The Public Domain Part 2

I tried to explain this to my son. I showed him that there were some works that could be seen online. I took him to the online photograph library, meaning to show him the wealth of amazing historical photographs. Instead, I found myself brooding over the lengthy listing of legal restrictions on the images and the explanation that reproduction of protected items may require the written permission of the copyright owners and that, in many cases, only indistinct and tiny thumbnail images are displayed to those searching from outside the Library of Congress "because of potential rights considerations." The same was true of the scratchy folk songs from the twenties or the early film holdings. The material was in the Library, of course--remarkable collections in some cases, carefully preserved, and sometimes even digitized at public expense. Yet only a tiny fraction of it is available online. (There is a fascinating set of Edison's early films, for example.) 30

Most of the material available online comes from so long ago that the copyright could not possibly still be in force. But since copyright lasts for seventy years after the death of the author (or ninety-five years if it was a corporate "work for hire"), that could be a very, very long time indeed. Long enough, in fact, to keep off limits almost the whole history of moving pictures and the entire history of recorded music. Long enough to lock up almost all of twentieth-century culture.

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But is that not what copyright is supposed to do? To grant the right to restrict access, so as to allow authors to charge for the privilege of obtaining it? Yes, indeed. And this is a very good idea. But as I argue in this book, the goal of the system ought to be to give the monopoly only for as long as necessary to provide an incentive. After that, we should let the work fall into the public domain where all of us can use it, transform it, adapt it, build on it, republish it as we wish. For most works, the owners expect to make all the money they are going to recoup from the work with five or ten years of exclusive rights. The rest of the copyright term is of little use to them except as a kind of lottery ticket in case the work proves to be a one-in-a- million perennial favorite. The one-in-a-million lottery winner will benefit, of course, if his ticket comes up. And if the ticket is "free," who would not take it? But the ticket is not free to the public. They pay higher prices for the works still being commercially exploited and, frequently, the price of complete unavailability for the works that are not.

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Think of a one-in-a-million perennial favorite--Harry Potter, say. Long after J. K. Rowling is dust, we will all be forbidden from making derivative works, or publishing cheap editions or large-type versions, or simply reproducing it for pleasure. I am a great admirer of Ms. Rowling's work, but my guess is that little extra incentive was provided by the thought that her copyright will endure seventy rather than merely fifty years after her death. Some large costs are being imposed here, for a small benefit. And the costs fall even more heavily on all the other works, which are available nowhere but in some moldering library stacks. To put it another way, if copyright owners had to purchase each additional five years of term separately, the same way we buy warranties on our appliances, the economically rational ones would mainly settle for a fairly short period.

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Of course, there are some works that are still being exploited commercially long after their publication date. Obviously the owners of these works would not want them freely available online. This seems reasonable enough, though even with those works the copyright should expire eventually. But remember, in the Library of Congress's vast, wonderful pudding of songs and pictures and films and books and magazines and newspapers, there is perhaps a handful of raisins' worth of works that anyone is making any money from, and the vast majority of those come from the last ten years. If one goes back twenty years, perhaps a raisin. Fifty years? A slight raisiny aroma. We restrict access to the whole pudding in order to give the owners of the raisin slivers their due. But this pudding is almost all of twentieth- century culture, and we are restricting access to it when almost of all of it could be available.

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If you do not know much about copyright, you might think that I am exaggerating. After all, if no one has any financial interest in the works or we do not even know who owns the copyright, surely a library would be free to put those works online?

Doesn't "no harm, no foul" apply in the world of copyright? In a word, no. Copyright is what lawyers call a "strict liability"

system. This means that it is generally not a legal excuse to say that you did not believe you were violating copyright, or that you did so by accident, or in the belief that no one would care, and that your actions benefited the public. Innocence and mistake do not absolve you, though they might reduce the penalties imposed. Since it is so difficult to know exactly who owns the copyright (or copyrights) on a work, many libraries simply will not reproduce the material or make it available online until they can be sure the copyright has expired--which may mean waiting for over a century. They cannot afford to take the risk.

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What is wrong with this picture? Copyright has done its job and encouraged the creation of the work. But now it acts as a fence, keeping us out and restricting access to the work to those who have the time and resources to trudge through the stacks of the nation's archives. In some cases, as with film, it may simply make the work completely unavailable.

