Why Open Content Matters

Don't be misled by the e-commerce hiccup;
we're on a digitization juggernaut. Just a few years ago,
leather-bound DayTimers dominated business meetings, but no longer;
today, you'll find a preponderance of Palm Pilots. As for that
novel or newspaper you're reading, doubt it not: digitization is
coming. Of course, you needn't worry about print media disappearing
overnight; if anything, the Internet is fueling a
renaissance
of newspaper reading. Beneath the surface, though, print
media have changed. The underlying technology is already digital,
from the point of creation to the means of national and
international distribution. As publishers are trying to capitalize
on their digitized product, they're pushing the US Congress to
enact legislation granting them what amounts to real property
rights in perpetuity over printed material--rights in which
even
the authors do not share. Coupled with these disturbing
legal developments, the digitization of print media archives
presages the rise of a world in which access to basic facts and
scientific knowledge is parceled out by a state-protected
pay-per-view industry--and as you'll learn in this article, that's
bad news for democracy. If for-profit copyright holders get their
way, democratic notions concerning public access to factual
information may seem just as quaint as a DayTimer seems to the
Palm-toting digerati.In this article, I'll argue that the open
content movement--a movement to release written
documents with a license similar to the
GNU General
Public License (GPL)--is beginning to stir for precisely
the same reasons that launched the Free Software movement in the
1980s: the realization that a for-profit industry was about to lock
up indispensable public knowledge and, in so doing, pose a grave
threat to the advancement of knowledge and human welfare. This
time, the stakes are, if anything, even greater. If the social
goals of the Free Software movement mean anything to you,
please--read on. (Fair warning: this is a bit long, but I hope
you'll conclude it's worth the effort.)WHAT'S THE PROBLEM?In what follows, I'll argue the healthy democracy depends not
only on the ability of citizens to access facts and ideas freely,
but also to produce derivative works that
substantially incorporate and rework the means of
expression found in copyrighted works. Be
forewarned: by contemporary standards, my position is a decidedly
fringe perspective, notwithstanding the fact that, in my view, it
aptly characterizes the view that prevailed during the American
republic's first century (a point to which this essay returns).
To be sure, it's widely agreed--even today--that the free
flow of facts and information is important to a democracy. Vital to
a successful democracy is a flourishing civil
society, a "sphere of voluntary, nongovernmental
associations in which individuals determine their shared purposes
and norms"
(Netanel
1996; I follow his argument closely here). A robust civil
society fosters an embedded and self-perpetuating "democratic
culture" that make it resistant to tyranny. But such a culture
cannot endure in the absence of free access to
facts--facts about what has happened, what the
government is doing, how decisions were made, who benefits from
such decisions--and the ideas that enable
people to link these facts into meaningful patterns by which they
can engage in positive political action. Of course, copyright makes
facts and ideas widely available by providing incentives for
authors and publishers to make them so; copyright furthers this
purpose by giving no protection to the facts and ideas, but only to
the author's unique expression of these facts and ideas, in a
copyright work. From this perspective, voiced by neoclassical
economists and legal scholars influenced by the neoclassical
viewpoint, extending the scope and duration of copyright can only
enhance the contribution made by copyrighted works to democratic
deliberation.But I would like to argue that democratic deliberation may
legitimately involve appropriations of a work's expression as well
as the underlying facts and ideas. To rob an idea of its most
eloquent expression--consider "I have a dream" or "Ask not what
your country can do for you; ask what you can do for your
country"--is to rob it of its life and force, as
Netanel
(1996) compellingly argues. This point is especially valid
when one considers artistic or popular works that can advance
powerful political ideas in a compelling ways. In addition, the
purposes of democratic political deliberation are sometimes best
served by permitting the appropriation and complete reproduction of
an entire copyrighted work. For example, in
1971, the New York Times started a series of
articles that reproduced the text of a secret Pentagon study of the
Vietnam conflict, now known as the Pentagon
Papers. Under President Nixon's direction, the US
Justice department attempted to suppress the publication of the
Pentagon Papers on national security grounds; however, the US
Supreme Court subsequently ruled that the constitutional guarantees
given to the freedom of the press overruled other considerations,
including national security. What is more, the exigencies of
political deliberation required the publication of the
full text of the Pentagon
Papers, for only then would citizens be able to judge
all the nuances of the compelling question placed before them: the
wisdom of continuing to support the South Vietnamese regime.Today, it's not entirely certain the Pentagon
Papers would see the light of day, and a Justice
Department bent on suppressing them would doubtlessly turn to
copyright law rather than appealing to national security concerns.
