Wired Shut, Copyright and the Shape of Digital Culture

Citation

Gillespie, T. (2009), "Wired Shut, Copyright and the Shape of Digital Culture", Journal of Information, Communication and Ethics in Society, Vol. 7 No. 2/3, pp. 213-218. https://doi.org/10.1108/14779960910955927

Copyright is essentially a simple concept, and yet people's reactions to it are complex. Everyone seems to have a different take on it. At one extreme, we have the maximalist, who wants to give the rights holder absolute control of a book, song or other protected work in every possible way with no exceptions at all. At the other is the minimalist, who believes information wants to be free and considers any restraints on the use of every product of the human mind to be contrary to basic notions of human freedom.

Before he became an evangelist of free information, John Perry Barlow wrote lyrics for many of the Grateful Dead's most famous songs. The Grateful Dead made an excellent living from record sales and royalties throughout the 1970s and 1980s, before beginning a never‐ending tour. As a band, they favoured endless jams, playing a minute of a familiar intro, noodling away for half an hour and concluding with another tight minute of recorded precision. Members of the audience recorded each of these unique performance and bootlegs proliferated. Rather than restrain this, the Grateful Dead encouraged it. Their income from their earlier recorded music continued, and they were being paid well for performances. With this background it is not surprising that John Perry Barlow hit on the idea that performance ought to be the source of income for all copyright works. Someone writing a scientific paper would earn from its performance in a symposium or other meeting. Whether this is viable or not for all scientific papers has to be questioned.

Richard Stallman is an innovator of genius in the world of free software, and the originator of the GNU software license, which is a copyright license covering the release of newly written software into the public domain on the proviso that anyone using the code to develop other software would have to release their software under the same license. This recursive approach is designed to enrich the world with free software – in the sense of the software being free to modify and adapt without restriction, not in the sense of being cost‐free. Having achieved this simple, elegant and powerful solution to software copyrights, Stallman looked around the copyright world and decided that other domains could be governed by the same rules. The Open Content license is an example of this – texts that are published under this license can be freely modified and adapted on the condition that they too must be republished under an Open Content license. Who wants to do this and why they would want to is an open question.

On the other side of the divide, Jack Valenti, director of the Motion Picture Association of America, offered up a narrative that went something like this:

Movie production is an economic boon to the nation; Internet file‐trading is a financial danger to that business; content producers, faced with this threat, will withhold valuable content and the medium in question will suffer; however, with stronger copyright protection and technical measures of self‐enforcement, the culture industry will provide a rich consumer experience. The entire chain of assertions was wrapped in a narrative of good beset by evil coated with dramatic metaphors and salacious scares, and contrasted against a rosy alternative only possible if copyright laws were strengthened [1].

I suspect most people lie somewhere in between. In my case, I have worked in developing countries most of my life and consider unrestricted access to knowledge essential to human development absolutely crucial. At the same time, I spent three years running the UK authors' copyright society (the Authors Licensing and Collecting Society or ALCS), which convinced me that authors, or more broadly creators, should have the same rights to earn from their efforts as plumbers or bridge builders – and have the same rights to pass along the rewards of their lifelong labours (along with their debts) to their families and descendants when they die.

Basically everyone has a different take on copyright – scriptwriters, poets, academic writers, song writers, painters, publishers, performers – and of course the rest of the world, the consumers, upon whom the whole economic edifice of creative reward is based.

Despite the evidence of my earlier quote from his introduction, Tarleton Gillespie is a subtle logician, an Assistant Professor of Communication at Cornell University and Fellow with the Centre for Internet and Society at Stanford Law School. At the heart of his argument in this book is a reflection on the way the law is being modified by technology. Not just how the law is being modified to include technological developments, but rather how technology is increasingly being tailored to implement laws or legal interpretations. At the broadest level, Gillespie questions “putting faith in a technical solution to a social problem”.

Specifically, the technological fix known as DRM (Digital Rights Management or – Stallman's suggestion – Digital Restrictions Malware), prevents access to content unless you have a password or key of some kind. The effect is to deny users the exceptions allowed under the Berne and other Copyright conventions. If you cannot even look at a text, how can you cite a small passage, use it for academic study, and so on – activities all permitted under the law?

The old debate about technological determinism is not addressed directly in this book, the question to what extent is technology to blame for ethical and moral ills? Do guns kill people or do people kill people? Are the technological attacks on copyright, and the proposed fixes, a new legal or ethical problem or just a modification to an existing problem that has been introduced by new technology?

In my view, the answer is based on the amplification of possibilities offered by technology. It is a question of scale. Just as a machine gun lets the murderer rack up statistics to make a mere strangler wring his hands, so the electronic ability to copy, cut and paste makes the old Gutenberg pirate look plain foolish.