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So far I have been talking as though copyright were the only reason the material is not freely available online. But of course, this is not true. Digitizing costs money (though less every year) and there is a lot of rubbish out there, stuff no one would ever want to make available digitally (though it must be noted that one man's rubbish is another man's delight). But that still leaves vast amounts of material that we would want, and be willing to pay, to have digitized. Remember also that if the material were legally free, anyone could get in on the act of digitizing it and putting it up. Google's much-heralded effort to scan the books in major libraries is just the kind of thing I mean. But Google is being sued for violating copyright--even though it allows any author to "opt out" of its system, and even though under the Google system you cannot click to get the book if it is still under copyright, merely a snippet a few sentences long from the book.

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If you are shaking your head as you read this, saying that no one would bother digitizing most of the material in the archives, look at the Internet and ask yourself where the information came from the last time you did a search. Was it an official and prestigious inst.i.tution? A university or a museum or a government? Sometimes those are our sources of information, of course. But do you not find the majority of the information you need by wandering off into a strange click-trail of sites, amateur and professional, commercial and not, hobbyist and entrepreneur, all self-organized by internal referrals and search engine algorithms? Even if Google did not undertake the task of digitization, there would be hundreds, thousands, maybe millions of others who would--not with Google's resources, to be sure. In the process, they would create something quite remarkable.

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The most satisfying proofs are existence proofs. A platypus is an existence proof that mammals can lay eggs. The Internet is an existence proof of the remarkable information processing power of a decentralized network of hobbyists, amateurs, universities, businesses, volunteer groups, professionals, and retired experts and who knows what else. It is a network that produces useful information and services. Frequently, it does so at no cost to the user and without anyone guiding it. Imagine that energy, that decentralized and idiosyncratically dispersed pattern of interests, turned loose on the cultural artifacts of the twentieth century. Then imagine it coupled to the efforts of the great state archives and private museums who themselves would be free to do the same thing. Think of the people who would work on Buster Keaton, or the literary cla.s.sics of the 1930s, or the films of the Second World War, or footage on the daily lives of African-Americans during segregation, or the music of the Great Depression, or theremin recordings, or the best of vaudeville.

Imagine your Google search in such a world. Imagine that Library of Congress. One science fiction writer has taken a stab. His character utters the immortal line, "Man, you'll get my Library of Congress when you pry my cold dead fingers off it!" 9 39

Familiar with the effect of this kind of train of thought on his father, my son had long since wandered off in search of a basketball game to watch. But I have to admit his question was something of an epiphany for me: Where do you click to get the actual book?

40

The response I get from a lot of people is that this vision of the Library of Congress is communism, pure and simple. Such people view Google's attempt to digitize books as simple theft.

Surely it will destroy the incentives necessary to produce the next beach novel, the next academic monograph, the next teen band CD, the next hundred-million-dollar movie? But this mistakes my suggestion. Imagine a very conservative system.

First, let us make people demonstrate that they want a copyright, by the arduous step of actually writing the word copyright or the little (C) on the work. (At the moment, everyone gets a copyright as soon as the work is written down or otherwise fixed, whether they want one or not.) But how long a copyright? We know that the majority of works are only valuable for five or ten years. Let us give copyright owners more than double that, say twenty-eight years of exclusive rights. If prior experience is any guide, 85 percent of works will be allowed to enter the public domain after that period. If that isn't generous enough, let us say that the small proportion of owners who still find value in their copyright at the end of twenty-eight years can extend their copyright for another twenty-eight years. Works that are not renewed fall immediately into the public domain. If you check the register after twenty- eight years and the work has not been renewed, it is in the public domain. Works that are renewed get the extra time.

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Now this is a conservative suggestion, too conservative in my view, though still better than what we have now. Is it feasible?

It would be hard to argue that it is not. This pretty much was the law in the United States until 1978. (My system is a little simpler, but the broad strokes are the same.) Since that point, in two broad stages, we have moved away from this system at the very moment in history when the Internet made it a particularly stupid idea to do so.

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How have we changed the system? We have given copyrights to the creator of any original work as soon as it is fixed, so that you, reader, are the author of thousands of copyrighted works.