Consider what's happening to Free Republic
(http://www.freerepublic.com;
for a legal scholar's analysis, see
Benkler
1999).Unlike most news-oriented web sites, Free Republic's
readership is growing at an explosive rate, and the reason is
partly that, like other equally successful experiments in
open
media, Free Republic makes full and innovative
use of the Web's potential as a new communications medium. The term
open media refers to news-oriented sites that
republish news articles in a clearly defined intellectual context
and openly invite reader commentary
(Katz
2001). But Free Republic goes much further than most open
media sites, and that's why it's in trouble. Users are permitted to
post news articles in their entirety. One
could argue that such appropriations are entirely legitimate within
the scope of US copyright law, as it permits uncompensated excerpts
totaling 100% of the original copyrighted material when doing so is
essential for effective public analysis and political deliberation.
And Free Republic's readers post the news articles in the context
of an extremist, right-wing narrative in which the media is seen to
be little more than the tool of the "liberal establishment"; for
example, Time is described as "Ted Turner's
Commie Rag". The context demands publication of the entire text,
which readers then dissect in a way that often requires exacting
attention to a subtle turn-of-phrase buried in the midst of the
article. In sum, Free Republic's success in fostering a forum for
political deliberation hinges on its readers' ability to
appropriate copyrighted works without payment or permission,
republish them and utterly transform them in the context of a
causticly critical narrative that satirizes and ridicules the
"liberal media," and lays bare the full text of the articles for
massively invasive surgery on Free Republic's operating
table.Although I recognize that Free Republic is indeed fostering
the spirited debate and deliberation that is part and parcel of a
healthy democracy, I personally disagree, vehemently, with just
about everything I've read on the site. That's why I'd love to
start a neoliberal site that subjects the conservative press to the
same, ungentle treatment, but I don't dare. Thanks to a lawsuit
brought by two major newspapers (Los Angeles
Times and New York Times), Free
Republic's days seem to be numbered; a Federal judge has already
issued a
summary
judgment forbidding Free Republic from reproducing articles
from these newspapers. It seems likely that Free Republic will have
to stop reproducing news articles in their entirety, or, more
likely, the sites' creators will have their personal finances
destroyed in a series of legal battles and will be forced,
eventually, to close up shop.Admittedly, Free Republic is difficult to defend. Court
deliberations reveal that Free Republic's founder hoped to profit
financially from the huge numbers of web users attracted by the
site's polemical fireworks, fueled by the appropriation of others'
uncompensated work. Moreover, the aggrieved newspapers argued that
Free Republic's actions would cut into the market--minuscule, by
most accounts--for their pay-per-view archives. Still, these
objections ignore the larger issues at stake. To argue that one
must eschew profits in order to foster serious political
deliberation places citizens at a serious, if not fatal,
disadvantage vis-à-vis wealthy media corporations. Should
the New York Times have been forced to
reincorporate as a nonprofit in order to publish the
Pentagon Papers? Moreover, what interests Free
Republic's readers is today's news, and the site's commentaries on
today's news, not yesterday's. I seriously doubt whether either of
the plaintiffs could prove they're suffering a loss of income from
their lightly-used archives due to Free Republic's activities. But
the newspapers reply that what counts is the principle at stake:
the right of these newspapers to have exclusive control over the
distribution of their "properties" in the new, networked
medium.In the end, the Free Republic case shows why the site's
extremist, right-wing perspective on the so-called "liberal media"
is flat out, dead wrong. If the "liberal media" really were driven
by pinko political commitments, the Times of
our largest cities would act in such a way that neoliberal
commentary sites modeled on Free Republic could emerge without
fetters. Instead, they're suing Free Republic, and the result sends
a chilling message to anyone who would like to use emulate Free
Republic's lead. Why are the newspapers attacking Free Republic?
