2006-07-28

Why the Public Domain Matters

By David Bollier

[From the corresponding section of Public Knowledge]

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"If I have seen further, it is by standing on the shoulders of giants." Isaac Newton

This information isn't meant to promote "stealing" ideas, nor does it attack the rights of authors and creators, inventors and innovators. It is simply meant to get us all thinking about our shared cultural heritage and about how many things -- great works of art and literature, contemporary movies and dime-store novels, and even innovations in science and software -- are the result of a kind of information "infection."

Intellectual innovation -- ideas in whatever form -- are the result of a chain reaction that may happen immediately or last for centuries.People live in communities, not in isolation. So do ideas. Communities of information have to be passed down from one generation to the next and spread from one society to another.

A Wellspring of Creativity

The public domain is, in a very real sense, the catalyst and wellspring for creativity and innovation. Where would Disney be without the Brothers Grimm, Victor Hugo, Hans Christian Anderson, Kipling, or classical mythology? Where would Aaron Copland have been without American folk songs? Picasso without African art? Even Duchamp without his urinal? Public domain appropriators, one and all.

It is part of our role in life to make songs and stories our own, to transform pop culture into what the sociologist Gary Fine calls idioculture, the idiosyncratic adaptation of mass culture that occurs in families and communities. An authentic cultural democracy, Don Adams and Arlene Goldbard have noted, "requires active participation in cultural life, not just passive consumption of cultural products."

The Economic Value of the Public Domain: A Free (or pretty darn cheap) Public Domain

There is another type of value associated with the public domain -- an economic value. Simply stated, works in the public domain cost less. The reason you can purchase The Iliad for a song is because no one owns it. No royalty costs need to be figured into the replication costs. Just as copyright offers an incentive to creators, so too the public domain, with its low costs, offer creators an economic incentive of a sort. It offers cheap content -- to be used, reformulated, and recast. West Side Story emerges from Shakespeare's Romeo and Juliet; Amadeus emerges from the music of Mozart and Salieri.

Preserving a Healthy Public Domain

So, what else is the public domain for than for adapting ancient stories and telling them in updated and different situations? The public domain is part of a healthy information environment, an ecosystem of information. To remain healthy and robust, a balance must exist between licenses, copyrights, patents, and freely available information. Primarily due to new legislation responding to new technologies, the information commons has fallen out of balance. Nothing new will really enter the public domain for the next 20 years. This will have a major impact of people's need to communicate, to share ideas, to pass down traditional knowledge, to participate in popular culture. Whether a writer or scientist, issues surrounding Intellectual Property and the Public Domain affect us all. Journalists who are being forced to sign over the rights to their writings for the next 95 years to their employers will be allied with the genetic researchers who can't study breast cancer genes because of patents.

Contributing to the Public Domain

Recognizing the intrinsic value of this information commons and the public domain is the point of this book. So, say you've been convinced? Now what?

Consider donating works to the public domain or to consortiums like the Creative Commons.

Think about what things are too valuable to be owned. Consider that copyright protection can sometimes encourage new artists and creators to keep traditional works alive. Think about the compromises that we can make so that creators and consumers both get a fair shake financially and in terms of access.



Animation Empire: A Story of Walt Disney

It could be argued that Disney is one of the most frequent appropriators of public domain characters.

Walt Disney (1901-1966) was a pioneer animator, producer and entrepreneur. Starting with Little Red Riding Hood in 1922, Disney animated fairy tales throughout the 20th century. The success of "Disney's Folly" the feature length cartoon of Snow White and the Seven Dwarves (1937) paved the way for Disney Inc.'s eventual domination of the children's fairy tales industry with productions of Pinocchio (1940), Fantasia (1940), Dumbo (1941), Cinderella (1950), Alice in Wonderland (1951), Peter Pan (1953), Sleeping Beauty (1959), and Mary Poppins (1963) within Walt Disney's lifetime.

