Saturday, February 19, 2005

Freedom of Expression: Introduction

In 2003 Fox News sued Al Franken and his publisher, Penguin, for
naming his book Lies and the Lying Liars Who Tell Them: A Fair
and Balanced Look at the Right. The veteran satirist, who had publicly
quarreled with Fox News host Bill O’Reilly in the months leading
up to the book’s release, used the news channel’s slogan “Fair
and Balanced” in the title. The company claimed this use trespassed
on its intellectual property. By associating Al Franken’s name with
Fair and Balanced®, the Fox lawyers argued, it would “blur and tarnish”
the good reputation of the trademark. The suit went on to
state that Franken “appears to be shrill and unstable.” He was also
described in the lawsuit as “increasingly unfunny,” a charge Franken
responded to by saying that he had trademarked “funny” and was
considering a countersuit.

Later that week on his daily radio talk show,O’Reilly grew testier,
lashing out at Franken and his alleged theft. Despite O’Reilly’s bluster
and the earnest legal arguments of Fox’s lawyers—who drew
laughter from the courtroom when they advocated their indefensible position—U.S. District Judge Denny Chin dismissed the injunction
against the book. “There are hard cases and there are easy
cases,” Chin stated. “This is an easy case in my view and wholly
without merit, both factually and legally.” The O’Reilly-Franken
dustup was the prelude to an increasingly aggressive trademark
rampage. That year, the news channel threatened to sue a Web-site
outfit that was selling a satirical T-shirt that mimicked its logo with
the words “Faux News” and tweaked its motto: “We distort, you
comply.” It also targeted The Simpsons (which airs on its sister network)
for parodying the news channel’s right-wing slant. During
one episode, the cartoon imitated the Fox News ticker, running
crawling headlines such as “Oil slicks found to keep seals young,
supple” and “Study: 92 percent of Democrats are gay.”
Fox News eventually backed down, opting not to file a lawsuit
against the show. “We called their bluff,” said Matt Groening, The
Simpsons’ creator, “because we didn’t think Rupert Murdoch would
pay for Fox to sue itself. So we got away with it.” It’s probably the
first time that media consolidation has actually enabled freedom of
expression®. Still, The Simpsons writers got a slap on the wrist by
the parent company when it imposed a rule that the cartoon could
no longer imitate news crawls. “It might confuse the viewers into
thinking it’s real news,” Groening drily noted. As for the Web site
that sold the “Faux News” T-shirt, Fox News dropped its threat after
the American Civil Liberties Union intervened on its behalf. The
ACLU sent Fox a “ ‘get stuffed’ letter,” as the site’s operator Richard
Luckett put it.1

“Blur and tarnish,” the choice of words used by Fox’s lawyers in
the Franken case, might sound absurd to the average person, but it’s
the language of trademark law. Unlike copyright law, which protects
creative works such as books and movies, and patent law,
which covers inventions and the like, trademark law is designed to prevent consumer confusion and unfair competition. In other words,
you can’t place the Coca-Cola logo on your own newly minted soft
drink or use the company’s trademarked advertising slogans to
trick people into buying your product. It also protects companies
from having their trademarks associated with something unsavory,
which is where the blurring and tarnishing comes in. The problem
—at least as far as freedom of expression® is concerned—is
when trademark holders go too far in trying to protect their property.
The Fox News v. Franken case is but one of many examples of
this kind of overkill.

By wielding intellectual-property laws like a weapon, overzealous
owners erode our freedoms in the following ways: (1) we, or
our employers, engage in self-censorship because we think we
might get sued, even if there’s no imminent threat; (2) we censor
ourselves after backing down from a lawsuit that is clearly frivolous;
(3) worst of all, our freedoms are curtailed because the law has expanded
to privatize an ever-growing number of things—from human
genes and business methods to scents and gestures. (Donald
Trump not only trademarked “You’re Fired,” but also his hand gesture
that accompanied the phrase on The Apprentice.)
In the first case, the makers of the anti–Fox News T-shirts didn’t
back down and instead brought in the ACLU, which forced Fox
News to call off its attack dogs. Victory for freedom of expression®.
In the second case, Penguin Books fought Fox’s lawsuit and easily
won because the law allows us to parody or criticize intellectual
properties. Franken’s publisher didn’t make him change the title or
cower from what was obviously a lawsuit that was “wholly without
merit.” Another victory for freedom of expression®. These two instances
remind us that we can fight back and win, especially because
many recent court decisions have upheld free-speech rights
in the age of intellectual property. The problem is that lots of individuals and companies either don’t know this or don’t want to take
a risk.

