future and their ilk really don’t understand.  And maybe it’s because they grew up in a world of sound bites.

Since roughly five minutes after the Constitution was ratified, this country has been trying to live up to its own ideals, and getting there—and we’re not there—has taken decades and cost many brave people their lives.  In that speech on the steps of the Lincoln Memorial, King is demanding that America be true to its principles when he invokes the Declaration’s all men are created equal.  Those words are Jefferson’s preface to citing the natural rights of Man, which Jefferson cribbed from John Locke, whence comes the idea that the fruits of one’s labor are a civil right.  King’s enormous contribution is a part of that continuum—a history of struggle for the value of the individual voice to vote to speak to protest and to enjoy the fruits of his or her labor on equal footing with all other citizens.  And that last principle is why the intellectual property clause exists in the Constitution in the first place.

Yes, Dr. King is a big part of America’s struggle toward its best intentions, but it isn’t just a story about prejudice against race or sex or identity; it’s a story about the value of the individual and his or her right to pursue happiness.  Hence labor rights are invariably a central component of every civil rights battle ever fought—from literal slavery to the workers’ rights of the early 20th century to ongoing demands for equal work opportunities for women.  When Martin Luther King was murdered in Memphis on April 4, 1968, he was there to protest the exploitation of city garbage workers.  Even the “Dream” speech itself was part of a march called “The March on Washington for Jobs and Freedom.”  The value of the individual’s labor is a cornerstone of civil rights; and what these featherweight activists at Fight for the Future completely fail to realize is that intellectual property rights are a significant expression—in fact the first legal expression in this country—of that fundamental principle.

Meanwhile, the free speech we enjoy—the free speech groups like FFTF believe is threatened by the King family’s copyrights—owes a great deal to the courage of King and his followers.  In the 1964 case of New York Times Co. v Sullivan, Alabama courts upheld a libel claim against the Times for publishing an ad called Heed Their Rising Voices in support of the King-led marches in the South.  The city commissioner of Montogomery L.B. Sullivan sued over the negative portrayal of his police department, and had the US Supreme Court not overturned key precedents in the lower court rulings, then the power of newspapers and public advocates to criticize elected officials and government agencies would likely have been diluted for many years to follow.  So, even with regard to free speech itself, all this digital-age dithering over a work that is widely and affordably available is a little pathetic in context to the history in which these people are dabbling.  (Coincidentally, I watched the “I Have a Dream Speech” last night, for the zillionth time in my life, as part of Episode 5 of the CNN-produced series The Sixties, now streaming on Netflix).

So, yeah, we can debate the practical application of copyright, discuss whether or not a particular work should remain protected and for how long.  But when a bunch of privileged, 21st-century kids (backed by very wealthy corporations, I might add) declare, from the comfort of their keyboards, that the emancipation of Dr. King’s speech from the “chains of copyright” is somehow a fight for civil rights, I propse that FFTF should change its acronym to STFU.  This is especially true when their idea of a “moral responsibility to disobey unjust laws” means in this case to serve King up to corporate masters so his legacy can rightly become their property to monetize rather than his family’s.

My generation grew up with Dr. King’s words as part of our consciousness, miraculously without the aid of YouTube or the internet.  In fact, it’s noteworthy that the limited scope of access in the 1960s probably played a significant role in accelerating the progress of particularly the Voting Rights Act.  Because the first wave of Selma marchers had the unbelievable guts to walk unarmed into a mob of cops and goons brandishing knightsticks, pipes, and barbed-wire-wrapped clubs, and because the enitre nation was limited to just a few TV networks, it meant that tens of millions of citizens simultaneously watched—in a sense were forced to watch—the sight of innocent people being mauled. So, our new world of abundance isn’t always the potent, connective tissue we think it is.

Probably the most telling irony in this story is that by spending so much energy and corporate money fussing about the copyright on Dr. King’s “I Have a Dream” speech, the folks at Fight for the Future demonstrate that they don’t really seem to understand the speech at all.  They demand access on principle but learn nothing about the work itself.  And if that isn’t the lie of the digital utopia writ large, I don’t know what is.

The Revolution in the Mirror is Closer than it Appears

The father of modern chemistry Antoine-Laurent Lavoisier was beheaded in 1793 in what is now the Place de la Concorde. A victim of France’s post-revolutionary Reign of Terror, he was specifically marked for execution by one vengeful, lesser scientist named Jean-Paul Marat, whose incorrect theory about combustion had been publicly scorned by Lavoisier at the royal academy.

It’s rare when revolutions do not produce new tyrants, and of course the fact that our own war of independence avoided this fate is a legitimate source of national pride for Americans.  This doesn’t mean we’ve managed to avoid tyranny altogether, only that our despots tend to be CEOs instead of warlords.

