Adrian Johns’s Piracy: The intellectual property wars from Gutenberg to Gates goes a long way toward contextualizing contemporary legal battles over copyright in the digital age. His research provides us with a detailed and insightful history of the debates surrounding intellectual property. Adrian’s work has been invaluable to my own understanding of the relationship between technological development and intellectual property law. We were very fortunate this semester to have Adrian answer a handful of student questions after having read a selection from his book.

Copygrounds: Do you feel there is too much emphasis on economic incentive in contemporary U.S. copyright law? When it comes to the topic of how to reform copyright law a major concern among the students in this class (many of whom are aspiring filmmakers, artists, and game designers) is the potential loss of control over their work and their ability to profit from it. Does the expansive scope and duration of existing copyright protection serve the interests of our aspiring content producers?

Adrian Johns: In some ways there is clearly too much emphasis on economic incentive in the current legal structure – although one could also argue, I think convincingly, that the problem is not over-emphasis as simply a mistaken notion of where the incentive lies. The grossest example is the Sonny Bono Act, which extended the term of copyright protection and attracted the unsuccessful challenge of Eldred vs. Ashcroft. It seems very implausible that the extension of copyright term in that law had any real incentivizing effect – except to incentivize a certain kind of protectionism, of course – and I have never seen a credible study maintain that it did. Yet the language at its passage was often about incentives for creators. There is a basic contention at the heart of such arguments that seems unobjectionable, but when extended to such lengths it becomes absurd.
In general, I don’t see how the extension of duration in 2011 serves the interests of artists (and authors, film-auteurs, etc.) at all. Everyone knows the problems that documentary filmmakers and others face in trying to make new creations because of the obstacles placed in their way by these laws – and, more, by the prospect that some agent of the content industry will want to profit by enforcing them. On the other hand, the lifetime of most creative products is nowhere near 75 or 95 (or whatever) years, so terms this long do nothing to incentivize the content industry itself. I do think that some duration is appropriate, but I am almost a ‘strict constructionist’ on the question of how much. That is, I think the writers of the first copyright act in 1709-10 (although their wording is a bit of a mess) got it about right: 14 years in the first instance, renewable for another 14 by the creator. That period was probably adopted because it existed in patent systems, where experience over centuries had made it familiar; hypothetically, it represented the length of two apprentice generations, and thus the time that a newly-introduced craft might need to become established. In a utopian world I think we would return to something close to that. If some compromise were needed, I would tend to prefer the ‘licence of right’ system that the liberal economist Arnold Plant proposed in the 1950s, and that actually existed in UK copyright law for a few decades in the twentieth century: that is, a compulsory licence system. The idea is that after the period of exclusivity ends, there is another period (say, 14 years again) in which anyone can use a work but must pay the proprietor a set fee, the amount of which is defined by public authority. This gets around the worst problems of the current system, which have to do with exorbitant fees and penalties, outright suppression of works, and, not least, the simple refusal of proprietors to reply to requests for use, which in effect amounts to suppression. (I faced the last of these myself in writing a book about pirate radio, when I wanted to quote some lines from the band Pulp: the media corporation that owned them simply would not reply to repeated requests – including pleas to let me send them however much money they might want – and in the end I had to delete the lines.)
