Students in all of my fall courses–Intro to Law, Internet Law, and Privacy Law–have expressed alarm about SOPA. They ask where it came from, who is pushing for it, why it has gotten so much congressional support. The long answer involves copyright owners, actors, musicians, concern over the effect of copyright piracy on U.S. jobs, consumer tolerance or support of file-sharing, the public debate about Free Culture versus the legal protections of copyright law. The short answer involves elections and money, specifically the corrosive effect of campaign contributions on the political process–which drew Larry Lessig’s attention as he pursued his post-Free Culture intellectual path.
In the spring of 1967 Jimi Hendrix released Are You Experienced?, his first album, and The Beatles released Sgt. Pepper’s Lonely Hearts Club Band. My friend Rick bought Sgt. Pepper as soon as it was available and, incredibly excited by what he heard, called and played it for me over the telephone. I first heard “With a Little Help From My Friends”, “She’s Leaving Home,” and “A Day in the Life” on a spring afternoon while standing in my kitchen with a bakelite phone receiver pressed to my right ear. My first listening of Are You Experienced? came courtesy of another friend, who played it one Friday evening at full volume in his darkened bedroom. My hair stood on end at the opening chords of “Purple Haze.” I had never before heard music like that.
We experience music more immediately, more personally than any other form of popular culture. Movies and television required (until video-capable iPods and $1.99 episodes of Lost and The Office) that we sit and watch a screen. In my lifetime music has always been portable, first through car radios (my high-school car, a 1965 Plymouth Fury, had only AM radio which means I heard Mungo Jerry’s “In the Summertime” about 1,000 times in 1970 alone), then through the Sony Walkman and its progeny, which led to today’s ubiquitous MP3 players. Technology has allowed us to accompany our lives with a personal soundtrack. We all have music that is ours. 1967 was also the year of The Graduate, “plastics,” and the birth of Dustin Hoffman’s career. I recall Dick Cavett asking Hoffman whether sudden fame had changed his life. Hoffman replied “It’s not like Mrs. Robinson plays when I go to the bathroom in the morning.” These days we can all have Mrs. Robinson–the Simon and Garfunkel original or the Lemonhead’s version–playing when we go to the bathroom in the morning.*
I’m thinking about this because of recent exposure to the inevitable boomer-retrospective articles and radio shows about the Summer of Love and the juxtaposition of two articles: Jason Fry’s “The Perils of Online Song Lyrics” in the 5/21 Wall Street Journal (subtitled “Yahoo’s New Lyrics Service Is Promising,But Why Can’t I Copy and Paste the Words?”) and Mark Helprin’s “A Great Idea Lives Forever. Shouldn’t Its Copyright?,” an op-ed piece in the 5/20 New York Times. Helprin argues that copyright law should protect creative works to the same extent that law generally protects rights in personal and real property. Congress can, Helprin asserts, circumvent (my word, not his) the Constitutional provision authorizing Congress to extend a monopoly to authors “for limited times,” by vitiating the meaning of “for limited times:” “Congress is free to extend at will the term of copyright. It last did so in 1998, and should do so again, as far as it can throw.” Helprin is a far-more skilled and practiced polemicist than me, but to my simple mind this expression of his argument falls off the rails before it leaves the station. In its entirety Article I, Section 8, Clause 8 of the Constitution gives Congress the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive right to their respective Writings and Discoveries.” Congress’s power to enact copyright law must serve the purpose of promoting the progress of useful arts. This argument (in Eldred v Ashcroft) failed to convince the Supreme Court to overturn the Sonny Bono Copyright Term Extension Act, which extended the term to the life of the author plus 70 years, but the Eldred decision does not support the position that Congress can extend the term of copyright at will. Larry Lessig is articulating a more complete and scholarly refutation of Helprin’s argument.
The article about the Yahoo lyrics site explores the confluence of our appropriation of popular music for personal expression and the “propertization” of copyright. As Fry states “[s]ong lyrics are one of those things the Internet might have been made for . . .” Most of use have searched for song lyrics. The Archive of Misheard Lyrics at www.kissthisguy.com is a favorite site. Song lyrics are part of our aural wallpaper, a cultural touchstone, a form of shorthand, titles for the chapters of our lives (I’m in one titled “well . . . how did I get here?“), the raw material for wedding vows, and memory triggers. We hear a phrase in conversation that reminds us of a lyric that transports us to the time in our life associated with that song. (If reading that made you think of Patrick Swayze and Jennifer Grey, good.) Song lyrics are all that but, at the request of copyright holders, you can’t copy and paste lyrics from Yahoo!’s lyric site. According to Nicholas Firth, Chairman and CEO of BMG Music, Inc., a copied lyric is a lost sale–an idiotic comment that ignores the reality in which most of us live. If the choice is between paying a licensing fee to copy a lyric into a blog post and going without I’ll go without. Most people would say the same, even people old enough to remember Mungo Jerry’s “In the Summertime” who did not grow up with file-sharing. I won’t pay the copyright holder a trespassing fee to walk in my own memories.
* It must have been kismet that caused iTunes shuffle to play the S&G version of Mrs. Robinson as I was writing this paragraph.
PS: A student sent me the link to this video a few days ago. Titled “A Fair(y) Use Tale” it summarizes principles of copyright law using clips from Disney animations. Cute, obsessive, and worth a look, if just to wonder: how long did it take to put this together?
One theme in my Internet law class is the rise of the “bordered” web, the increasing influence of national governments over Internet architecture and online activity within their borders. I have assigned two excellent recent books that develop this theme, Who Controls the Internet? by Jack Goldsmith and Tim Wu and Larry Lessig’s Code V2.0. Code V2.0 is both new and old, being an update of Lessig’s 1999 Code and Other Laws of Cyberspace, a book I’ve used since my first Internet law class in 2001. The original Code‘s insight that “left to itself, cyberspace will become a perfect tool of control” was a brilliantly prescient cold shower for utopians who believed the Internet would free humankind from the constraints of government. Its core insights remained vital but some parts of Code had become dated. I considered removing it from the required reading and relaying Lessig’s concepts through lectures until he published Code V2.0, which restates his themes for the cyberspace of today, and the next five years.
That is background for this very brief post, based on an article from the Korea Times. To curtail “rampant crimes in cyberspace conducted by anonymous attackers” the South Korean National Assembly passed a law in December that, come July, will require South Korean Internet users who “make online postings at local Web sites where more than 100,000 visit a day” to identify themselves with their real names. Internet sites that do not comply are subject to a fine of up to 30 million won ($32,014 at today’s exchange rate.) This law has provoked complaints that such data collection by web sites increases the risk of its misuse violates constitutional rights to free speech.
This is the bordered web at work: a national government indirectly regulating individual conduct (lawless anonymous posters) by passing a law directly regulating intermediaries (Internet portals).