Conversely, DRM systems can simply convert copyright law into a contractual discussion. No exceptions need to be allowed except those sanctioned by a contract between the owner of the content and the user wishing to access it. DRM:

[…] not only treats all users as would‐be criminals, it makes the imposition of copyright less open to exceptions like fair use, renders unavailable the ability to challenge a law through civil disobedience, and undercuts the individual's sense of moral urgency in a way that can undermine the legitimacy or the rule itself.

This is the minimalist/maximalist argument again. But, threading their way between these two extremes, are such considerations as human rights (notably Article 19 of the Universal Declaration of Human Rights, which claims for humanity the right “to seek, receive and impart information and ideas through any media and regardless of frontiers”), the desire for creators to have their creations seen, heard, read irrespective of market considerations, the desire of creators, etc. to feed and clothe their families, and the needs of humanity for the products of intellectual effort, both for entertainment and survival.

How does this play out in Wired Shut? Here are a few details. According to Gillespie, seeking to distinguish copyright abuses in the digital world from its analogue counterparts, “There cannot be piracy of sneakers, since a pirate produced incurs the same costs of making each shoe as the original manufacturer, making it much more difficult to undercut their prices and lure away customers. There are no sneaker pirates, only competitors and knock‐offs.” This is obviously wrong, as anyone in Nike or Adidas will tell you. A “knock‐off” is of course a pirated sneaker. What Adidas and Nike spend on marketing their brands is precisely what is being stolen by a pirated sneaker with a fake brand name attached. This is not copyright theft, but it will be an attack on the brand name (trademark) and in some cases patent (e.g. fake “Air Shoes”), so it does infringe the brand owners' intellectual property.

“When you finished your copy of this book for the first time, it will in no way be diminished for a second reading.” The imputation is that “a second reading” is in some way restricted by copyright law. However, the doctrine of first sale means that you or anybody else can read your copy of the book for a second, third or hundredth time without infringing copyright. You can even sell your copy of the book without infringement.

The question of “creative writing” is often misrepresented in copyright discussions, and it is in this book as well. Under copyright law, “creative” means “written with a new choice of words”. The idea does not need to be original – you can secure copyright in writing about other people's ideas, as long as you do not use their words – and you can quote them within citation limits. That's why letters, e‐mails, poetry, text books, business writings, academic papers, scripts, journalism are all candidates for copyright. Opponents of copyright tend to paint the picture of creative writers not needing a legal stimulus to write, offering up the conventional romantic picture of the poet bursting with the need to express himself.

Consider for a moment what writers are actually doing and earning. ALCS has over 100,000 British writers on its books. Their average income from writing is about £4,000 a year. ALCS distributes around £10 m to them each year for copyright uses of their works (photocopying, etc.). That's an average of about £150 apiece. Of course some earn up to £30,000 from this source, while most earn nothing.

A fiction writer earns money from royalties on sales of books, that is all. True if the book is sold to a film company, or put on a CD, there will be other income. The vast majority of fiction writers earn less than £10,000 a year from their writings. Thus, copyright for them merely means what it says – the right to copy. Nobody else is allowed to copy and sell their work. It is a negative right. They earn nothing from copyright; it is supposed to stop them from losing money, that is all.

So this image of the writer creating out of passion and the unstoppable need to express himself is irrelevant. That is not the main kind of writer who earns from copyright. The main kind of writer is typically an academic or journeyman writer. Someone who writes “How to Speak French”, “The Guide to Caerphilly”, “The Trees of Britain”, “Economics for the Layman”, etc. With few exceptions, these people would not put pen to paper without an economic incentive. This is the kind of writer who needs copyright protection. Their books might take years to research and write, and earn them a small but steady income, provided they are not ripped off. The books will be photocopied, and some of that copying will be captured under photocopying licenses, leading to a small supplementary income forwarded by collecting societies in most countries of the world. So when someone writing about copyright calls up the image of a typical writer, you should not think of Jeffrey Archer or Danielle Steele, you should think of the woman who toiled in a provincial library for a year to write “The Guide to Caerphilly”. There are not more than 1,000 best‐selling authors in the world, but millions of writers earning small amounts thanks to copyright.

Of course, publishers are involved as well. Authors are generally made to sign over their rights as a part of the contract. Many people do not realize that the most profitable publishers are not those who publish fiction, but those who publish academic journals. The largest of these is Reed Elsevier, which regularly steams along at a net profit margin over 30 per cent, and it does so without paying authors anything at all. For Elsevier, copyright works only to keep people from copying their works. Since the arrival of Open Access, however, journal articles are increasingly being placed on the Internet for free use and to promote the spread of knowledge.

