The State of Copyright

The complex relationships of cultural creation in a globalized world

Debora Halbert

• Publisher: Routledge
• Year: 2014
• Print ISBN:
  9780415857383
• eBook ISBN:
  9781317817420
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

This book seeks to make an intervention into the ongoing debate about the scope and intensity of global copyright laws.

While mapping out the primary actors in the context of globalization and the modern political economy of information ownership, the argument is made that alternatives to further expansion of copyright are necessary. By examining the multiple and competing interests in creating the legal regime of copyright law, this books attempts to map the political economy of copyright in the information age, critique the concentration of ownership that is intrinsic in the status quo, and provide an assessment of the state of the contemporary global copyright landscape and its futures. It draws upon the current narratives of copyright as produced by corporate, government, and political actors and frames these narratives as language games within a global political project to define how information and culture will be shared and exchanged in the future. The text problematizes the relationship of the state to culture, comments on the global flows of culture, and critiques the regulatory apparatus that is in place to commodify culture and align it with the contemporary nation-state. In the end, the possibility of non-commodified and more open futures are explored.

The State of Copyright will be of particular interest for students and scholars of international political economy, law, political science, anthropology, sociology, cultural studies, library sciences, and communication studies. It also will appeal to a growing popular audience that has taken an interest in the issues of copyright.

1

INTRODUCTION

The state of culture

Large corporations, of course, are blinded by greed. The laws under which they operate require it—their shareholders would revolt at anything less. And the politicians they have bought off back them, passing laws giving them the exclusive power to decide who can make copies.

There is no justice in following unjust laws. It’s time to come into the light and, in the grand tradition of civil disobedience, declare our opposition to this private theft of public culture.

We need to take information, wherever it is stored, make our copies and share them with the world. We need to take stuff that’s out of copyright and add it to the archive. We need to buy secret databases and put them on the Web. We need to download scientific journals and upload them to file sharing networks. We need to fight for Guerilla Open Access.

With enough of us, around the world, we’ll not just send a strong message opposing the privatization of knowledge—we’ll make it a thing of the past. Will you join us?

Aaron Swartz, “Guerilla Open Access Manfesto”¹

For those following copyright and access-to-knowledge (A2K) issues, the death of Aaron Swartz came as a heartbreaking and powerful blow. Swartz had been indicted by the U.S. federal government under the Computer Fraud and Abuse Act (CFAA) for downloading files from the academic database, JSTOR, without authorization. JSTOR hosts a digital archive of old academic papers in the humanities, which are of primary interest only to academics. The “value” to JSTOR is that libraries pay a significant fee for access. The “value” to academics using the database is that it makes research and citation much easier in the fields covered by JSTOR. The “value” to those whose work appears in the database is not monetary because journal authors do not receive compensation from the digital existence of their published work.² Thus, “value” here is a complex idea.

To download the files, Swartz entered an unlocked storage room at the Massachusetts Institute of Technology (MIT) where he tapped into the computer system and ran a script that allowed him to capture the data.³ Over the course of several days, Swartz acquired millions of JTOR files. His intent was to share these academic articles widely as a political statement that would underscore the existing barriers to access to knowledge. His motivation was to demonstrate how the walls of the information age are used to monetize the intellectual work of others at the expense of the public.

When identified as the perpetrator, the U.S. federal government charged Swartz with wire fraud, computer fraud, unlawfully obtaining information from a protected computer, recklessly damaging a protected computer, aiding and abetting, and criminal forfeiture.⁴ For these charges, he faced up to 30 years in federal prison.⁵ To put the length of this sentence into context,⁶ compare this sentence to the 35 years to which David Headly was sentenced for helping to plan the attacks in Mumbai, resulting in over 167 deaths.

One might question how Swartz’s “crime” would justify even the possibility of such a long sentence, given there was no real harm done. JSTOR did not want to prosecute and the scope of the “crime” committed against MIT included entering an unlocked storage room and tapping into an open and unsecured computer system.⁷ However, the justice department’s agenda included taking computer infractions such as this one very seriously. In the negotiations that followed the indictment, Swartz was offered between three and six months in prison if he pled guilty to a felony offense.⁸

While the Justice Department points to the plea bargain that was offered as evidence that it was not overly harsh with Swartz, its public reasonableness masks the fact that the “crimes” for which he was indicted should not have been considered felonies at all. The fact that these were felony charges to begin with was a reason that Swartz refused the plea. Furthermore, those close to Swartz have a different story to tell about justice and prosecutorial discretion in this case. As Law professor Lawrence Lessig puts it:

Here is where we need a better sense of justice, and shame. For the outrageousness in this story is not just Aaron. It is also the absurdity of the prosecutor’s behavior. From the beginning, the government worked as hard as it could to characterize what Aaron did in the most extreme and absurd way. The “property” Aaron had “stolen,” we were told, was worth “millions of dollars”—with the hint, and then the suggestion, that his aim must have been to profit from his crime. But anyone who says that there is money to be made in a stash of ACADEMIC ARTICLES is either an idiot or a liar. It was clear what this was not, yet our government continued to push as if it had caught the 9/11 terrorists red-handed.⁹

So why the intensity of the federal prosecution? This question can only be answered by understanding the new political economy of the information age. The extent of the possible penalty for these non-violent, arguably not even illegal actions is related to the fact that a computer was involved. Why would a computer make such a difference? Because information, access to it, and its control are the foundations of the new wealth made possible by the information age. As such, the law has been configured to support this new regulatory regime.