The third case is far more troubling, because in some important
respects the law does curtail our rights. The rise of the Internet has
served as a wonderfully effective boogeyman used by intellectualproperty
owners to legitimate the same one-dimensional arguments
they’ve been asserting for years. Those claims go something
like this: Anyone who does anything to any of their properties is a
“pirate” (such as VCR owners and music fans who made cassettetape
copies of works in the 1980s). Courts and Congress fortunately
rejected this line of reasoning twenty years ago, giving consumers
far more options—including the option not to be sued. However,
Internet-fueled fears have changed the legal and cultural landscape
in dramatic ways.

In 1998 Congress passed the Digital Millennium Copyright Act
(DMCA) in response to the megabyte-sized specter that haunted
American business interests. Although well-intentioned, the DMCA
is a terrible law. It was written to protect digital property by making
it illegal to bypass “digital locks” such as copy-protection technologies
on CDs or simple passwords on software. It’s a bad law because
it has failed to prevent unauthorized duplication of copyrighted
goods—surfed the Internet lately?—and has only succeeded in curtailing
freedoms, criminalizing legitimate research, and arresting
the development of worthwhile software. (Sometimes it has led to
the arrest of software developers themselves.)

One of the DMCA’s unintended consequences is that companies
have tried to use it to squash competition on things such as garagedoor
openers and aftermarket ink cartridges. A few years ago,
for instance, Lexmark placed in its printers an “authentication
regime”—a fancy way of referring to a kind of password that lets
the ink cartridge and the printer “talk.” Then it invoked the DMCA to eliminate competition from less-expensive aftermarket ink cartridges
that “hacked” the digital lock on Lexmark’s printer. It took
many months and many more thousands of dollars to convince
courts that these competing products weren’t illicit materials. Only
in America, you might think, but draconian DMCA-like laws are
spreading around the globe like digital wildfire. In 2004 thirtythree-
year-old Isamu Kaneko, an assistant professor at the University
of Tokyo, was arrested because he developed file-sharing
software similar to the popular KaZaA application. The same year,
the Italian parliament passed a law imposing jail time of up to three
years for anyone caught sharing copyrighted material via the Internet.
These sanctions are another unfortunate outcome in the drive
to privatize every imaginable thing in the world, including genetic
material. The peculiar case of John Moore couldn’t have happened
without the expansion of patent law in the past quarter century.
When Moore’s spleen was removed to treat a rare form of leukemia,
his University of California doctor patented a cell line taken from
his organ, without Moore’s knowledge or permission. The longterm
market value of the patent has been estimated at roughly
$3 billion, and Moore’s doctor received $3 million in stocks from
Genetics Institute, the firm that marketed and developed a drug
based on the patent.2

When Moore found out about these shenanigans, he sued—and
lost. The California Supreme Court claimed that giving Moore any
rights would lead to the commodification of the human body—
an argument that ruffled the feathers of Judge J. Broussard, who
dissented from the Moore v. Regents of the University of California
decision. “Far from elevating these biological materials above the
marketplace,” Broussard wrote, “the majority’s holding simply bars
plaintiff, the source of the cells, from obtaining the benefit of the cells’ value, but permits the defendants, who allegedly obtained the
cells from plaintiff by improper means, to retain and exploit the full
economic value of their ill-gotten gains.”

Patents not only allow companies to have a monopoly control
over human and plant genes, but also business methods, such as
Amazon’s “one-click” procedure. U.S. Patent No. 5,960,411 gives
Amazon the right to extract money from any business that wants to
let customers purchase items on the Internet with only one click of
the mouse. The online retailer exercises the monopoly right that
this patent gives it, bullying small and large companies into purchasing
a license for this “technology.” For instance, Amazon won a
court order that prevented from using this
feature for two holiday-shopping seasons before the two parties
reached a settlement. Today, every company from Apple’s iTunes to
the smallest of businesses that Amazon’s lawyers can shake down
are compelled to license the “one-click” feature. Otherwise, they’ll
be sued.