The characteristic Disney fairy tale formulas were evident from the 1937 Snow White. Since the stories were generally short and simple, Disney added material from the formula of early melodramas, Heroes, heroines, and comic sidekicks. Disney also heightened the treatment of love, sex, and marriage. Formerly treated in a more "matter-of-fact" way in traditional folktales, Disney versions emphasized true love, with love at first sight being the preferred type.

In Snow White, Cinderella, and Sleeping Beauty, all three fall in love with their Princes before the identity of either is fully established. Things that seemed inhumane were also changed - Snow White's evil stepmother falls to her death in a semi-natural catastrophe (a stone rolling down a mountain) rather than being forced to dance in red-hot iron shoes at her stepdaughter's wedding. Disney makes Snow White an orphan. His dwarfs are hardworking and individualized with human characteristics, while Grimms' dwarves are anonymous and play a very small role. Their song - Hi Ho It's Off to Work We Go - calls up the American Depression and the importance of every man's part in the economic recovery. Snow White awakens not when a dwarf stumbles while carrying the glass coffin of the Brothers Grimm tale, but only when she receives a kiss from the prince, the only antidote to the Queen's poison. The fate of Cinderella's stepsisters is not mentioned at all in Disney's version, while the Brother's Grimm version has the stepsisters' eyes pecked out by the heroine's bird allies.

Other Americanization included Disney's simplistic treatment of royalty - either well meaning comic types or utterly malevolent, the portrayal of characters as American teenagers in voice and manner, and the mechanization of magic by emphasizing laboratories, magic wands, and other machines to reference modern American technology. Heroines resemble the American "beauty ideal" of the day - Snow White is flat chested as a flapper, while Cinderella and Sleeping Beauty are Monror-esque in their curves. Ariel in The Little Mermaid (1989) and the other heroines of the 1990s movies are multicultural Barbie doll types.

Works in the public domain inspired a whole line of animated films that Disney used to build a very profitable industry and brand identification. The familiarity of the stories made them accessible to the target audience -- children -- but Disney added their own spin to make them immediately identifiable as Disney products. We can expand this beyond fairy tales. Disney was also inspired by The Jungle Book (Kipling), Peter Pan (Barrie), and Alice in Wonderland (Carroll). Were these works all in the public domain when Disney used them?

2006-07-27

The future of ideas

By Laurence Lessig

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The Internet revolution has come. Some say it has gone. What was responsible for its birth? Who is responsible for its demise?

In The Future of Ideas, Lawrence Lessig explains how the Internet revolution has produced a counterrevolution of devastating power and effect. The explosion of innovation we have seen in the environment of the Internet was not conjured from some new, previously unimagined technological magic; instead, it came from an ideal as old as the nation. Creativity flourished there because the Internet protected an innovation commons. The Internet?s very design built a neutral platform upon which the widest range of creators could experiment. The legal architecture surrounding it protected this free space so that culture and information?the ideas of our era?could flow freely and inspire an unprecedented breadth of expression. But this structural design is changing?both legally and technically.

This shift will destroy the opportunities for creativity and innovation that the Internet originally engendered. The cultural dinosaurs of our recent past are moving to quickly remake cyberspace so that they can better protect their interests against the future. Powerful conglomerates are swiftly using both law and technology to "tame" the Internet, transforming it from an open forum for ideas into nothing more than cable television on speed. Innovation, once again, will be directed from the top down, increasingly controlled by owners of the networks, holders of the largest patent portfolios, and, most invidiously, hoarders of copyrights.

The choice Lawrence Lessig presents is not between progress and the status quo. It is between progress and a new Dark Ages, in which our capacity to create is confined by an architecture of control and a society more perfectly monitored and filtered than any before in history. Important avenues of thought and free expression will increasingly be closed off. The door to a future of ideas is being shut just as technology makes an extraordinary future possible.

With an uncanny blend of knowledge, insight, and eloquence, Lawrence Lessig has written a profoundly important guide to the care and feeding of innovation in a connected world. Whether it proves to be a road map or an elegy is up to us.