Call me cynical if you like, but in my view, the "liberal media"
are much more interested in the bottom line than promulgating a
political perspective. As media executives understand the
opportunities available to them, they must attack any attempt to
horn in on any competing claims to what they see as their exclusive
right to market their "properties" on the Internet. That is
precisely why the same newspapers are doggedly defending themselves
against a lawsuit brought by freelance authors, who claim they
deserve a slice of the Internet take.To sum up my argument, I take issue with the commonly
asserted argument that copyright law adequately serves the goal of
democratic deliberation by ensuring the diffusion of facts and
ideas throughout society. Genuine political deliberation may
necessitate the appropriation and transformation of copyrighted
works in ways unkind to authors and copyright holders. To the
extent that fostering democratic deliberation matters, copyright
law should strike a balance between the interests of authors and
copyright holders, who naturally seek a return from their works,
and the legitimate interests of a people who would govern
themselves. As the following section explains, there's a compelling
argument that US Copyright struck exactly the right balance during
its first century. Since then, and particularly since the 1970s,
copyright law has been hijacked by wealthy copyright holders, and
the consequences--illustrated by Free Republic's persecution--are
not healthy for democracy.US COPYRIGHT: THE FIRST 100 YEARSFrom the passage of the first copyright legislation in
Congress (1790) until the passage of the Chace Act almost exactly
one century later (1891), the US enjoyed what may well have been
the optimum copyright regime for democratic political deliberation
and all of its positive consequences, including rapid social and
economic development.Mandated by the US Constitution (Article 1, Section 8), US
copyright law gives copyright holders the right to duplicate,
distribute and perform works that are "fixed in a tangible means of
expression"; however, the protection applies only to the expression
of the underlying facts and ideas, not to the facts and ideas
themselves. In Folsom v. Marsh (9 F. Cas. 342 [C.C.D.Mass. 1841,
No. 4,901]), Justice Story introduced the British doctrine of fair
use, which holds that the state must indeed endeavor to secure for
authors the enjoyment of their copyrights but not to the extent
that doing so places "manacles upon science" (Lord Ellenborough,
quoted in Loren 1997).The fair use doctrine establishes guidelines--complex and
situationally dependent ones, to be sure--that permit authors to
appropriate the expression found in copyrighted works without
seeking permission or paying royalty fees, so long as the
appropriation is done for the purposes of analysis, commentary or
parody. But the US system went much further than this. As
originally formulated, US copyright law would also have delivered
the entire copyrighted work--facts, ideas and
expression--to the public for such purposes after a maximum
copyright period of only 28 years. After copyrights expire, works
become part of the public domain. This
principle has been decisively affirmed by the US Supreme Court:
"The copyright term is limited so that the
public will not be permanently deprived of the fruits of an
artist's labors" (my emphasis; Stewart v. Abend, 495 US 207, 228
[1990]). What is more, no copyright protection was given to any
work published by foreign authors, and some argue the original US
copyright law actually encouraged US citizens to pirate foreign
works. To justify this policy, Alexander Hamilton pointed to the
need to foster infant American industries. Protection for foreign
copyrights was not recognized in the US until the passage of the
Chace Act in 1891
(Post
1998). In sum, the democratic aims of copyright as
envisioned in the US Constitution, "promoting the progress of
science and the useful arts", were obtained, during the first 100
years of the US republic, not only by guaranteeing authors a period
of protection for their writings, but also by withdrawing this
protection after a "limited time" and by permitting no protection
whatsoever for foreign authors. Central to the Constitutional
conception of copyright, in short, is a flourishing public domain
in which authors can readily appropriate the expression of other
authors.What is the public domain, and why is it
so important to the growth and development of a democratic civil
society? Yochai Benkler, a law professor at New York University,
defines the public domain in these terms: "Information is "in the
public domain" to the extent that no person has a right
