Why Open Content Matters

by Bryan Pfaffenberger

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.


From 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.


If 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.


The 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.


As 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.


Public 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.


Law 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).

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