So we are left to ask where copyright goes wrong for the writer? It permits the average writer a modest income and protects the publisher from knock‐offs. It does not stop anyone “standing on the shoulders of giants”, since citation and paraphrase are permitted, and ideas cannot be copyright. There are a few derivative works, where direct borrowing is the norm, which cause confusion – for example the use of samples in hip hop, or of photos as the basis for paintings – but these are exceptions rather than the rule. In most cases a contractual agreement between the parties would solve the problem, and the courts are there to ensure that the permissions are not prohibitively priced.

The educational use of materials (film clips or music in documentary films, journal articles or book chapters in course packs, etc.) is a problem for which the collecting societies offer solutions. Again, it is imperative that the courts legislate in favour of the user to allow liberal (and cheap) access to such materials. This is certainly not the case at present, and in my view this is where we should put out efforts. This is especially true with access information that is essential for human development, which should be completely unrestricted.

The fact is that copyright treats every creation as identical. It protects episodes of Baywatch with the same rigor as it applies to documentaries teaching people how to plant crops. MAD Magazine is afforded the same barriers to copying as an instruction manual on combating malaria. And the protection is not equal – the words and music of “Happy Birthday” continue to earn the Turner Corporation millions of dollars a year, while there are over 2,000 unpaid‐for postings of Do Not Go Gentle into that Good Night on the web, earning Dylan Thomas's family nothing despite a life of suffering with their absentee, impecunious drunk of a poet.

As Gillespie says, “these questions are at once legal and philosophical, social and cultural, political and economic”. Accordingly he moves on a number of fronts at once. From a consideration of the political pressures being brought to bear on the legal and technological systems influencing copyright law and its applications, he gives a rich and contemporary description of copyright law (which remains accessible for the non‐specialist reader). He uses the controversies surrounding the Napster peer‐to‐peer file sharing software as an illustration of the issues, and draws a key observation from the conclusions of the Napster legal decision:

They called for a technological fix, one designed to change Napster so it would systematically discern and filter out the unauthorized music the Recording Industry Association (RIAA) had complained about […] This effort to deploy a technological artefact as a legal intervention represents a larger strategy that, even in the short time since the Napster decision, has become a full‐fledged project on behalf of the major culture industries.

Gillespie does not dwell on the instrumentalist argument – to what extent should someone creating a technology or product be held responsible for the use to which other people put it – but instead explores the ongoing efforts to use the technology to wire shut gaps in the laws and more broadly to address perceived social ills.

He reviews recent thinking on the new technologies and the political and social consequences of their introduction into the real world, often with consequences unforeseen by their creators. In his view, “in every instance designing and implementing a technology is an attempt to intervene in social practice”, a conclusion which is more sweeping than the evidence justifies. In fact, technologies always seem to be blundering into social structures almost unconsciously. Shawn Fanning was trying to create a program to classify his own MP3 music files when he produced Napster. Even quite late in the development process, he thought he was helping his friends sort out their music collections rather than revolutionizing the entire music industry, and indeed the entire copyright‐based world. Thus, the suggestion that technological developments are always targeted at specific social consequences seems wrong.

“Trusted systems” such as DRM only work with enough of a buy‐in from industry and political lobbies. Gillespie traces this political consensus‐building among the music and motion picture industries. At each step of the argument, he cites the “complex arrangement of content, machines, licenses and industry partners that together work to contain the activities of users.”

Gillespie is of course clearly on the side of the users. Nevertheless, his book is sold as a traditional hardback, earning him royalties on sales as well as copy right income, and is not available in any open access format on the Internet. This is one of the paradoxes that liberal writers on copyright face when they yield their books up to formal publishers operating within copyright law to publish for profit. They become an easy target for snide reviewers.

Overall the book is a dense read, largely owing to the volume of material Gillespie marshals. He gives lucid explanations of all concepts, occasionally marred by professorial vocabulary (all forms of “to reify” should have been axed). Overall, the effort is rewarding.

Ultimately the conclusion is downbeat “[…] copyright has rarely had to consider the way the commercial practices of the owners themselves can have the kind of anti‐democratic implications copyright was designed to avoid.” He notes that communication has always been “a recursive and productive process”. Building such practices into the technology itself interrupts the cycle of feedback. This tour of contemporary digital culture ends with the spectre of its truncation at the hands of the copyright industries, wired shut to all but the obedient, paying customer.

However, the book was published in 2007, and some of the dire predictions regarding the encryption of all content now appear excessive. The content industries are experimenting more freely with lock‐free site licenses (for example it was announced last month that the Isle of Man was going to offer a cheap license costing a few pounds a month to all its citizens to allow them to download any music they wanted. As a control technique, encryption always has the drawback that once the content is decrypted (either by a hack or by paying for the privilege), it is back to square one in terms of protection. Encryption and DRM are not the way forward, whichever side of the copyright fence you sit.

Chris Zielinski

Vice Chair, IFIP Working Group 9.2, (Computer and Social Accountability)