Tag: Featured

One Movie Settled the “Debate” About Climate Change

When I saw the theme of this year’s World IP Day, Innovate for a Green Future, I will admit that it was hard not to be cynical. In light of the reinvigorated political assault on science—let alone to be thinking about climate change in the middle of a pandemic—it is tempting to believe that the debate about global warming still rages—or has even been lost. But that’s not quite true. The debate was settled a very long time ago. Or to be more precise, there is no such thing as a debate about scientific evidence, there is only understanding, misunderstanding, willful ignorance, or malignant deception. 

While it is stultifying to see that a truly vindictive brand of ignorance and deception are the cornerstones of the present administration, there remains one avenue of hope for at least mitigating—because it is almost certainly too late to reverse—the effects of global warming. Oddly enough, that avenue of hope has more to do with market dynamics than environmentalism per se, and I would assert that it was a single documentary film that opened the window to a market-based transformation, which, even now, represents a path forward. I am of course talking about An Inconvenient Truth.

An unlikely movie pitch, the centerpiece of the documentary is former Vice President Al Gore presenting his climate change “slide show,” which he had developed over several years after he was first introduced to the science in college in 1966. Not long after conceding the painfully-contested presidential election in late 2000, Gore devoted himself fully to the climate issue, taking his laptop and talking points on the road, offering free admission to anyone willing to listen to him discuss the fate of the planet.

“The slides were originally black and white,” says the film’s co-producer Lawrence Bender, whom I interviewed for this article. “They weren’t visually appealing, but they were almost scarier, like something you’d see in a science lab, when we first saw Al’s presentation in Los Angeles.” Bender and others who would eventually join the production team were invited by producer Laurie David (now Lennard), who had arranged for Gore to come to L.A. after she found herself captivated by his lecture in New York in May 2004.

“Gore’s show left us with a sense of urgency about the issue,” says Bender. “We knew we had to make what we had seen into a movie, but it was not easy to convince many people in the business that it was a movie. Try telling someone you’ve got former VP Al Gore, who lost the election, doing a slide show about science, and that you need a million dollars.” Enter Jeff Skoll, who founded Participant Media in 2004 with the fortune he had made as eBay’s first employee and first president. “Jeff financed the whole production without blinking an eye,” Bender tells me.

Less than a year after that initial presentation in Los Angeles, An Inconvenient Truth was ready for the screen. It became an international blockbuster (for a doc), earning two Academy awards, one for Best Documentary Feature, the other for Best Song, “I Need to Wake Up” by Melissa Etheridge. And for any cynics, who may be tempted to criticize the movie as a vanity project—Hollywood glamor with little substantive effect—I would direct your attention back to the 1990s and early 2000s.

Waking Up Tens of Millions

Hurricane Katrina. August 28, 2005. NASA

When the Kyoto Protocol was ratified in 1997, calling for a modest 5% reduction in greenhouse gasses by developed nations, global warming was not an especially bright blip on the public radar screen. General perception, such as it was, loosely divided along the left/right political lines that are usually drawn through environmental issues; but overall, the average citizen (and quite a few politicians in both parties) could be described as somewhere between ambivalent and unsure about the alleged causes or effects of a warming climate.*

It probably did not help that this was the same period when we all first logged onto the internet, which would prove to be a wonderful tool for obtaining information and disinformation at the same time. And to be sure, the extractive industries, and other vested interests bound to fossil fuels, were eager to provide erudite sounding counter-narratives to the mountain of evidence proving that human activity was in fact changing the climate in dangerous ways. Then, on January 24, 2006, An Inconvenient Truth debuted at the Sundance Film Festival.

Directed by Davis Gugenheim, the film’s most effective quality, in my view, was that it reintroduced the purportedly “wooden” politician Al Gore as a relatable, flesh-and blood human being, whose humor and humility rescues the didactic lecture from becoming either dry or a ninety-minute scold. Upgrading Gore’s visual aids to high-resolution slides using Apple Keynote certainly provided enough color and scope to fill the big screen, but the critical element was Gore’s humanity. 