In an article for Evonomics, Lawrence Lessig writes, “ … the biggest danger to free markets comes not so much from antimarket advocates (the Communists and worse!) as from strong and successful market players eager to protect themselves from the next round of strong and successful market players.”

Lessig is of course referring to historical precedent in which “old innovation” employs—or even revises—legal mechanisms as a means of protection against “new innovation”.  The familiar narrative is one in which the legacy industry clings to power for as long as it can while new industry inexorably builds the market of tomorrow.  Referring to the protectionists as capitalism’s biggest enemies, Lessig sets the stage as follows:

“…there are only two things we can be certain of when talking of free markets:  first that new innovation will change old; and second that old innovation will try to protect itself against the new.”

In the article, he identifies this protectionism as the kind of crony capitalism in Washington that ought to make allies of “progressives on the Left and free-market advocates on the Right”. And indeed, this type of alliance did manifest in 2012 with the shouting down of the SOPA and PIPA bills, when we saw paradoxical solidarity among members as divergent as the ultra-conservative Heritage Foundation and the anarchic hacktivist group Anonymous. And those bills were certainly labeled “protectionist”, although there were no reasonable grounds for portraying either their intent or their mechanisms in that light.  Still, one cannot deny that one droning note of rhetoric, which continues to muddy the waters, is a broad narrative of Old v New, with New having the advantage of at least appearing to be on the “right side” of history. After all,  history will tell you that New always wins.  That’s why it’s called New.

But the crucial detail Lessig leaves out of his otherwise reasonable premise is that New already won quite some time ago. The yearning revolution he’s talking about is in the rear-view mirror.  The self-proclaimed innovators—the market leaders who are presently writing the future and leading the public debate—already have the lion’s share of wealth at their backs.  Google, Apple, Facebook, UBER, Amazon, et al are not seedling enterprises trying to grow through the concrete and rusted barbed wire of outdated policy; they are the crown jewels of Wall Street and private equity with the capital to do just about anything they want and the PR budgets to tell the market that it’s what we want, too.  Far from banging their heads against a wall of protectionism, New industry is actively and effectively rewriting policy and public opinion; and Lessig is correct that both progressives on the Left and free-market advocates on the Right are cheering them on.  Though I don’t think he’s quite right that they should be.

Neither progressives nor free-market advocates (and I personally consider myself a bit of both) should be bamboozled by the rhetoric of innovation yet to come.  This is not to say that new inventions and new paradigms are not on the horizon—no doubt they are—only to propose that the corporations most likely to be at the forefront of the biggest changes, for better or worse, are already among the most financially and politically powerful entities in the world.  And Lessig is right that the powerful will use protectionist measures to entrench their interests, but the funny thing about our market today—in which a company like UBER goes from start-up to a $60bn market cap in five years—is that Silicon Valley’s leaders and VCs have disrupted protectionism itself and renamed it progress.

Redefining IP as Protectionsim

Not surprisingly, in this broader narrative about protectionism, Lessig invokes criticisms of both patent and copyright law.  With regard to the former, he refers to an increase in patent litigation from 2007 to 2011, with particular focus on the “patent troll”, who might litigate away an otherwise useful innovation.  Although patent trolls are a problem—the worst are sort of the ambulance-chasers of IP law—these actors do not generally represent a protectionist agenda for legacy business.  Ironically enough, though, the Google and Facebook-backed “reform” bill HR-9 is a protectionist proposal inasmuch as its language so broadly defines “patent trolls” that the law could actually harm small, entrepreneurial inventors while entrenching already-big patent owners—like Google and Facebook.

With regard to copyright, Lessig accuses the recording industry of seeking Internet radio rates “designed” to stifle diversity and competition online.  But in describing he innovation being hindered in this case, he first broadly conflates amateurs and enthusiasts with big, corporate players and then blames the RIAA for assuming the online radio market will consolidate.  It’s a bit hard to summarize his point here since he begs some important questions.  You can read the section for yourself, but his larger argument that the recoding industry “wants” a smaller market seems to overlook clear evidence that the networked economy tends to produce monopolies by its own means, and not because of so-called protectionist maneuvers by traditional industries.

Moreover, given that Lessig’s broader thesis is a criticism of money in politics, it seems especially disingenuous to ignore the fact that the VC money behind most of these technology plays is very much betting on market consolidation rather than expansion. In this extensive profile of Marc Andreessen, Tad Friend, writing for The New Yorker, describes the sensibilities of Silicon Valley’s major venture capitalists, who make big bets with the understanding that just one needs to become the “unicorn” while the others can fail entirely.

