In 1971, political activist Abbie Hoffman published a counter-culture rail against government and business. It’s title: Steal This Book. Rejected by thirty publishers, Steal This Book sold more than a quarter of a million copies in its first year alone. “It’s embarrassing you try to overthrow the government and you wind up on the Best Seller’s List” said the author. Hoffman died in 1989. Seven years later, his heirs put the book up on line, what one of them called “its logical home,” free for the downloading.
Much of this week’s reading puts me in mind of this story. Hoffman made money selling a book he encouraged people to steal. Microsoft’s Bill Gates is making money re-purposing photos that are squarely in the public domain. Irony abounds. For Gates to develop an online digital image repository, Corbis, with copyright claims on thousands of public domain images, seems the height of arrogance. That the Atlantic Monthly website once copyrighted a copy of Lincoln’s Gettysburg Address seems comical. Is any document in U.S. history more a part of the public’s domain than the Gettysburg Address, earned with the sweat, blood and tears that flowed during the Civil War, codified by the political struggles over the Emancipation Proclamation and Thirteenth Amendment that followed?
Given the history of U.S. copyright, this confusion about what is public and what is protected, what is free and what comes with a price tag, may be inevitable. In “Owning the Past,” Daniel Cohen and Roy Rosenzweig suggest that “there is no fixed body of rules but a shifting terrain of interpretations.” Especially in cyberspace, where digital media are so easily manipulated and accessible, the very idea of preserving exclusive rights in what they call the “creative commons” seems elusive.
Cohen and Rosenzweig make no secret of their perspective. Advocating “copyright radicalism,” they argue for a balance between intellectual property rights and free access online, “as long as it favors enlargement of the public domain.” This strikes me as elliptical – as if they were saying, “We support balance as long as the seesaw tilts in our direction.”
Coming to the rescue, according to Patricia Aufderheide and Peter Jaszi, is a doctrine called fair use. In Reclaiming Fair Us: How to Put Balance Back in Copyright, they argue that the fair use doctrine offers “an escape hatch,” from the copyright net tightened in the courts by businesses eager to protect their products. In 2007 the Organization for Transformative Works was founded to promulgate and promote “best standards,” a code of fair use that would allow non-commercial creators – from documentary filmmakers to high school teachers – to remix, reuse and otherwise re-imagine copyrighted material.
The idea of a best practices code quickly gained momentum. Lawrence Lessig founded the Creative Commons Project, an online legal system that “develops, supports, and stewards legal and technical infrastructure that maximizes digital creativity, sharing, and innovation.” Google, which owns YouTube, funded a film, Remix Culture: Fair Use is Your Friend, to encourage the trend. By 2010, OpenCourseWare designers were persuading university lawyers to “give fair use a chance.”
I’m betting Abbie Hoffman would like the sound of that.What do you think?