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Davis Guggenheim is a film director. He has produced a range of movies, some commercial, some not. His passion, like his father?s before, is documentaries, and his most recent, and perhaps best, film, The First Year, is about public school teachers in their first year of teaching?a Hoop Dreams for public education.

In the process of making a film, a director must "clear rights". A film based on a copyrighted novel must get the permission of the copyright holder. A song in the opening credits requires the rights of the artist performing the song. These are ordinary and reasonable limits on the creative process, made necessary by a system of copyright law. Without such a system, we would not have anything close to the creativity that directors such as Guggenheim have produced.

But what about the stuff that appears in the film incidentally? Posters on a wall in a dorm room, a can of Coke held by the "smoking man", an advertisement on a truck driving by in the background? These too are creative works. Does a director need permission to have these in his or her film?

"Ten years ago", Guggenheim explains, "if incidental artwork . . . was recognized by a common person", then you would have to clear its copyright. Today, things are very different. Now "if any piece of artwork is recognizable by anybody . . . then you have to clear the rights of that and pay" to use the work. "[A]lmost every piece of artwork, any piece of furniture, or sculpture, has to be cleared before you can use it".

Okay, so picture just what this means: As Guggenheim describes it, "[B]efore you shoot, you have this set of people on the payroll who are submitting everything you?re using to the lawyers". The lawyers check the list and then say what can be used and what cannot. "If you cannot find the original of a piece of artwork . . . you cannot use it". Even if you can find it, often permission will be denied. The lawyers thus decide what?s allowed in the film. They decide what can be in the story.

The lawyers insist upon this control because the legal system has taught them how costly less control can be. The film Twelve Monkeys was stopped by a court twenty-eight days after its release because an artist claimed a chair in the movie resembled a sketch of a piece of furniture that he had designed. The movie Batman Forever was threatened because the Batmobile drove through an allegedly copyrighted courtyard and the original architect demanded money before the film could be released. In 1998, a judge stopped the release of The Devil?s Advocate for two days because a sculptor claimed his art was used in the background. These events teach the lawyers that they must control the filmmakers. They convince studios that creative control is ultimately a legal matter.

This control creates burdens, and not just expense. "The cost for me", Guggenheim says, "is creativity. . . . Suddenly the world that you?re trying to create is completely generic and void of the elements that you would normally create. . . . It?s my job to conceptualize and to create a world, and to bring people into the world that I see. That?s why they pay me as a director. And if I see this person having a certain lifestyle, having this certain art on the wall, and living a certain way, it is essential to . . . the vision I am trying to portray. Now I somehow have to justify using it. And that is wrong".

This is not a book about filmmaking. Whatever problems filmmakers have, they are tiny in the order of things. But I begin with this example because it points to a much more fundamental puzzle, and one that will be with us throughout this book: What could ever lead anyone to create such a silly and extreme rule? Why would we burden the creative process?not just film, but generally, and not just the arts, but innovation more broadly?with rules that seem to have no connection to innovation and creativity?

Copyright law, law professor Jessica Litman has written, is filled with rules that ordinary people would respond to by saying, "There can?t really be a law that says that. That would be silly"?yet in fact there is such a law, and it does say just that, and it is, as the ordinary person rightly thinks, silly. So why? What is the mentality that gets us to this place where highly educated, extremely highly paid lawyers run around negotiating for the rights to have a poster in the background of a film about a frat party? Or scrambling to get editors to remove an unsigned billboard? What leads us to build a legal world where the advice a successful director can give to a young artist is this:

I would say to an 18-year-old artist, you?re totally free to do whatever you want. But?and then I would give him a long list of all the things that he couldn?t include in his movie because they would not be cleared, legally cleared. That he would have to pay for them. [So freedom? Here?s the freedom]: You?re totally free to make a movie in an empty room, with your two friends.

A time is marked not so much by ideas that are argued about as by ideas that are taken for granted. The character of an era hangs upon what needs no defense. Power runs with ideas that only the crazy would draw into doubt. The "taken for granted" is the test of sanity; "what everyone knows" is the line between us and them.