It is a rationale driven by an instinct for knowing that the 1000x return is somewhere in the mix of proposals that may sound like haphazard lunacy to many of us, but which sound like the future to this niche club of mostly male investors. But the point not to be missed is that this culture produces extraordinarily powerful, competition-resistant companies that go from zero to Forbes cover at historically unprecedented speed. And the political influence they wield scales in tandem, as we see when Google shifts in a matter of a few years from virtually no lobbying to ranking among the top ten in the country.  So, Lessig’s portrayal of private industry leveraging public policy is fair; it’s simply looking in the wrong direction.

Perhaps most importantly, the ideology of the venture capital behind the businesses we tend to aggregate under the generic term innovation is one that has almost no kinship with Lessig’s stated political reform agenda (i.e. getting money out of politics).  Guys like Marc Andreessen and Peter Thiel don’t talk about “fixing” American politics; they talk about rejecting it altogether—taking themselves quite seriously with proposals to establish alternative, technocratic states.

Utopian fantasies like Seasteading may be appealing to any number of libertarians and anarchists out there, but it’s a world view that should not in any way be confused with, for instance, a Bernie Sanders-like proposal to effect reform from within the system. In fact, the two interests are wholly antagonistic since Sanders-style political reform is predicated on forcing American-made wealth to reinvest in America itself—not on billionaires building autonomous societies akin to Ayn Rand’s magic valley in Atlas Shrugged.

Meanwhile, the extent to which Silicon Valley’s brand of libertarian ideology speaks with money in Washington, it is often disguised as anti-protectionist, legislative reform proposals just like HR-9.  Political clout is not exclusively a matter of pay-to-play; it’s also a manifestation of market capitalization that buys even unproven companies a seat at the table simply because they’re too disruptive to ignore. Meanwhile, it’s clear that there is a lot of stable, economic value in “old” industry. And so, this narrative that, for instance, the rights of individuals—be they authors or inventors—are just nuisance barriers to be innovated around, can foster our own economic reign of terror in which lesser innovators are financially incentivized to decapitate greater genius.

Don’t call copyright a government-granted monopoly.

When most people discuss or debate copyright’s value in the contemporary market, they talk about the utility of the law—typically arguing the efficacy or rationale of specific contours like term length or enforcement—while generally overlooking the philosophical principles that led to the IP clause being written into the U.S. Constitution in the first place.  This is of course not uncommon with any number of issues.  A particular constituency or individual citizen with a political agenda is apt to read the one sentence or phrase in our elegantly concise Constitution and interpret it as he sees fit.  For instance, the Framers will often allude briefly to a rationale with a dependent clause like “In order to maintain a well-regulated militia …” which is then interpreted as either a still-relevant or now-obsolete explanation for the 2nd Amendment, depending on whether the interpreter supports or refutes gun rights.

Similarly, the conditional expression setting up the IP clause, “The Congress shall have the power to promote the progress of Science and useful Arts …” has been the source of heated argument that copyright’s utility is clearly in the service of society; and this premise then becomes the basis for describing copyright as a “rent”,  “tax”, or “monopoly”, granted somewhat reluctantly by the government to individual authors (and inventors) in order to extract the fruits of their labor for the greater good.

In fact, a few years ago, Mike Masnick riled up his readers at Techdirt over the fact that Register of Copyrights Maria Pallante had the nerve to suggest that copyright serves the author first and society second.  Oh, the screaming and the gnashing of teeth that ensued.  But, of course, from a utilitarian perspective, Pallante was making a perfectly innocuous statement of fact about the only way in which the order of operations can be applied.  Clearly, if the author does not first create, society is never served at all.  But that’s not what I want to talk about.

I recently finished a new book, written primarily for legal scholars, by Randolph J. May and Seth L. Cooper of the Free State Foundation, called The Constitutional Foundations of Intellectual Property:  A Natural Rights Perspective. The book makes a case for the philosophical underpinnings of intellectual property in the U.S. Constitution, beginning with the Enlightenment influences on the Framers and concluding with those principles ultimately being expressed in the post-Civil War amendments ending slavery and affirming the rights of citizens regardless of their state of residence.

Terry Hart’s latest post on Copyhype is a review of this book, in which he rightly points out that the Natural Rights foundation for intellectual property has been largely substituted by a purely utilitarian discussion among most academics critical of contemporary copyright.  And these murmurings in the hallowed halls of law colleges have trickled down into the blogosphere where they have coalesced around the meme that copyright is a government-granted monopoly.  But to ignore the philosophical precedent for intellectual property—regardless of the necessity to debate the utilitarian contours of the laws themselves—is a tragically flawed mistake for any citizen to make, no matter where he or she sits on the political spectrum.  And this is because the intellectual property right is really just one branch on a rather important philosophical tree to which all our favorite civil rights are also attached.