“Davis was adamant that the film had to work emotionally,” says Bender. “It’s a deceptively simple movie, but we spent a lot of energy in post-production trying to find the right balance between this man’s personal journey and the science.” By interweaving Gore’s presentation with glimpses into his life story—anecdotes in which he admits his own frailties and errors—the overall result of the film was that it turned carbon dioxide into a kitchen-table issue. And that was the significance of An Inconvenient Truth.

Seemingly overnight, as a direct result of the movie’s success, concepts like “carbon footprint” entered mainstream conversation and classroom curricula across the U.S. and abroad. While the opposition was by no means silenced, the film awakened enough public consciousness that multiple business segments suddenly needed to respond to a new consumer demand to “go green.” 

Consumer Change Leads to Corporate Change

To be sure, not all business initiatives were substantive, but by and large, the mandate to promote green led to tangible and lasting changes in corporate culture and governance. Sustainability went from a crunchy, esoteric notion to a board-room best practice, and this, in turn, spawned new investment in the development of alternative and more efficient energy solutions. “Practically every Fortune 500 company has a sustainability officer or sustainability program today, and that was not true fifteen years ago,” says my longtime friend Jeff Turrentine, a writer and editor for On Earth, the publication of the Natural Resources Defense Council. 

An Inconvenient Truth was not the first conversation about the economics of sustainability, and Gore was hardly alone in asserting that carbon reduction, aside from being existentially mandatory, is compatible with economic growth. Many environmental experts, technology innovators, and political leaders (even bipartisan ones) had a solid grasp on the two uncontroversial facts about carbon mitigation: 1) that burning less fuel saves money and is, therefore, profitable; and 2) that green innovation represented a whole new sector of untapped economic opportunity.

That conversation was already taking place in various pockets in the both the public and private sectors for at least a decade or more before An Inconvenient Truth was released. But the film gets credit for igniting those latent sensibilities in the minds of the general public and for spawning the aforementioned consumer demand for change. The movie was catalytic in fostering market conditions in which multiple industries and municipalities discovered what many environmentalists had tried to explain for years—that working to reduce greenhouse gas emissions happens to be good for business. 

So, while the Trump administration has arrogantly stumbled backwards on environmental policy—evangelizing climate science denialism out of sheer spite—the green investments made by both the private and public sectors over the last decade and a half are unlikely to be reversed—especially when those investments are yielding positive returns. It is still not enough, but it is most likely where the best hope still remains. And perhaps there is no better example of this paradigm than the city of Georgetown, Texas, featured in An Inconvenient Sequel: Truth to Power (2016). 

Mayor Dale Ross proudly tells Gore, on camera, that his city is powered by 90% renewable energy (at the time of filming), despite being “the reddest city in the reddest county in Texas.” Why? Because, to paraphrase Ross, it saves his constituents money, and because you don’t need to be a scientist to understand that less pollution in the air is a good thing. This is why I will argue that An Inconvenient Truth went beyond merely “raising awareness.” It directly created a public mandate that led to the kind of common sense approach taken by Ross, who reminds us that there is nothing “conservative” about waste or higher prices.

The countless market effects that can be attributed to a single film—in which the information was neither new nor hard to grasp—remind us that creative expression is essential. In a time when IP deniers argue that copyright functions solely as a barrier to information, the story of An Inconvenient Truth belies the naïve, tech-utopian assumption that access to information alone is sufficient—least of all when utter nonsense gallops across digital platforms like a fifth horse of the apocalypse. Facts alone do not speak meaningfully to people. Invariably, it takes creativity to inspire us, even when it comes to saving our own lives. 

*It must be acknowledged that the climate issue had Republican champions in those days, and there is an extent to which Gore, as the most prominent messenger, became a more attractive political target after the 2008 election, when the GOP became more dependent on the fossil fuel industries.

Photos: “Al Gore” Lisbon, 2017. By G Holland.

“Earthrise” Apollo 8, December 24, 1968. NASA.

Wrestling With the Ghost of Queen Anne: A Nerdy Look at Allen v. Cooper

Most readers know that the conflict in Allen v. Cooper began when the State of North Carolina made unlicensed use of Rick Allen’s copyrighted AV and photographic works documenting recovery and research of Blackbeard’s flagship Queen Anne’s Revenge. On March 23rd, the Court ruled that Allen was barred from bringing suit against the State under the principle of “sovereign immunity,” as expressed in the Eleventh Amendment, and further reiterated that this immunity could not be abrogated, even for a plaintiff defending a constitutional right, expressly protected by federal law, the CRCA of 1990.  My last post about this case discussed the court’s reasoning.