This means that sometimes a society gets stuck. Sometimes these unquestioned ideas interfere, as the cost of questioning becomes too great. In these times, the hardest task for social or political activists is to find a way to get people to wonder again about what we all believe is true. The challenge is to sow doubt.

And so it is with us. All around us are the consequences of the most significant technological, and hence cultural, revolution in generations. This revolution has produced the most powerful and diverse spur to innovation of any in modern times. Yet a set of ideas about a central aspect of this prosperity??property??confuses us. This confusion is leading us to change the environment in ways that will change the prosperity. Believing we know what makes prosperity work, ignoring the nature of the actual prosperity all around, we change the rules within which the Internet revolution lives. These changes will end the revolution.

That?s a large claim for so thin a book, so to convince you to carry on, I should qualify it a bit. I don?t mean "the Internet" will end. "The Internet" is with us forever, even if the character of "the Internet" will change. And I don?t pretend that I can prove the demise that I warn of here. There is too much that is contingent, and not yet done, and too few good data to make any convincing predictions. [...]

2006-07-24

Break Down the Bars of Ignorance and Illiteracy

By Project Gutenberg
[as published by the essay contest of Wipout.net; formerly at http://www.wipout.net/essays.html, last access sometime in 2002]

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0. Premise: the Public Domain is an "inalienable right"

You cannot sell it, lease it, or give it away...

Therefore, no one else may legally do this to/for you. Therefore, WIPO is illegal because WIPO interrupts the ongoing expiration periods and makes them even longer.

1. WIPO has only one major priority

Maximize copyright -- minimize the public domain.

WIPO officials want permanent copyright, WIPO officials want everything possible copyrighted.

The result, virtually nothing will be in the public domain; therefore we should wipout WIPO.

2. WIPO and copyright came into existence by very dubious means

So why enshrine them as permanent parts of our legal systems?

WIPO represents the media against the public, so why, and how did it become part of the United Nations?

Copyright only represented the stationers' guild, how and why did it become a permanent and ever-increasing statute of law?

3. This is the fourth "Information Age"

Each Information Age has been stifled by new copyright laws, that outlawed the technological revolutions that created them. The information age we occupy today is actually the fourth such information age... each one destroyed by reactionary copyright:

Year Revolutionary technology Year Reactionary Response
1455+| Gutenberg's Press | 1709 | Statute Of Anne
1860+| Steam/Electric Presses | 1909 | US Copyright Act
1965+| Xerox Machine | 1976 | US Copyright Act
1970 |
to | Internet/World Wide Web | 1998 | US Copyright Act
1990 |

As you can see, each one of these major elements of industrial revolution was responded to in exactly the same luddite manner:

Make it illegal to use new "information age" technologies in a manner that was a perfectly legal use for which they were created!

As you can see, it took hundreds of years to pass copyright law after the invention of Gutenberg's press, but it only took 50 years to outlaw the steam and electric powered "reprint houses" of 100 years ago, and it only took 11 years to respond to Xerox machines, and less than 10 years from the time the internet became a household word.

The responses came faster and faster because no original thought is required to pass a law against an invention it took geniuses years to bring about...

... You just pass a law against anything that brings too much information into the hands, and minds, of the public masses.

Before Gutenberg, It Was Legal To Copy Anything. Why?

Because only the very rich and powerful could copy... It took a salaried scribe a year to copy the average book before Gutenberg, the price of the average book was equal to the price of the average family farm.

After Gutenberg, books were so cheap you could buy them in any village marketplace, there were wagonloads... The salaried scribes did not like this!

Those salaried scribes belonged to the "Stationers' Guild". The Stationers' Guild lobbied like mad against Gutenberg presses.

