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.)

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.