to exclude anyone else from using the specified information in a
particular way. In other words, information is in the
public domain if all users are equally privileged to use
it"
(Benkler
1999). This is an exceptionally important definition
because it highlights the importance of the public domain for
political speech: If one is making use of a public domain document,
one is free from the restraint that must necessarily accompany the
"fair use" of a copyrighted document; as the courts have repeatedly
stressed, just what constitutes "fair use" is impossible to define
a priori and rests, ultimately, on a court's
judgment. Ensuring the eventual passage of copyrighted material
into the public domain provides the only sure way that future
writers can fearlessly appropriate works of expression, recombine
and reformulate them in new and compelling ways and make the
resulting reformulation available to the public.THE DESTRUCTION OF THE PUBLIC DOMAINIf an expansive and permissive definition of fair use and the
rapid flow of information into the public domain are vital to a
thriving civil society, the US is in serious trouble. Driven by
lavish donations from lobbyists representing wealthy copyright
holders and media corporations, the US Congress has passed a series
of laws (including the notorious
Digital
Millennium Copyright Act of 1998) that not only restrict or
eliminate fair use insofar as digital media are involved, but also
criminalize any
attempt to circumvent copyright management systems (even if
no infringing duplication takes place!) and extend the duration of
copyright to the point of near-perpetuity (with extensions, more
than 150 years). The most recent example of such legislation is the
Copyright Term
Extension Act (CTEA) that extends existing copyrights for
20 more years so that cartoon figures such as Mickey Mouse will
remain protected. One result of CTEA is that no
copyrighted works will enter the public domain for an entire
generation. (For an excellent overview of the
transformation of copyright into something approaching real
property, see the excellent legal review by Fisher 1999, which is
available
on-line.)
Other laws at the state level, such as
UCITA,
would give the force of law to "click-here" license agreements for
digitized written works. One such license, the one you agree to
when you use Adobe's
Glassbook
Reader, reportedly forbids licensees from
reading the work
aloud!There's more legislation on the way. For several years, the
US has been mulling over various versions of a database protection
bill (for an overview, see
Band
1999; for an update, see
Yu
2001). The bill's impetus is the US Supreme Court's
surprising decision in
Feist
vs. Rural Telephone (499 US 340 [1991]), in which the Court
refused to recognize that a telephone book, despite the undeniable
cost and labor required to assemble it, contains a form of
expression of sufficient creativity or originality to merit
copyright protection. The decision cast into doubt whether
digitized databases, such as collections of full-text newspaper
articles, could be protected by copyright in the absence of some
sort of creative organization. But the whole point of a relational
database system is to avoid organizing the material a priori so
that users can retrieve material in the most efficient manner
possible. Feist implies that databases cannot be protected at
all--which is why database vendors are so keen on claiming new
forms of protection for their products. Another reason lies in the
need to bring US law into conformity with the World Intellectual
Property Organization (WIPO) treaty, which calls for special forms
of protection for databases. What's generally omitted in
discussions of WIPO, however, is the fact that US database and
software vendors played a significant role in shaping the WIPO
documents.If database vendors succeed in their lobbying efforts,
for-profit vendors of newspaper articles and scientific journals
may be able to lock up not only the expression found in these
articles, but even the facts and scientific findings contained in
them; a major impetus for this legislation is to restore the
principle, abandoned in Feist, that the "sweat of one's brow" is
worth something after all. Access to such databases could be
controlled by means of
copyright
management systems (CMS), the circumvention of which is
already a criminal act subject to penalties in excess of those used
in cases of second-degree murder in most US states. To be sure,
market economics may demand that database vendors do not impose
strong access constraints on users of archival materials. But the
point is simply this: They could. What is more, they can do so on
the basis of whatever whim happens to occur to them at the moment.