Almost everything up on the Internet is copyrighted, even if its creators do not know that and would prefer it to be in the public domain. Imagine that you want to make a doc.u.mentary and use a film clip that a student filmmaker has put up on his home page. Perhaps you want to adapt the nifty graphics that a high school teacher in Hawaii created to teach her calculus cla.s.s, thinking that, with a few changes, you could use the material for your state's K-12 physics program. Perhaps you are a collage artist who wishes to incorporate images that amateur artists have put online. None of the works are marked by a copyright symbol. Certainly they are up on the Internet, but does that mean that they are available for reprinting, adaptation, or incorporation in a new work?

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In each of these cases, you simply do not know whether what you are doing is legal or not. Of course, you can take the risk, though that becomes less advisable if you want to share your work with others. Each broadening of the circle of sharing increases the value to society but also the legal danger to you.

What if you want to put the course materials on the Net, or publish the anthology, or display the movie? Perhaps you can try to persuade your publisher or employer or distributor to take the risk. Perhaps you can track down the authors of every piece you wish to use and puzzle through the way to get a legal release from them stating that they give you permission to use the work they did not even know they had copyright over. Or you can give up. Whatever happens, you waste time and effort in trying to figure out a way of getting around a system that is designed around neither your needs nor the needs of many of the people whose work you want to use.

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Apart from doing away with the need to indicate that you want your works to be copyrighted, we have lengthened the copyright term. We did this without any credible evidence that it was necessary to encourage innovation. We have extended the terms of living and even of dead authors over works that have already been created. (It is hard to argue that this was a necessary incentive, what with the works already existing and the authors often being dead.) We have done away with the need to renew the right. Everyone gets the term of life plus seventy years, or ninety-five years for corporate "works for hire." All protected by a "strict liability" system with scary penalties. And, as I said before, we have made all those choices just when the Internet makes their costs particularly tragic.

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In sum, we have forgone the Library of Congress I described without even apparently realizing we were doing so. We have locked up most of twentieth-century culture and done it in a particularly inefficient and senseless way, creating vast costs in order to convey proportionally tiny benefits. (And all without much complaint from those who normally object to inefficient government subsidy programs.) Worst of all, we have turned the system on its head. Copyright, intended to be the servant of creativity, a means of promoting access to information, is becoming an obstacle to both.

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That, then, is one example of the stakes of the debate over intellectual property policy. Unfortunately, the problem of copyright terms is just one example, one instance of a larger pattern. As I will try to show, this pattern is repeated again and again in patents, in trademarks, and elsewhere in copyright law. This is not an isolated "glitch." It is a complicated but relentless tendency that has led to a hypertrophy of intellectual property rights and an a.s.sault on the public domain. In fact, in many cases, the reality is even worse: there appears to be a complete ignorance about the value of the public domain. Property's opposite, its outside, is getting short shrift.

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To paraphrase a song from my youth, "how did we get here?" Where should we turn to understand the role of intellectual property in the era of the Internet and the decoding of the human genome?

We could turn to the cutting edge of technology or to economics or information theory. But none of those would be as useful a starting place as a letter that was written about two hundred years ago, using a high-tech quill pen, about a subject far from the digital world.

Chapter 2: Thomas Jefferson Writes a Letter 1

On August 13, 1813, Thomas Jefferson took up his pen to write to Isaac McPherson.1 It was a quiet week in Jefferson's correspondence. He wrote a letter to Madison about the appointment of a tax a.s.sessor, attempted to procure a government position for an acquaintance, produced a fascinating and lengthy series of comments on a new "Rudiments of English Grammar,"

discussed the orthography of nouns ending in "y," accepted the necessary delay in the publication of a study on the anatomy of mammoth bones, completed a brief biography of Governor Lewis, and, in general, confined himself narrowly in subject matter.2 But on the 13th of August, Jefferson's mind was on intellectual property, and most specifically, patents.

2

Jefferson's writing is, as usual, apparently effortless. Some find his penmanship a little hard to decipher. To me, used to plowing through the frenzied chicken tracks that law students produce during exams, it seems perfectly clear. If handwriting truly showed the architecture of the soul, then Jefferson's would conjure up Monticello or the University of Virginia. There are a few revisions and interlineations, a couple of words squeezed in with a caret at the bottom of the line, but for the most part the lines of handwriting simply roll on and on--"the fugitive fermentation of an individual brain,"3 to quote a phrase from the letter, caught in vellum and ink, though that brain has been dust for more than a century and a half.