As a creators advocate, I was disappointed that the Court found itself guided by precedent to scuttle Allen’s claim. But I will also admit that, as a history geek, and one who likes a good coincidence, it is hard not to appreciate the fact that the pirate ship at the center of this story carries the mind back a few centuries across the tempests of Anglo-American legal precedents, with which the Supreme Court found itself contending in 2020.

What may be immediately resonant to the copyright nerd is that the pirate ship Queen Anne’s Revenge, shares the eponym with the English legislation, the Statute of Anne, passed in 1710. Often referred to as the first authors’ copyright law, the Statute of Anne was the model for America’s first copyright statute in 1790. But there is more beneath the paint on Blackbeard’s ship than nominal happenstance. If you will indulge me …

The Divine Right Still With Us?

We Americans have generally been taught to think of the Revolution as an outright rejection of the “divine right of kings,” and that the cheekiness of the war was punctuated by an equally audacious Constitution that directly expresses contempt for nobility and royal prerogative. But, as almost any lawyer will tell you, this ideological departure (on paper) from the mother country was not matched by a clean break from English law or custom. How could it have been when the Framers and citizens of new America were, after all, English?

So more than 230 years after kicking George III in the pants, faint remnants of the “divine right” still echo in the halls of American jurisprudence, and still befuddle large segments of the population, who earnestly declare that certain individuals are “sent by God” to lead the United States. That profoundly un-American sensibility is a much bigger sociological phenomenon than I will presume to address here, but in a case like Allen v. Cooper, the “divine” anachronism takes the form of “state sovereign immunity,” which the Supreme Court described thus in 1999 in Alden v. Maine:

“The doctrine that a sovereign could not be sued without its consent was universal in the States when the Constitution was drafted and ratified. In addition, the leading advocates of the Constitution gave explicit assurances during the ratification debates that the Constitution would not strip States of sovereign immunity.”

There is an extent to which that opinion alludes to the haggling at the founding period, which was necessary to encourage ratification of the Constitution by those factions who would have preferred—indeed had expected—that the newly independent states would be separate (i.e. sovereign) nations after the war. At the same time, however, the notion embodied in the word sovereign is arguably a holdover from English common law, an epic tale in which the English hacked away at, though never quite eradicated, the privileges of its monarchs to do whatever the hell they wanted.

Queen Anne’s Revenge – Against Whom?

At present, historians can only speculate as to why the pirate William Thatch (Teach), a.k.a. Blackbeard renamed his captured French ship the Queen Anne’s Revenge in 1717 or, indeed, who or what the metaphorical target of the late queen’s retribution might have been. It is guessed by some that the British Navy sailor turned pirate espoused a fealty for the Jacobite cause to restore the Stuart line to the throne; or it is theorized that because Thatch fought for the British in “Queen Anne’s War,” the rechristening was a dig at the French from whom he’d commandeered the vessel. Apropos the Jacobite theory, Anne was indeed the last of the Stuart monarchs, and when she died in 1714, the Crown passed to her husband George I, a prince of Denmark and a German speaker. Consequently, the disgruntled Jacobites invoked the “divine right” to argue that the Stuarts were the true heirs to the throne; but, in truth, Anne’s ascension itself could hardly have supported any divine sensibilities.

In fact the Stuart dynasty, beginning with James I in 1603, was rather well pummeled by the unrest that rocked England for nearly two centuries over the matter of whether the Crown or the Parliament was supreme—a fact dramatically manifest in the beheading of Charles I in 1649 following civil war. In this long and byzantine history, all royal prerogatives were, naturally, tethered to the question of the “divine right,” which was of course complicated by factions of religious faith. 

While there is no hope of unpacking all that history in a short post, suffice to say that Queen Anne’s ascension to reign over Great Britain in 1707, was a byproduct of the Glorious Revolution that deposed her father James II, and was more generally a result of forces that had substantially limited royal prerogatives. Moreover, Anne’s reign was reportedly marked by a fairly judicious exercise of her authority in balance with England’s nascent republicanism. So if Blackbeard did name his newly acquired flagship in a fit of Jacobite zeal, Queen Anne was hardly an avenging spirit in that regard. Likewise, the copyright law that bears her name is something of an anti-monarchical milestone itself.

