The Challenges of Creating Law for A Spectrum: Copyright and Open Source

Article I, Section 8, Clause 8 of the United State Constitution gives the Congress the power, “To 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.”

Lawrence Lessig states in his book “Free Content”  this clause of the Constitution involves a balance between preserving enough intellectual property rights to give   inventors enough incentive to devote time and resources to work on new inventions with the interest of the public to have a free flow of ideas that can build on each other to make a better society.  After talking about corporate interest have made copyright law lean heavily towards the personal property end of this spectrum Lessig gives his own solutions.  He favors going away from the all rights reserved copyright or no rights reserved model.  Lessig explains how Creative Commons  is used to refine Copyright law so creators still retain some rights of their choosing.    This allows other people to share, use, and remix the original content with attribution as the only requirement in most cases.

While I agree with Lessig’s solution that there should be more choice for authors in how they want to Copyright their material I do believe he is biased against publishers and big business.  For example he gives the example of drug companies not reducing the cost of life saving AIDS drugs for customers in Africa who cannot afford them otherwise.  Lessig says they do this because they want to protect their profits and don’t want to get called before congress and asked why do the same drugs cost less in Africa then the USA. (Lessig 257-265).  The only solution he provides is to let African countries buy the drugs at a cheaper price, which goes against the patent model used in the United States now.  He does not mention having the government subsidize poor African countries or poor people in the US to help them buy the drugs at the market price.  Again, I think Lessig’s overall point is still the best to have different Copyright rules for different situations but I think it is disingenuous to not point out solutions of groups that he may disagree with.

I also think Creative Commons is a great step forward but it is not perfect.  If Creative Commons as a non profit develop “Some Rights Reserved” Copyright then what stops another company from developing their own criteria?  Even if they are working under the same standards there may be confusion from readers because there are so many different symbols that each come from different organizations.  This may relate to the chaos that ensued after Andrew Jackson broke up the 2nd Bank of the United States (BUS).  Instead of having one consistent currency the end of the 2nd BUS spurred states and private companies to issue their own currency.  This created a lack of confidence in what currency was real and what was counterfeit (See A Nation of Counterfeiters: Capitalists, Con Men, and the Making of the United States by Stephen Mihm).   The government also archives of all the copyrights that authors register with them.  This is a valuable source for historical research.  It something is copyrighted with Creative Commons this does not occur.

The main point of Peter Suber’s “Open Access: The Book” is that academics really have no motivation to restrict their work by putting a price on it.  For over 350 years they have been receiving university salaries get benefits when their work is distributed and cited by others.  However, this has been overtaken by publisher’s motivation for profit, which makes them create paywalls for access to scholarly journals.  It is important to realize that even Suber admits that this relates to only scholarly work and is probably the minority of the total amount of creative culture being produced.  Musicians and artists depend more on copyright because they make their living off of the royalties of their work.  I would just ask if scholars have absolutely no interest in distributing their work through publishers then why do some still do it?  I think the discussion needs to be broadened to the legitimacy and authority of open access material.  As Kathleen Fitzpatrick makes clear in her book, Planned Obsolescence (NYU Press, 2011) authors still rely on print journals because they give more authority and legitimacy to the authors work than publishing the same work in an online open access journal.

Karl Fogel, Producing Open Source: How to Run a Successful Free Software Project” gives a great introduction to the history of open source software by talking about the creation of GNU/Linux system by Richard Stallman and Linus Torvalds. Stallman created the General public license that said the system could be freely distributed and any derivations of this software needed to be open access as well.  He also gives a very detailed how to guide on how people can create their own open source software themselves.  This book in itself is a good real world example of how open source software can work along with proprietary software.

The best part of Creative Commons is that it empowers individuals to make their own choices about how to balance the personal property rights with the free flow of information that promotes the common.  They are not just defaulting to the standard position, which inherently endorses the all rights reserved model, and they are actively opposing the pressure of big business to keep extreme copyright protection, which Lessig says goes against common sense.



Filed under US History

2 responses to “The Challenges of Creating Law for A Spectrum: Copyright and Open Source

  1. I actually thought Lessig took a pretty middle of the road approach. I think the best way to conceive of copyright is really as a government benefit like welfare or perhaps an arts subsidy. Publishers, studios, and recording companies as well as artists are asking the government through the courts to enforce penalties on those who attempt to produce and market something that is too similar to their original. Like all government benefits there should be a good and compelling reason that we spend public money on enforcing this policy. “Disney might make a lower profit” is not such a reason. For the example of AIDS drugs in Africa, it seems to me that your example of protecting patents and then subsidizing drug cost gives the drug companies in question two extra benefits when we could accomplish the same goal by only scaling back one — namely the way we enforce drug patents internationally.

  2. I like how you listed the clause in the U.S. constitution that pertains to copyrights. I think Lessig should have refereed to it more in making his argument. (He did somewhat, but not enough I felt to help those of us who are not constitutional scholars become more familiar with the history of patent laws.) I think the clause you referenced also supports his claim that the Sonny Bono Act should be make unconstitutional. The clause itself says that patents should be “limited.” Obviously “limited” is somewhat ambiguous, but I think most of us could agree that 95 years for a patent is probably not what the framers of the constitution had in mind when they crafted the clause. I think it was originally 14 years for patents, which had to be specifically registered by the creator to claim the license. Now everything is automatically under patent, which seems nuts. I recently uploaded the Creative Commons icon on my blog, but before I did so, I guess I could have sued anyone who quoted from my blog without my permission. (Not that anyone would want to though!) The whole automatic patent system we have now just invites legal entanglements and abusive, in my opinion.

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