They lobbied the "Henry's" until there were no more Henry's after Henry VIII: but for all his many faults, he supported the people's right to print over a monopoly by the Stationers' Guild... So then they lobbied his daughter, Elizabeth I, but she was more like Henry than anyone counted on, just ask Mary, Queen of Scots... so then they lobbied Mary's son, James I, of King James' Bible fame, but he was also unwilling to kill off the Gutenberg Revolution just to keep
the Stationers' Guild in business... So then they lobbied William and Mary... And finally, after the turn of two centuries of royal upheaval, they got their monopoly passed as:

"The Statute Of Anne" in 1709...

And then... Overnight!

The number of legal presses dropped to a dozen, all in London!

The number of legal books in print dropped from 6,000 to 600!

Copyright was also a weapon of censorship!

And that, ladies and gentlemen of the jury, was the first use of Copyright Law to stifle an "Information Age".

But it would not be the last... far from it!

These copyrights gave only The Stationers' Guild any rights for the first 14 years of publication; a 100% monopoly that was usually worthless after those first 14 years since most books only stayed in print a short time, and since authors' lifespans weren't all that long back then, and a copyright could only be renewed if the author was still alive...

By the way, The Stationers' Guild would usually publish an extremely inexpensive edition in massive quantities, just as their "copy-right" was about to expire, if the author had not
already expired... very effective at stifling competition from the very source of their publications.

This was the only purpose of this first of our copyright laws!

The 1700's were a century of turmoil, highlighed by revolutions in America and France, successfully challenging the aristocracy that had ruled both since the dawn of history.

Many of our readers may recall a mention of "The Pamphleteers" of the American Revolution, but they never really told us why they were so important!

This is because the people who make our textbooks have an axe to grind, because they really do chop down all the cherry trees.

The reason the Pamphleteers were so important is Copyright!

Remember, it was illegal to print anything other than through an approved publishing house of the stationer's guild. How can you spread revolutionary thought if every word you publish must be printed by the most conservative of your enemies?

Get the point?

Nevertheless, both the United States And France adopted pretty much the same copyright laws after their revolutions. So publishing did not become revolutionary, as it had been in the days of the Gutenberg press.

Too bad...

The new Copyrights had the same term of years as the old, though more rights went from the publishers to the authors, at least in theory, though you can easily see from virtually any contract in publishing more than a few years ago. The Copyrights belonged to the publishers. Once signed, an author had to also sign an agreement that destroyed their rights to competitive publication.

Free competition? Hardly!

The next time competition would rear it's ugly misshapen head got settled by more copyright, exactly 200 years after the enactment of the first copyright, in 1909.

Interesting that none of the political and military revolutions of the first two centuries of copyright changed copyright at all. But the technological revolution of the new printing presses did!

From 1709 to 1909 nothing really changed in copyright, publishers still held all the cards, and authors were basically dealing with huge publishing monopolies, literally going hat in hand from one to another, collecting rejection letter after rejection letter, with not much alternative for any other manner of publication.

But the new steam and electric printing presses changed all that for one, they meant publishing houses could now spring up anywhere, not just in the most preferential mill towns, where all the water power had been "captured" or "harnessed" hundreds of years before.

Power shifts, after all... that is what we are talking about.

Well, actually we're talking about stopping power shifts.

The Olde Boye networks that had colonized the power supplies for the publishing industry during the past 200 years were threatened by the arrival of the new steam and electric printing presses.

Because these new presses were small, inexpensive, could go anywhere (hmm, sounds a little like the Computer Revolution of today... eh?), and they could turn out boxcarloads of books overnight, and there was a transcontinental train service ready to whisk them away...

Now, what do Ye Olde Boyes do when their networkes are threatened?

Instead of competing with the new boys and girls of the future, thus validating their new position, they retreat and retrench even further into reactionary conservatism.

The U.S. publishing industry lobbied the 1909 Copyright Act into law, doubling copyright terms without allowing the existing copyrights to expire as scheduled, thus bankrupting the new reprint houses, who soon had to wait 28 years for any copyrights to expire, and 56 years for a
best seller to expire, even though the authors had only been paid flat fees for copyrights that were supposed to expire in no more than 28!