The Statute of Anne – A Break With the Sovereign

The short description of the Statute of Anne is that it was the first in Anglo-American law to transform copyright from a publisher’s right into an author’s right. The full story weaves in and out of the aforementioned political/religious turmoil, beginning with the fact that right is not the correct word to describe the monopoly privileges granted by English sovereigns to the more than 100 trade guilds of London, including the organization of booksellers known as the Stationers’ Company. The exclusive “right” to publish—a monopoly that was ad hoc at best—may be described as a proto-copyright regime, but one that has little resemblance to modern copyright law. Regardless, the exclusive privileges granted to the Stationers’ Company, and every other guild in London, were among the royal prerogatives that were often at the heart of conflict in the larger narrative of controversy between royalists and parliamentarians. 

It is true that one important feature of the Statute of Anne is that the preamble states that its purpose is to protect authors from unlicensed printing of their manuscripts. Scholars also know the more complicated history that the bill was catalytic to still-murmuring debate as to whether the author’s right is grounded in natural rights or is purely a creature of statute. For the purposes of this post, though, I would note that the Statute of Anne, as an act of Parliament interceding on behalf of authors, is exemplary of the diminished prerogatives of the Crown by the end of the seventeenth century. It represents not only a diminishment in the power of the Stationers’ Company, but a diminishment in the power of the monarch to grant privileges at all. 

American Copyright & Citizen Sovereignty

Although the American Framers did borrow both rationale and key mechanisms from the Statue of Anne for the first American Copyright Act of 1790, we cannot overstate the significance of the intellectual property clause in Article I as both a symbolic and pragmatic split with the mother country, and the baggage embodied in her statute. Article I, section 8, paragraph 8 is the first and only mention of an individual right in the Constitution prior to adoption of the Amendments. And particularly with regard to copyright (because it protects expression), I would argue that the clause reinforces the notion that the individual citizen is sovereign, and, therefore, Congress may adopt laws necessary to protect the citizen’s dominion over the products of his or her mind. So, how is it that the “sovereign” State is allowed to invade that principle?

Any number of scholars will very reasonably maintain that American “state sovereign immunity,” affirmed in the Eleventh Amendment in 1795, is both divorced from the spirit of monarchical absolutism and has pragmatic purpose in our federalist system, which is why many legal professionals will use the term “Eleventh Amendment immunity.” Nevertheless, as a practical matter, it cannot be denied that Rick Allen was unable to avail himself of his Constitutional right to hold the State of North Carolina liable for taking his property. Much like kings and queens used to do to their subjects. So the words sovereign immunity are not wholly emancipated from their feudal origins. 

American copyright law became something very different from its English precedents, not least because of the First Amendment. England’s proto-copyright regimes were, for centuries, entangled with the state’s authority to approve the publication or distribution of a work in the first place, and many of these regimes lasted into the twentieth century. For instance, the legal basis for the Master of the Revels, who approved works for the stage in Shakespeare’s time, was still extant, albeit in a limited form, until 1968. 

The sovereign right of the American citizen to create more or less whatever he or she wants (notwithstanding a few bouts with obscenity laws), represented a significant break with those ancient ties. And a consequence of that split was the greatest output of professional creative works anywhere the world. Yet, as we see in Allen v. Cooper, modern jurisprudence remains haunted by these fragments of history, drawing us back to a time when pirates and princes took what they wanted, and citizens could hardly tell the difference between the two.   

Anne photo: by Chris Dorney 

Pirate image by: neelix3k

Document: Statute of Anne, London (1710), Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, www.copyrighthistory.org

Internet Archive Uses Pandemic to Justify Looting

When I borrow a sentiment from Ayn Rand, you can bet I gave the matter some serious thought. But looting is the one word that comes to mind in response to last week’s move by the Internet Archive to launch what they call the National Emergency Library. Believing the coronavirus pandemic provides both a moral and legal foundation for its decision, IA suddenly made over one million published works, including contemporary books in print, available to “borrow” worldwide. And not even on a one-reader-at-a-time basis like a library. They just opened the floodgates. 

