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Stopping The Privatization Of Public Knowledge 
The Endangered Public Domain

David Bollier is the director of the Information Commons Project at the New America Foundation and a senior fellow at the Normal Lear Center at the USC Annenberg School for Communications.

This is the second in a series of three articles by David Bollier for, adapted from his recent book Silent Theft: The Private Plunder of Our Common Wealth (Routledge).

Does silence belong to all of us -- or can someone own it and charge money for it? In yet another sign that our market-crazed culture is spiraling into absurdity, a British licensing agency that collects royalties for musicians recently dunned avant-garde composer Mike Batt for his piece, "A One Minute Silence," which was exactly that. In the program notes, Batts paid tribute to experimentalist composer John Cage, who in 1952 pioneered a similar silent piece, 4'33", by listing the composers as "Batt/Cage."

This provoked a British copyright licensing body to demand a royalty payment for Cage's estate. An astonished Batt retorted, "My silence is original silence, not a quotation from his silence."

Welcome to another day in the life of copyright enforcement, where "content aggregators" -- film studios, publishers, record labels --brazenly cast a broad net of claimed ownership rights in the intangibles of our culture. Whether it is an image, a sound riff, a screen persona or an acronym, chances are that some white-shoe attorney in Los Angeles or New York will send a "nasty-gram" letter claiming that our shared culture -- even silence -- belongs to some mega-corporation.

What was once a limited legal practice has exploded in recent years into a full-fledged cultural pathology. "One member of a self-appointed committee of copyright lawyers has boasted that they have developed restrictions on every means of transmission of thought except smell, taste and extrasensory perception," observed one critic. It's part of the new market fundamentalism. Americans are so habituated to thinking about property as tangible things owned by individuals -- this is mine! -- that we have trouble understanding that some of the most valuable wealth we own is collective and social in character.

These forgotten assets and social resources could be called the American commons: our public lands and open spaces, the public airwaves and the Internet, the basic drug research and government information resources that our tax dollars buy, the creative works and images that belong to the public domain. These forms of common wealth are indispensable to our daily lives and essential to the proper functioning of education and science, our economy and culture. Yet, as a people of the market, we are largely blind to their real value.

The Endangered Public Domain

One of the most endangered and least recognized commons is the public domain of creative works and information. The public domain has always been thought of as a peculiar cultural junkyard on the outskirts of reputable society. According to conventional thinking, it is the place where the antiquarian explorer can find Treasure Island and Scott Joplin piano rags languishing alongside deservedly forgotten books, illustrations and music.

The public domain is seen as a fairly static collection of works on which copyrights and patents have expired, and works that were not copyrightable in the first place, such as government documents and scientific theories. In the law, the public domain also consists of things that cannot be legally protected, such as plotlines, titles, themes and facts. The public domain, according to conventional thinking, is not really a resource of much economic or creative value.

It is becoming increasingly clear, however, that the public domain is neither static, marginal nor trivial. Millions of people now have their own Web sites, use open source software, interact through online games and collaborative Web sites and freely share data files. Now that the Internet has empowered everyone to become a creator and to readily share information with others, the public domain has only grown in importance. That is why a number of commentators now speak of "the information commons." They want to stress that public communications in the digital age has radically new dynamics, making it even more difficult -- but important -- to preserve open access and sharing of information.

"Previous generations took for granted that our shared culture -- the public domain -- was infinite and self-replenishing," said Gigi Sohn, President of Public Knowledge, a new public-interest advocacy organization dealing with copyright in the digital age. "Now it's becoming increasingly clear that this just isn't so."

The public domain cannot last very long if McDonald's threatens food businesses that use "Mc" in their names and Mattel threatens legal action against art photographers who use images of Barbie dolls to comment on American beauty ideals. Our shared culture of literacy and democratic dialogue will not last long if publishers successfully tar public libraries as "pirates" for sharing (gasp!) digital works.

Thirty years ago, copyright law and technology were obscure matters for industry technicians and lawyers. That has changed dramatically as more of our economy, politics and culture have "gone digital," migrating from print media to the Internet and new delivery technologies. Not only has this shift radically changed the "hydraulics" of information flows in our society, it has triggered a frenetic race among technology and content industries to lock up creative works and information that were previously shared and accessible to all. The result may soon be a closed society in which "we will have to ask to use; ask to criticize; ask to do all those things that in a free society one takes for granted," warns Stanford law professor Lawrence Lessig.

Who Shall Control Information?