If you can't beat them... don't join them... make their work illegal!

Once again a great industrial leap is dragged down by a ball and chain!

Why should Ye Olde Boyes do anything new when the same olde tactic from the Elizabethan age can be used again?

Once again copyright is used to destroy an information age.

In case you don't think there was an information age around 1900, just go to some used bookstores and ask about the various "Home Libraries" printed then. There were hundreds, and they were incredibly inexpensive, the "Harvard Classics" were just one example. Each one a set of books that would have cost hundreds of dollars previously. The same kind of paradigm shift you saw with the advent of the gutenberg press. With the same response!

Keep the power out of the hands of the masses!

You never know what they will do if they get educated!

It was illegal to teach blacks to read for the same reason. The rich have decided to make the common man into the nigger of the third millenium. Just read further to see how.

We have already seen two occasions when the masses were informed, each one leading to revolutionary upheavals, but I don't expect you to just believe me when I tell you just how revolutionary these were, so...

Here is one example from each of the first two informations ages:

1. Martin Luther
2. The Sears Catalog

Martin Luther is most famous for writing his "95 Theses". These revolutionized the entire western religious structure. He was protesting against certain entrenched powers of the Catholic Church, one of the most entrenched powers of the world.

He only sent these 95 ideas to a few friends with no idea of changing the world at large. It was his friends who took these to the local Kinko's De Jour.

Without the "revolutionary" Gutenberg Press, this "revolutionary" event could never have taken place. And that scares the "powers that be". Luther's protest was so successful that millions of people today are "Protestants".

Believe it or not, the Sears Catalog was just as "revolutionary", and it depended on technologies that were, for their time almost as "revolutionary" as the Gutenberg press.

More "believe it or not": the Sears Catalogue was the first book owned by millions of americans, and due to the advances in publishing and transportation mentioned above, as well as rural free delivery by the U.S. Postal Service, this "book" was delivered absolutely free to most united states mailboxes.

768 pages, lavishly illustrated, delivered free of charge, right to your door. Yes, it was "revolutionary"! And it scared the hell out of the "Powers That Be"! And you have seen just how (un)responsive they can be.

It all happened for the third time with the Xerox machine.

Another revolutionary invention, another increase in "publishing for the masses"... And the major increase in "publishing by the masses"!

Since this is so recent, I can hopefully presume you have actually seen the Xerox machine's effects directly, and that you only need to hear one thing more about it: the response by the Olde Boyes publishing network?

Yep! You guessed it! Yet another copyright extension!

Why change a good thing? It stifled the Gutenberg press, it stifled both the steam and electric presses... Let's just use it again to stifle the Xerox machine.

Copyrights were extended from 28 years with a possible 28 year extension (which hardly anyone ever extended, by the freakin' way) were now extended to 75 years, and (a drumroll please) no renewals were required!

Now even items that went out of print immediately would receive 75 years of copyright monopoly, another one of those hidden censorship controls. "Thought Police".

Today we are living in the middle of the Computer Revolution.

The average new computer is coming down towards $500, and it comes with enough gigabytes that you could put 10,000 of the 20,000 free ebooks on the internet in it and only take about
half the space, and that's not even with .zip files that would take up only about 1/4 of the space.

The average new computer is coming down towards $500, and it comes with enough gigabytes to hold all 20,000 ebooks in the Internet Public Library.

Can you imagine being able to own 20,000 computerized eBooks?

At a price that is literally about a penny each!

This is at least as scary to the "Stationers' Guilds" as were Gutenberg presses, the steam and electric presses and Xeroxes. And the response has been the same, only this time there has
been more publicity.

You probably didn't hear much about the 1976 Copyright changes. And there was even less mention of copyright around 1900. But today WIPO is accusing everyone of piracy, when they are the ones who stole your right to eBooks.

eBooks are the most accessible repository of the public domain.

When you steal something worth a quadrillion dollars, you need the biggest possible coverup.

This is another example of the "BIG LIE"!

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