Clear Channel Communications, which controls more than one
hundred live venues and over thirteen hundred radio stations in the
United States, bought what is considered in the music industry to
be an important patent. It covers selling recordings of concerts immediately
after a performance, something that has recently become
popular with fans who want to take home live CDs. Other companies
had been providing this service, but Clear Channel intends
to enforce its patent to squeeze licensing fees from other small
businesses and bands and to eliminate competition in this area of
commerce. “It’s one more step toward massive control and consolidation
of Clear Channel’s corporate agenda,” says Mike Luba, the
manager of the jam band String Cheese Incident, which was prevented
by the corporate Goliath from using CD-burning equipment.
Pixies manager Ken Goes grumbled, “I’m not fond of doing
business with my arm twisted behind my back.”3

Another terrible law is the Sonny Bono Copyright Term Extension
Act of 1998, which extended the length of copyright protection
by twenty more years. To put this into perspective, nothing new will
enter the public domain until 2019—that is, until Congress likely
extends copyright protection again for its corporate campaign
donors. Previously, copyright law was written in such a way that,
between 1790 and 1978, the average work passed into the public
domain after thirty-two years. Stanford University law professor
Lawrence Lessig notes that this honored a constitutional mandate
that copyright protections should last for “limited times,” something
today’s Congress interprets quite liberally. U.S. copyright protection
now stretches ninety-five years for corporate authors, and
for individual authors it lasts their entire lifetime, plus an additional
seventy years.

Copyright protectionists argue that extending a work’s copyright
ensures that there will be an owner to take care of it. But the opposite
is often true. “Long copyright terms actually work to prevent
a lot of stuff from being preserved,” argues film archivist Rick
Prelinger. “There’s a lot of material that’s orphaned,” he tells me.
“It’s still under copyright, but the copyright holders are gone, or we
don’t know who they are. The copyright could be obscure.” Many
archives won’t preserve a film if they don’t know who the owner is,
which means there are thousands of films, records, and other fragile
works that aren’t being protected because nobody knows their status.
“The interesting thing about film, what’s actually scary about
film,” Prelinger tells me, “is that the term of copyright is now longer
than the average lifespan of film as a medium. So you’ve got this
film in a cage and you can’t get to it until the copyright expires, and
the cage melts down. But in the meantime the film may disintegrate.
That’s a real issue.”

John Sorensen, a high school friend and an independent documentary
producer who has worked for A&E and PBS, shares Prelinger’s concerns. “From the perspective of a historian,” he says,
“after spending a lot of time looking at film and photo collections
from the early part of the century, one realizes that the things that
still exist, the images that are chosen to be preserved, are those images
that are perceived by corporate or government bodies to have
potential value. So the visual record that is kept is totally subject to
the laws of the marketplace.” Of the works produced between 1923
and 1942—which were affected by the Bono Act—only 2 percent
have any commercial value. This means we are allowing much of
our cultural history to be locked up and decay only to benefit the
very few, which is why some have sarcastically referred to this law as
the Mickey Mouse Protection Act. If not for the Bono Act, Steamboat
Willie, the first appearance of the rodent, would be in the public


When companies try to use intellectual-property laws to censor
speech they don’t like, they are abusing the reason why these laws
exist in the first place. Copyright was designed to, as the U.S. Constitution
puts it, “promote the progress of science and useful arts,
by securing for limited times to authors and inventors the exclusive
right to their respective writings and discoveries.” Copyright exists
—and the U.S. Supreme Court has consistently repeated this—
as a means to promote the dissemination of creative expression, not
suppress it. The overzealous copyright bozos who try to use the law
as a censorious weapon mock the idea of democracy, and they step
on creativity. As culture increasingly becomes fenced off and privatized,
it becomes all the more important for us to be able to comment
on the images, ideas, and words that saturate us on a daily
basis—without worrying about an expensive, though meritless,lawsuit. The right to express one’s views is what makes these “copy
fights” first and foremost a free-speech issue. Unfortunately, many
intellectual-property owners and lawyers see copyright only as an
economic issue.