In part, the harsh response is related to Aaron’s actions as a political subject. Aaron’s short manifesto, published online and mirrored in many places, was used by prosecutors to demonstrate his “malicious intent” and justify the extensive penalties.¹⁰ Swartz was an advocate of free information and had dedicated much of his young life to fostering better access to knowledge, better communication tools, and the possibility of a world where information was unlocked and free. In his manifesto, written years before Swartz engaged in what he considered to be an act of civil disobedience, he said that, “sharing isn’t immoral—it’s a moral imperative. Only those blinded by greed would refuse to let a friend make a copy.”¹¹ Swartz, as an advocate for access to information, called it a moral obligation to resist the privatization of knowledge.¹²

Aaron was a threat to the political order of the computer-based world. It is possible to suggest a depoliticized motivation for the prosecution of Aaron Swartz—he was after all, breaking the law, and we live in a system where the rule of law prevails.¹³ However, the law is not without politics and is certainly not neutral. Arguing for the intent to share academic papers widely as a malicious theft demonstrates the power of those siding with the current balance of copyright to frame and control how access to knowledge will proceed. Ironically, for a democracy anywhere in the world to fail to see that such laws limit our freedom, demonstrates how powerful is the ideology of private property over information. Freedom of information under the paradigm in which we find ourselves today is only an ideal if that “freedom” is freedom to purchase, concentrate, and own information.¹⁴

The federal prosecution of Aaron Swartz is an example that helps reveal how the nation-state, as the entity with police power, is used to construct a global enforcement regime for the protection of intellectual property (IP). Instead of civil cases brought by private actors, increasingly taxpayer dollars are now used to enforce criminal laws against property theft in intellectual property. The series of laws lobbied for and successfully promulgated by the culture and content industries at national and global levels demonstrate the success of an intellectual property paradigm that increasingly controls information and culture and permits sharing only under the auspices of the limited transfer of a private property right. The state of copyright law today is important because these political battles will define the scope of ownership, sharing, and culture well into the future.

Aaron Swartz’s story is not only a moment of concern but also offers hope that the battle over access to knowledge in the information age has not yet been lost but has rather just been engaged. There are now those around the world who have woken up to the fact that the institutional frameworks for the information age set in motion during the 1980s and 1990s are worth resisting. There are now activists around the globe who have aligned against the efforts to further expand intellectual property protection, as the global protests against the Anti-Counterfeiting Trade Agreement (ACTA), the U.S. protests against the Stop Online Piracy Act, and the growing number of voices wishing to see changes in IP policy, from software patents to geographical indications, demonstrate. Furthermore, the tactics of pro-intellectual property forces are more visible today to the general public than at any time in the past because content industries have turned against their fans and consumers to protect their property.

Not all within a given nation-state will embrace the pro-intellectual property policy position that may be required to join international trade regimes and is generally embraced by governments. States themselves are fractured and diverse entities where one branch may have a different set of intellectual property-related goals that contradict other parts of the state apparatus. However, what is important to note here is that the general trajectory globally is towards more property protection and the underlying assumption upon which policy is made is that more protection is a good thing. The U.S. federal government has led the way in ratcheting up protection of intellectual property. It has done so both domestically and internationally and thus is the starting point for any analysis of global intellectual property law. The United States has led the way, but other countries have implemented their own versions of anti-sharing. Most controversial are the “three-strikes” laws that can be found in France, New Zealand, and South Korea, among other places.¹⁵

Pro-intellectual property interests have used the state to establish a legal regime that has moved well beyond the protection of copyrights, patents, trademarks, and other types of abstractions as a limited monopoly balanced against a public interest, to protecting these abstractions as a form of property to which an original owner must be given virtually absolute rights. In doing so, the state becomes an advocate for a specific political economy of intellectual property that has ramifications for the free flow of information, access to knowledge, and the future of innovation. Intellectual property has always been, but has now more visibly become, an issue of social justice.

The global political economy of information ownership

Copyright law has been enormously successful as a tool to defend past acts of creativity from present (and future) transformations and appropriations. It has also become an excellent tool for concentrating ownership of this abstract property, the vast majority of which is now owned by media and information conglomerates that control access to information, entertainment, and knowledge.¹⁶ In defining the scope of protection in the way it does, intellectual property establishes a specific political economy of ideas and creativity. As James H. Mittelman states about the ideological underpinnings of globaliza...

Table of contents

• Cover
• Half Title
• Ripe Series in Global Political Economy
• Title Page
• Copyright Page
• Dedication
• Table of Contents
• Acknowledgements
• 1 Introduction: the state of culture
• 2 American intellectual property hegemony
• 3 Intellectual property piracy and the national security threat
• 4 Intellectual property and the state: the territories of national culture
• 5 Exporting authenticity and the hybridity of culture
• 6 Critical copyright, cultural flows, traditional knowledge, and the future
• 7 Mass culture and the culture of the masses: a manifesto for user-generated rights
• 8 Skipping through the desert of the real: copyright landscapes and the future of creativity
• Bibliography
• Index