As mentioned, May and Cooper’s book is written by academics for academics, though it is entirely accessible to any reader, if constitutional scholarship on intellectual property is your cup of post-revolutionary tea, so to speak. But in simple terms, the first part of the book supports the view that the appearance of the intellectual property clause in Article 1, Section 8, Paragraph 8 of our Constitution is an expression of the principles articulated primarily by English philosopher John Locke in his Two Treatises on Government. First published in 1689/90—exactly a century before the first U.S. Copyright Act—these treatises imagine the individual in a hypothetical State of Nature in order to then express what Locke sees as the purpose of entering into the social contract we call the state or government.  In the State of Nature (i.e. a condition in which the individual enjoys what we call Natural Rights), Locke argues that the individual has a “property in his own person” and that part of the purpose of government is the security of his property, which is more commonly known by Americans as the pursuit of Happiness.

Locke uses the word property in a much broader sense than we generally to use it today, which is to say that each of us has a property in our being—our bodies, our minds, and our faculties.  We still believe in this principle, of course, we just don’t generally use the word property to talk about it.  But from this Lockean notion of property comes the idea that if your hands and mind are yours, then what you produce with your hands and mind—whether it’s a harvest of wheat or a novel—is logically also yours.  Critics of intellectual property will often bypass Locke’s definition of the word property in order to draw contemporary attention to the logic that physical property like a car is fundamentally different from intellectual property like a copyright in a song.  This argument carries particular weight in the digital age when copies of intellectual works are now profoundly non-physical; but as May and Cooper point out, the differences between these types of property are appropriately reflected in the contours of the laws themselves—and remain amendable according to changes in market and social conditions—while the foundational principles for both types of property remain sound and relevant.

The Lockean notion of a property right in the fruits of one’s labor should not, in my opinion, ever be relinquished to the authority of the government as a privilege—which is what a monopoly technically is—rather than asserted and protected as an expression of our Natural Rights as individuals.  As May and Cooper demonstrate, both physical and intellectual property act to define and limit the role of government, which is entirely consistent with American constitutionalism, whereas fostering monopolies is anathema to those principles. Government’s mandate to protect both types of property, the authors argue, acts as a hedge against “centralized decision-making,” which is to say a society that is not composed of free-thinking individuals. There is no question that May and Cooper approach their argument for the foundation of IP from a libertarian/conservative perspective of limiting the power of government; and this is actually refreshing inasmuch as I have never quite understood those academics of the same political stripe, who have lately portrayed copyright as a government-granted privilege.  That seems to me like surrendering considerable ideological territory in a way that is inconsistent with the advocacy of limited government.

At the same time, for those of us who lean more politically left, I would add that I believe the fruits of one’s labor principle also acts to limit the power of capital, which is particularly relevant today when so many people are frustrated to the point of concluding that capitalism is only capable of producing wealth consolidation, a foundering middle class, and corporate control of government itself.  In the same way that I would advocate fixing capitalism rather than throwing out the proverbial baby with the bathwater, I would point out that the fruits of one’s labor concept—as it is specifically expressed through intellectual property—really implies a much larger social contract than the incentives of copyright and patent holders.

The idea that your labor is your own until you provide its fruits in fair trade to someone else is the basis of every hard-won labor and civil right—because these rights are often intertwined—over the worst abuses of either corporate owners or government agencies.  This is also consistent with the views of the Founders, who sought to foster neither an intrusive government nor a new nobility that would give rise to new forms of feudalism.  And because too little of the former provides opportunity for the latter, and vice versa, it is our fate to constantly seek to balance these opposing forces.  Hence, the fruits of labor right vested in every individual citizen acts as a balancing force against both extremes; and IP rights are merely one specific expression of this much larger principle.  Even free speech itself is an extension of this Lockean principle that the individual has a property in his person.

With 1% of the population owning more than 50% of the nation’s wealth; with direct assaults on labor rights in certain regions and economic sectors; with technologies threatening to devalue human work in various ways; and with extreme examples of certain corporate owners getting away with imposing their own morals on employees, this is a terrible time to be calling intellectual property a government granted monopoly.  I would never want to cede the logical conclusion of that argument, to suggest that every citizen’s right to the fruits of his or her labor is in any way a privilege, which may be argued away on the basis of apparent utility alone.  Ultimately, we’re talking about a human right that was forged in the crucible of a century and a half of English civil strife over religion and the divine right of kings.  It may be just a short sentence in the Constitution, but it has a long and bloody intellectual pedigree.