I suppose artists could be concerned that a system like this would represent a loss of control. And in theory it would. But my impression is that in practice if any loss at all were involved, it would affect a tiny minority – and designing a system to protect that minority would mean negatively affecting vastly more artists in all the ways I’ve mentioned. The reality is that (a) very few works have a commercial life anything like as long as a copyright term; (b) proprietorship – and control more generally – rests with the publisher/agent/media corporation, not the author; and (c) ‘information wants to be free’ in any case, and after so many years a work is liable to have leaked out in sufficiently diverse ways that authorial control is in any case a fantasy. And all this is not even to claim, as many do, that the public has an interest in creative goods too, because nothing is ever created de novo, and that works should, morally speaking, become public after a certain interval defined in utilitarian terms.
The issue of scope is harder, because it isn’t so clear that extending copyright protection to, say, clothing design (a recent topic of controversy) is any different in principle from extending it to books or DVDs. The design example is an interesting one, incidentally, because economists skeptical of IP have here and there pointed to it over decades as an example of a creative industry that survives perfectly well without IP laws: the argument has typically involved appealing to market segmentation (street knockoffs sell to a different market from high street retailers, which sell to a different market again from Milan couturiers, so the regurgitation of designs does not really harm originators very much, and may even stimulate them to new creativity). My own personal instinct would be to approach this on a case-by-case basis. If it’s apparent that a given creative activity has proven sustainable without the constraints of IP, as in this case, why introduce it where its effect is inevitably going to be to secure the interests of existing players? I am inclined to think that it isn’t realistically possible to introduce a regime that wouldn’t primarily secure those interests.
So in the end I would say that the answer is no, strongly in the case of duration and weakly in the case of scope. Once beyond a fairly short duration, extending terms does not serve artists’ interests. And I’m skeptical that it is possible to introduce copyright systems into new areas without serving primarily the interests of the existing grandees at the expense of present and future creators. (And I would add that I am not at all convinced that extension serves the content industry’s own interests in the end either: I doubt that resting on long-term rents derived from quirks of statute law is a good recipe for a dynamic, responsive industry.)
Finally, let me add something speculative that has come to mind just this week because we had Donald MacKenzie speak at our regular workshop here. MacKenzie is a great sociologist at Edinburgh who in recent years has been working on the complex systems of finance. He’s published some excellent accounts of the credit crisis and the 2008 crash in places like the London Review of Books, which you’ve probably read. It made me think, because one major argument for copyright monopolies has always been that they are a way of dealing with risk: that is, owners say that the monopoly is necessary in order to cross-subsidize, because most creative ventures are failures and the few that succeed have to pay for the many that don’t. It’s an argument that has been made for centuries. But over the last generation we’ve seen the development of sophisticated new ways of dealing with risk. We collectivize it and place it into a financial market as a form of derivative. The massive fact of the 2008 crash notwithstanding, the strategy is basically a sound one. So why are the content industries still insisting on dealing with risk in such an outdated fashion? Instead of requiring monopolies, why aren’t they designing derivative financial instruments that would scoop up the risk of failed books, CDs, DVDs, etc., in the way that other industries do with their risks? Perhaps such a strategy already exists (one could argue that it exists in the financial instruments already issued by corporations like Disney). I am simply ignorant of whether it does or not. But studies like MacKenzie’s do make me suspect that the risk argument for copyright monopolies is acutely vulnerable because it’s based on very old-fashioned financial premises – and that in today’s financial world may lie the possibility of a radical alternative to IP itself.