By using intellectual-property law as a thread that ties everything
together, I gather what may seem to be a wild array of subjects: hiphop
music and digital sampling; the patenting of seeds and human
genes; folk and blues music; education and book publishing; the
collage art of Rauschenberg and Warhol; filmmaking, electronic
voting, and the Internet. However, all of these topics are connected
to the larger trend of privatization—something that pits economic
values against the values of free speech, creativity, and shared resources.
The latter aren’t airy dreams. They’re the very reasons why
the framers of the Constitution established copyright and patent
law: so that society would benefit from a rich culture accessible
to all. Thomas Jefferson and the other Founding Fathers were
thoughtful, and got it right.

They articulated a theory of intellectual-property law that rewarded
authors and inventors for their creativity, but they did not
intend the law to be so rigid that it would give creators (and their
heirs) complete control over their work. In the influential 1984 Betamax
case that legalized the VCR, Supreme Court Justice John Paul
Stevens reminded us of copyright’s Constitutional mandate. He
made clear that the monopoly power of copyright was designed
first and foremost to benefit society by stimulating new creative
works. Copyright’s purpose, he argued in the majority opinion, is
not to provide a special private benefit to an individual or corporation.
“Rather, the limited grant is a means by which an important
public purpose may be achieved,” wrote Stevens. “It is intended to
motivate the creative activity of authors and inventors by the provision of a special reward, and to allow the public access to the products
of their genius after the limited period of exclusive control has
expired. The copyright law, like the patent statutes, makes reward to
the owner a secondary consideration.”5 Despite Hollywood’s fears,
it turned out that the VCR generated more money for movie studios.
Box-office revenues have continued to rise since the 1980s—
even in the age of digital downloading—and video rentals and sales
now generate twice as much money as box-office receipts.
Since this 1984 decision, the hypnotic drumming of privatization
has grown louder and more persuasive. Some pundits believe it
makes sense to place as many things as possible under the control
of property owners, because it would be best for business. This is a
false assumption, and it is filled with many dangerous trapdoors.
The risk we face today is that the free exchange of ideas could be
halted by recent trends in intellectual property—with dire consequences
for creativity and the human spirit. This book documents a
Lord of the Rings–size battle between a more than two-hundredyear-
old tradition that encourages openness and the total monopoly
control that many copyright protectionists advocate. It’s also a
story about how activists aren’t letting the erosion of our freedoms
happen without one smackdown of a fight. The situation isn’t
hopeless, though there are plenty of areas where the conflict is getting
worse for freedom of expression®.We still have a way to go.


To address an issue I’m sure will be raised: No, I wouldn’t mind
earning some extra income from this book’s sales, as I’ve accrued
massive student-loan debt over my decade of higher education.
However, I thoroughly approve if you copy this book for noncommercial
uses. The point of copyright law is to provide limited incentives to promote creativity and the spread of knowledge, not total
control in perpetuity. My copyright comrade at NYU, Siva Vaidhyanathan,
told me that some professors in India have photocopied
his book Copyrights and Copywrongs in its entirety. The cost of a
book is almost an entire month’s salary for some university workers
in that country, so Siva’s feathers aren’t ruffled over this kind of
“piracy”—though it makes him sad that in the era of globalization
such things as books aren’t affordable for certain people.

In this book, I don’t argue for the abolition of intellectualproperty
laws. Nor do I believe that those who think their intellectual
property is worth protecting are automatically “overzealous
copyright bozos.” But I do contend that we need to roll back the recent
restrictions that have been imposed on us in the digital age.
Today, copyright and trademark owners repeatedly invoke the Internet
as something that will surely devastate them. Jack Valenti, the
recently retired Motion Picture Association of America (MPAA)
CEO, has claimed that Hollywood would be brought to its knees by
the digital anarchy perpetrated by “twelve-year-olds.” Valenti has
argued, “If the value of what [movie studios] labored over and
brought forth to entertain the American public cannot be protected
by copyright, then the victim is going to be the American public.”
He went on to assert that if people were able to freely copy and
watch movies whenever they wanted, this would lead to a “lessened
supply of high quality, expensive high budget material where its investment
recoupment is now in serious doubt.”6

VALENTI SAID THIS over twenty years ago, and he was talking about
the VCR.


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