This is a point best appreciated by noting the long, expensive
struggle waged by the AFL-CIO and other labor unions to gain access
to business databases offered by Dialog Information Systems, Inc.
Union researchers could of course access the same material by
visiting a university library, but the inefficiency of
non-computerized research techniques prevents them from competing
effectively with their corporate counterparts, such that the
playing field is no longer level.In sum, the public domain is essentially dead, fair use has
been constrained to the point of irrelevance, and digitized
information is increasingly locked up in systems protected by
Draconian anti-circumvention penalties. For now, you can still go
to the library to access much of the digitized information for
free, but you'll sacrifice the efficiency gained from using
computerized search tools. And when print media finally disappear,
it's anyone's guess whether anything from today's public libraries
will survive in their present form.FIRST STIRRINGS OF THE OPEN CONTENT
REBELLIONThe trends discussed so far--the increasingly rigid copyright
regime, the chilling effect on free speech of a sharply constricted
fair use regime, the destruction of the public domain, and the
growing amount of vital information that's locked up in systems
capable of enforcing pay-per-view access--have led more than
100,000 scientists worldwide to sign an
open
letter demanding that scientific journals in the fields of
medicine and the life sciences release their copyrighted articles
after six months to an on-line public library,
PubMed
Central, which would provide free and unrestricted access
to the information these journals contain. Signatories to the
letter are refusing to publish in journals that won't cooperate
with the PubMed Central initiative.What's behind this development? It's an attempt to create a
balance between the need of commercial, for-profit publishers to
derive income from publishing scientific journals, and the
contrasting
right
of the public to have free and open access to the knowledge
created by "tens of billions of dollars of mostly public money each
year, and representing the original ideas and millions of hours of
hard work by hundreds of thousands of scientists, and the voluntary
participation of hundreds of thousands of patients in clinical
studies" (from the
Public
Library of Science FAQ). Many scientific journals make
their articles accessible to the public after six months, and
evidence suggests they
do
not lose money by doing so; subscribers are willing to pay
for the latest information, even if older articles are available
for free.Several journals have already agreed to play ball with the
Public Library of Science, and they've released their older content
to the archive. According to the Public Library of Science, these
articles are part of a fast-growing "public domain" of crucial
knowledge in medicine and the life sciences that will remain freely
available to the public. But don't be to sure. The Public Library
of Science allows the source journals to retain their copyright on
the republished works. This means publishers can withdraw their
participation at any time, and they can also bring lawsuits against
users who appropriate and distribute the articles in a way that is
not to the publisher's liking.When will the first lawsuit occur that deals with material
appropriated from the Public Library of Science? It's just a matter
of time. Suppose I put together a textbook consisting of classic
articles in the last ten years of the life sciences, and it just
happens to eat into the market for one of these publishers' books.