Copygrounds: Do you think that the unstated intention of the content-producing industries is perpetual copyright protection? That is to say, do you believe that there will be a recurring push or lobbying effort to extend the duration of copyright protection every time we run up against the end of existing statutory protections?

Adrian Johns: I’m sure that the content industry would love to have perpetual protection if that were seriously proposed, but I don’t really think that it is deliberately aiming at that end. The idea has been rejected too many times in too many contexts for it to look like a realistic option in any plausible scenario. (That’s not to say that people will ever cease to agitate for it, as writers – I think Michael Crichton is a relatively recent example – occasionally do today, or that it could ever be logically refuted in an absolute sense.) I’m cautiously hopeful that the big media companies contain people insightful enough to see that such a system would in fact cripple their own enterprises, because it would shut off enormous portions of the intellectual world from use as raw materials, and it would submerge them in endless information retrieval costs to use much that was in principle usable. They would find themselves playing some corporate version of the Jonathan Pryce character in Terry Gilliam’s Brazil.
That said, I do think that powerful corporate interests in the content industry will always opt to have copyright protections longer and stronger than they are at any given point. The standard cliché is to invoke Mickey Mouse, and like everyone else I fully expect a lobbying effort to gear up as the end of the copyright term on him approaches. In other words, the point being made in Eldred v. Ashcroft – that the Bono act implied a violation of the “limited terms” phrasing of the constitution – was, I think, correct, and my own personal view (I am no lawyer) is that the Supreme Court should have recognized that. (It seems pretty clear that the justices thought that the law was a bad thing; they just didn’t see it as unconstitutional.)
But I also think that the lobbyists are going to have an increasingly hard time of it in succeeding rounds of this endless quest to increase terms. The opposing interests are constantly getting larger, richer, and more coherent, with better lobbying connections of their own. I think that if the Bono act were to come up in Congress now it would have a harder time than it had then, and in a decade’s time it would have a harder time still. It is already hard to find anyone who is not a shill for Big Content who thinks that that law is a good idea – I’ve never met anyone who does, and, living where I do, I know some pretty staunch neoliberal law-and-economics types. Perhaps I’m naïve, but I doubt that a movement that is solely a matter of a few multinationals and their lobbyists can go on winning forever, however much cash they throw at Capitol Hill. I’d even be inclined to stick my neck out and make a contrarian forecast: I predict the copyright term will be reduced in the US before it gets lengthened.
But that prediction only holds in the absence of something external impinging on US lawmaking – by which I mean a new international trade round, or a multilateral treaty. As we have seen with ACTA, the venue for bids to increase copyright terms has partly moved beyond Congress and into international forums. And as ACTA implied, it may well be possible for an administration to increase copyright terms within the US by signing an international treaty and getting Senate approval for it – a move the constitutionality of which has yet to be tested, I believe. Strangely enough, it is a very similar situation to that faced by critics of international copyright in the nineteenth century, who suspected that the administration would introduce Anglo-American copyright by means of an international treaty. But nowadays we are dealing with a consistent, stable set of transnational institutions, not just one treaty. In any case, this international sphere is where the debate will be conducted from now on, more than in Congress itself.

Copygrounds: Do you see any similarities between your notion of domestic piracy and Remix culture? Or are domestic forms of piracy centered on reproduction while Remix involves transformative use?

Adrian Johns: To answer this I think one needs to go back to cassette tapes and the 1970s. I’m inclined to think that the historical links between the world of tapes and later digital remix cultures make for a relation that is stronger than similarity. Complex compounds of practice and principle such as those which have emerged around remixing are unlikely to be explained by single causes, and in the case of remixing they aren’t reducible to the properties of digital networks. (Or rather, the properties of digital networks themselves have been shaped by the social practices, norms, etc., of an earlier time, so a reduction of this kind would in fact be no reduction at all.) I’m convinced that the world of audio cassettes played a big role in shaping the everyday moral economy of digital remixing. The relation is probably more second-order for video, simply because audio cassettes were cheaper, more accessible, and more ubiquitous than Betamax/VHS, and because they arrived first.
It’s well known that sophisticated and diverse systems of sharing and distributed creativity coalesced around audio cassettes. Cassettes were a standard – something that is crucial to systems of sharing and distributed creativity, as without standards sharing and distribution become forbiddingly onerous – and they were in effect an ‘open source’ one, because Phillips declined to patent the technology. In various contexts, ranging from early home computing to educational reform movements in Latin America inspired by Liberation Theology, users saw the potential to make network-like informal institutions. So one finds, for example, Ivan Illich proposing to distribute cheap tape decks and cassette “libraries” to south American villages in place of the official education system, and the Home Brew Computer Club in Palo Alto devising rules for the circulation of early shareware on cassettes. It’s interesting to note, too, that these systems were devised in conscious contrast to what were portrayed as monolithic cultural monopolies: ITT, AT&T, IBM, the US Government, mainstream broadcasters, and allegedly suppressive education authorities. The work that has been done recently on connections between these movements and early ideals of digital community is intriguing and, to me, convincing.
As for the distinction between mere reproduction and transformative use, I think that is hard to sustain in general. Doubtless there are many individual cases in which one can make it stick in practice for a courtroom audience, and that matters. But major problems arise when one tries to formulate a general rule by which to cast the distinction. There is just too much well-attested evidence, going back decades at least, that a rule of this kind has to end up penalizing work that can reasonably be regarded as creative, even if it involves merely recontextualizing an existing piece of creativity.
Having said that, I’d add two other things.
First, there are hard and harder cases. The real nub here is not with copyright but trademarks, and not with music (etc.) but pharmaceuticals. It’s one thing to complain of the suppression of people reproducing music files, but it’s another to worry about replicating drugs. Counterfeiting medicines is a real menace, and in that context people are more willing to accept compromises to what otherwise seem invaluable rights for the sake of information security. I know that this is to move away from the topics of your course, so it’s an extraneous point. But in general I think that IP skeptics (like any skeptics) are well advised to test their arguments against the hardest cases rather than the less hard ones.
Secondly, it’s worth noting, of course, that the question of principle is often rather moot. In practice the IP industry’s anti-piracy technologies tend to ignore the distinction and attempt to prevent reproduction whether or not a critic might call it transformative. DRM technologies are notoriously insensitive to ‘fair use’ criteria. I think that since about 2000, it may have been more important to pay attention to the development and deployment of these technologies than to remain on the terrain of principle and doctrine as though that was where the practical issue would be decided. The anti-pirate technology industry acts in a different field, and more or less ignores the questions of principle.