3

I love libraries. I love the mushroom smell of gently rotting paper, the flaky crackle of ma.n.u.scripts, and the surprise of matching style of handwriting with style of thought. Today, though, I am viewing his letter over the Internet on a computer screen. (You can too. The details are at the back of the book.) 4

I think Jefferson would have been fascinated by the Internet.

After all, this was the man whose library became the Library of Congress,4 who exemplifies the notion of the brilliant dabbler in a hundred fields, whose own book collection was clearly a vital and much consulted part of his daily existence, and whose vision of politics celebrates the power of an informed citizenry. Admittedly, the ma.s.sive conflicts between Jefferson's announced principles and his actions on the issue of slavery have led some, though not me, to doubt that there is any sincerity or moral instruction to be found in his words.5 But even those who find him a sham can hardly fail to see the continual and obvious joy he felt about knowledge and its spread.

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In the letter to Isaac McPherson, a letter that has become very famous in the world of the digerati,6 this joy becomes manifest.

The initial subject of the correspondence seems far from the online world. McPherson wrote to Jefferson about "elevators, conveyers and Hopper-boys." Specifically, he wanted to know Jefferson's opinion of a patent that had been issued to Mr.

Oliver Evans. Jefferson devotes a paragraph to a recent retrospective extension of patent rights (he disapproves) and then turns to Evans's elevators.

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Patents then, as now, were only supposed to be given for inventions that were novel, non.o.bvious, and useful. Jefferson had considerable doubt whether Evans's device, essentially a revolving string of buckets used to move grain, actually counted as "an invention." "The question then whether such a string of buckets was invented first by Oliver Evans, is a mere question of fact in mathematical history. Now, turning to such books only as I happen to possess, I find abundant proof that this simple machinery has been in use from time immemorial." Jefferson cites from his library example after example of references to the "Persian wheel"--a string of buckets to move water. The display of scholarship is effortless and without artifice. If the device existed to move water, he declares, Mr. Evans can hardly patent it to move grain. "If one person invents a knife convenient for pointing our pens, another cannot have a patent right for the same knife to point our pencils. A compa.s.s was invented for navigating the sea; another could not have a patent right for using it to survey land."7 7

So far as we can tell, this was the only part of the letter that interested McPherson. Later correspondence indicates that he had a pamphlet printed questioning the patent.8 But while it is impressive to see Jefferson's easy command of historical evidence or his grasp of the importance of limiting the subject matter, scope, and duration of patents, these qualities alone would not have given the letter the fame it now has. It is when Jefferson turns to the idea of intellectual property itself that the letter becomes more than a historical curiosity. In a couple of pages, quickly jotted down on a humid August day in 1813, he frames the issue as well as anyone has since.

8

He starts by dismissing the idea "that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs." In lines that will sound strange to those who a.s.sume that the framers of the Const.i.tution were property absolutists, Jefferson argues that "stable ownership" of even tangible property is "a gift of social law." Intellectual property, then, has still less of a claim to some permanent, absolute, and natural status.

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[W]hile it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even an hereditary right to inventors. It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it, but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property.9 10

Jefferson's point here may seem obscure to us. We are not used to starting every argument from first principles. But it is in fact quite simple. It is society that creates property rights that go beyond mere occupancy. It does so for several reasons--reasons of both practicality and natural justice.

(Elsewhere in his writings, Jefferson expands on this point at greater length.) One of those reasons has to do with the difficulty, perhaps even the impossibility, of two different people having full and unfettered ownership of the same piece of property simultaneously. Another linked reason comes from the practicality of excluding others from our property, so that we can exploit it secure from the plunder or sloth of others. The economists you encountered in Chapter 1 have, with their usual linguistic felicity, coined the terms "rivalrous" and "excludable" to describe these characteristics.

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With rivalrous property, one person's use precludes another's.

If I drink the milk, you cannot. Excludable property is, logically enough, property from which others can easily be excluded or kept out. But ideas seem to have neither of these characteristics.