This “emergency library” is neither moral nor legal nor even necessary to meet a need suddenly created by the pandemic. Yet what is most galling about the IA in this regard is the pretense to public service and largesse against the backdrop of a real emergency. One cannot be “generous” with the labor and property of others, particularly those who are, themselves, vulnerable to the economic hardship caused by crisis. That is the true spirit of looting.  

Most authors are barely insulated from financial difficulty in the best of times. Many writers you might imagine as quite well off, some who even have august words like Pulitzer next their names, are among those who (as the economic reporters describe) could not lay hands on $500 in an emergency. And now we are all in the midst of an emergency. It is of course too soon to predict what long-term results will follow the ebb of Covid-19, but it is certain that millions of people are suddenly out of work right now. And among those so affected are creative workers, who generally earn average to below-average incomes under normal circumstances.

The mean income for authors from writing alone is $20,300, and the supplemental work that many of them do may presently be foreclosed, as it is for millions of people in multiple business sectors. If anything, it would seem that this moment of forced solitude and inertia is the perfect time to promote buying (or legally borrowing) a few books, rather than infringing the copyrights on about 1.4 million. 

In practical terms, the coronavirus has not reduced online access to cheap or free books, but it did prompt several major publishers to address educational needs by making digital books and other resources freely available to schools and individual students. Hence, IA’s claim that its “emergency library” was launched, in part, to make works available for students is a dubious one at best. Instead, the move reeks of opportunism—a stunt to promote the misguided anti-copyright agenda of IA’s founder, Brewster Kahle. Moreover, it reeks of cynicism in a moment when tens of thousands of creative workers are suddenly unemployed.

Musical artists cannot play live venues. Theaters are shuttered. Motion picture and TV production is at a near standstill. Book authors cannot travel, host promotional events, or lecture. Photographers cannot travel or do shoots that involve human subjects or crew. And many journalists who are still able to work are risking their lives to do so. At the same time, members of the creative community have responded to recession and fear in positive and useful ways—donating money, streaming or broadcasting free living-room concerts, making first-run movies available online, streaming theater performances, hosting online art classes for children, and the list goes on.  

By contrast, it is very hard to see Internet Archive’s “emergency library” as anything other than anti-copyright evangelism. In part, this view is supported by the fact that the library was launched on such shaky legal ground, that only the milieu of a major crisis could obscure the organization’s flagrant disregard for authors. In its response last week, the Authors Guild wrote the following:

“IA has made far-fetched claims that it is protected by fair use, but an appellate court case last year squarely decided the issue against them, as we advised them it would. There is simply no basis in the law for scanning and making copies of entire books available to the public. Now, IA has gone further and stripped away the one-user-at-a-time limitation so that any number of readers can access any of 1.4 million books at any time through a couple clicks….”

There are multiple exceptions and carveouts in copyright law for libraries and archives, and there are historic precedents for national emergencies. But those exceptions have limits and conditions designed to balance public service with the authors’ right to earn revenue for their work through legal distribution systems. Specifically, the statutory carveouts do not even apply to archives like IA, which is presumably why they assert that the pandemic somehow allows them to make these books available under the doctrine of fair use. 

This unfounded legal theory is exemplary of the archive’s ideological opposition to copyright. Kahle & Co. are of course entitled to advocate any view they want, but to camouflage their agenda in the fog of a pandemic is unconscionable. More particularly, the Internet Archive should not be surprised if, after this emergency has passed, they find themselves on the losing end of a lawsuit. If for no other reason, it may be necessary to affirm that their appeal to “emergency powers” under fair use in this case is legally untenable.  

As I wrote once before, the Internet Archive can be a wonderful service when used within the constraints of legality. Having just finished writing a book myself, I will admit that my bibliography has at least a half-dozen citations to IA’s digitized books from the very early twentieth or mid-nineteenth century (i.e. in the public domain). Providing access to materials that are otherwise hard to find without a lot of time and expense is the best and highest purpose of a digital archive. Such repositories can be invaluable to authors who, as mentioned, have limited resources to invest in their research. But if, while providing a useful service, the same archive seeks to degrade the already tenuous market for books still under copyright, then the whole value proposition becomes a vicious cycle of self-destruction. Not unlike looting during an emergency.