Copygrounds: Is peer-to-peer file-sharing a domestic form of piracy? Can any Internet technology based on sharing be considered domestic?

Adrian Johns: I’m undecided myself about the first of these, but about the second I’d be inclined to say yes: any Internet technology can be considered domestic. That doesn’t mean it will be, however. I do think that some of the passion that p2p controversies arouse can be explained if we concentrate on the question of how such a question is answered in practice.
On the one hand, clearly anything that involves p2p or similar technologies isn’t a matter of household practices in any kind of isolation. The very character of these technologies is to extend across spatial divides like the household threshold. But on the other hand, cassette tapes, radio receivers, and even printing presses involved practices that extended across domestic boundaries too, and ‘home piracy’ was defined (and denied) on the basis of those. So I don’t think the network character of digital systems rules out their having a domestic character too.
The key point for me is that whether something is ‘domestic’ or not is not a matter of the essence of the technology. It’s a matter of attribution, often by outsiders and after the fact. Domesticity is in the eye of the beholder – and I’m sure that more often than not it’s a matter of contestation. The reason for that contestation, of course, is that the attribution carries consequences. The consequences apply as much to policing the practice as to the practice itself. In Anglo-America, if something is domestic, then detecting and preventing it may well involve intruding on a space the autonomy of which we as a society value very highly. So an identification as domestic both elevates the practice and imperils its policing. That was very clearly the case with the home taping practices of the 1970s, and it seems almost as clearly the case now with file-sharing.
This means that we should be focusing on the processes by which domesticity is attributed or not. A couple of things about that:
It means, inter alia, identifying the alternatives. If something like home taping or casual p2p sharing is not domestic, what is it? The content industry is inclined to align such practices with commercial, large-scale piracy – hence the old practice of massive lawsuits against downloaders, with huge penalties at stake, which in the end the industry ceased because it was seen as hopelessly impolitic.
Second, there is (as in the other questions here) a practical edge to this question when it comes to policing. We see it in the content industry’s attempts to identify internet addresses with individuals: repeatedly, law firms (some of them quite unscrupulous) have tried to extract penalties from individuals on the basis that downloading has been traced – allegedly – to their ISP account addresses. In practice this means that the domestic threshold is precisely in question, because a major reason why this identification of address with individual doesn’t hold water is that so many of us have home wireless networks that are insecure. Until recently, for example, my own domestic network was open (because adding security reduced its range drastically, for some reason) and my neighbors would routinely use it to access the Net. I know they did because they happen to be a bunch of conscientious priests-in-training and they felt bound to tell me. I’m sure most people wouldn’t. Nowadays judges are increasingly inclined to dismiss the address:individual identification as they become aware of this problem. But that may change if society comes to see a householder whose wireless system is open as ipso facto blameworthy (antisocial, morally accountable, and so on). That’s quite possible.