A basic issue of our political economy is becoming, Who shall control information? Who shall have access? Under what terms -- free or purchased, for indefinite use or on a per-use basis? Shall all digital information be presumptively considered property, to be locked up and tightly controlled so that any unauthorized uses are considered "piracy"? Or will creative works and information generally be allowed to flow freely, as befits a free and open society?
Americans have trouble understanding that some of the most valuable wealth we own is collective and social in character.

The expanding scope of copyright law and technology controls is affecting dozens of everyday uses of information: whether citizens will be able to share excerpted newspaper articles online or make Web links to them; whether music lovers will be able to play a purchased CD on their computers; whether fans of Star Trek will be able to make Web sites about their favorite characters and shows; and whether the free exchange of research among scientists and academics will be stifled by copyright and encryption controls.

As Lessig explains in his book, The Future of Ideas, the vitality of the information commons will profoundly affect people's ability to create new works. If authors and artists are prohibited from drawing upon previous works, a gridlock of overly broad copyright protection and tech controls will shut down experimentation and innovation. If citizens are prevented from publicly talking about trademarked products or linking to copyrighted news articles -- issues that are now being litigated -- serious damage is done to our open, democratic culture.

These are not far-fetched cases. Just last year the grandchildren of Margaret Mitchell, owners of the copyright to Gone With the Wind, prevented novelist Alice Randall from publishing her novel, The Wind Done Gone. The story, which comments on Southern myths about race, openly uses some of Mitchell's characters and plot scenarios. The courts eventually allowed Randall's novel to be published, but litigation for damages continues.

The privatization of public knowledge is proceeding on a number of fronts. Here are some of the more alarming ones:

Copyright term extension: copyright was originally a 14-year monopoly right. Over the past 40 years, the term of protection has been extended 11 times, so that it is now a lifetime of plus 70 years for individuals. Congress in 1998 added another 20 years of protection, effectively depriving the American people from owning tens of thousands of works that were due to enter the public domain. These works, first copyrighted in the 1920s, include poems by Robert Frost, novels by Sherwood Anderson, and films and musicals such as The Jazz Singer and Show Boat. The constitutionality of the law will be decided sometime next year by the U.S. Supreme Court in the case of Eldred v. Ashcroft. Oral arguments are planned for November.

The Digital Millennium Copyright Act, or DMCA, is a sweeping 1998 law that has given copyright owners unprecedented control over how works may be accessed and used, even after their purchase. The law makes it illegal to circumvent a technological control such as encryption or digital watermarks, for example, and makes it illegal even to communicate that knowledge to others. As a result, copyright law is now being invoked with greater frequency to override free speech rights.

The most infamous case involved Professor Ed Felten, a Princeton professor who took up the recording industry's open challenge of trying to defeat its CD encryption system. When Felten tried to deliver a conference paper about his findings, the industry threatened legal action. The DMCA is troubling because it empowers copyright owners to use technology to suspend the public's fair use rights -- the ability to excerpt and use portions of works for personal, non-commercial purposes. Collisions between copyright law and the First Amendment are intensifying, and are likely to end up in the Supreme Court.

"Fair use, free expression, and legitimate science have all suffered collateral damage in Hollywood's war on piracy," said Fred von Lohmann, Senior Intellectual Property Attorney at the Electronic Frontier Foundation. "How many more scientists, hobbyists, and legitimate competitors have to be threatened or sued before we all admit that the DMCA is not working?"

Implicitly admitting that even the DMCA is not effective, Hollywood studios are now pushing legislation that would require virtually all electronic devices and computer systems to include government mandated copy-protection systems. This bill -- Senator Hollings' Consumer Broadband and Digital Television Promotion Act -- seeks to achieve "perfect control" of all digitized content by disabling the very openness and flexibility that have made consumer electronics so useful. Denounced by Silicon Valley and public-interest advocates, championed by Hollywood and record labels, the legislation opens up a new debate over the fate of our open, democratic culture in the digital era.

There are other assaults on the public domain brewing: Legislation that would allow information vendors to "own" public facts used in databases. Trademark law that allows the owners of brand-name products to go after uses that might "blur" or "dilute" the name. And technology itself -- in the form of digital watermarks, digital rights management systems, and e-books using restricted content -- that threatens to dramatically shrink the information commons.

Preserving the information commons may not be a topic of kitchen-table conversation just yet. But it is fast becoming a hot issue. With a few more turns of the screw by the content autocrats -- snooping on people's computers, lawsuits against individual file-sharers, intrusive new attempts to control personal behavior -- the fledgling movement to reclaim popular control of the information commons may explode into a mainstream juggernaut. None too soon.

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Published: Aug 01 2002

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