Do you think they'll sit back contentedly? And just imagine what
would happen if I put together a string of articles culled from the
Public Library of Science that demonstrates bias in studies funded
by certain pharmaceutical companies. See you in court, baby!My point is this. In the absence of a true public domain, in
which no one person's claim to the rights to use a work are in any
way superior to any other person's, those who would make
information freely available must develop an alternative to
copyright that replaces the functions of the public domain for
written works. The failure to do so is to embroil the "freely
redistributed" information in a legal quagmire increasingly
inimical to the exercise of free speech.LICENSING HOLDS THE KEYAs much as I respect the Public Library of Science and the
values it represents, there's a bit of naivete about this movement
immediately recognizable to anyone familiar with the history of
free software. Posed between an increasingly rigid copyright regime
and public domain software, which for-profit companies could
appropriate, compile and resell, the architects of the Free
Software movement recognized a need for a Third Way. The most
important achievement of the free software movement may well lie in
the legal and conceptual arena--specifically, the General Public
License (GPL)--which provides a meaningful alternative to the
prevailing copyright regime.As most readers of this journal doubtless realize, the GPL
uses a form of contractual enclosure--a software
license--to
impose constraints on what a user of a GPL-licensed program may
do. Specifically, these constraints prevent a user from
denying to others the same
user
rights that were granted when the program was obtained,
including the right to access the source code, the right to
duplicate and distribute the software freely, and the right to make
derivative works out of the original code. Although the GPL does
not prevent users from selling GPL-licensed works, it does prevent
them from copyrighting the software in any way that departs from
the GPL, closing up the code so that users cannot access it or
making claims against users who make unauthorized copies of
derivative works.Were the articles published in the Public Library of Science
made available by means of a license similar to the GPL, those who
wished to use this information freely could do so with a clear
conscience and without fear of unexpected legal persecution. That's
not true at the moment, and, from the perspective of the Free
Software movement, the Public Library of Science may be making a
serious mistake.That said, it's far from clear just what an open-content
model should look like and how best to protect written work using a
models derived from the Free Software movement. The next article in
this series will examine a
variety
of open-content models developed thus far, including the
Free Software Foundation's offering, and critically analyze their
usefulness for what might be a crucial role: Preserving the
public's right to access facts and ideas freely in a world in which
information has become a zealously protected right of real
property.Bryan Pfaffenberger is
Associate Professor of Technology, Culture and Communication at the
University of Virginia. He is currently teaching a course entitled
Media Studies 317, "Intellectual Property and Digital Media" and
encourages you to visit the class's
web
site, which is driven by PHP and MySQL.RESOURCESPublic
Library of Science Petition If you're a scientist in the
life sciences or medicine, please consider signing this petition.
You can do so on-line.PubMed
Central provides free on-line access to the full text of
life science research articles.BioMed
Central offers an alternative: An on-line peer-reviewed
journal that bypasses the commercial journal publishing
establishment completely.OpenContent.org
is developing open content licenses for written work.Here's what the Free Software
Foundation has to say about
licenses
for documentation.FURTHER READINGLaw Reviews
Benkler, Yochai. 1999.
"Free
As the Air to Common Use: First Amendment Constraints on Enclosure
of the Public Domain," New York University Law
Review, Vol. 74, May 1999.Benkler, Yochai. 1999.
"The
Free Republic Problem: Markets in Information Goods vs. The
Marketplace of Ideas," paper presented at a conference
entitled Private Censorship/Public Choice: The New Age of
Information Regulation, April 9-11, 1999.Loren, Lydia P. 1997.
"Redefining
the Market Failure Approach to Fair Use in an Era of Copyright
Permission Systems," Journal of Intellectual
Property Law, Vol. 5, No. 1 Fall 1997.Netanel, Neil W. 1996.
"Copyright
and a democratic civil society," Yale Law
Journal, Vol. 106, No. 2, November 1996, pp.
283-387.Post, David G. 1998.
"Some
Thoughts on the Political Economy of Intellectual Property: A Brief
Look at the International Copyright Relations of the United
States," National Bureau of Asian Research, Conference on
Intellectual Property, Congqing, China, September 1998.Other Sources
Band, Jonathan. 1999.
"Armageddon
on the Potomac: The Collections of Information Antipiracy
Act," D-LIB Magazine , January
1999.Katz, Jon. 2001. "Analysis: The Rise of Open Media,"
available on-line at
http://slashdot.org/features/00/06/19/1714239.shtml.Yu, Peter K.
"Evolving
Protection for Databases," JurisNotes.com (viewed April 3,
2001).

email: ljeditors@ssc.com