Sunday, January 16, 2011

The Acorn Doesn't Fall Far From the Tree

Until the 15th century, the concept of authors' rights was basically non-existent. If you came up with a great oral poem, and it was repeated, your stock could only go up. Books were a painstaking labor, and each one owed much of its value to the very act of its construction.
In the 1490's Guttenberg was a businessman who had struggled with many ideas, mostly around the reproduction of some divine essence or other, such as light from mirrors. After many attempts at fame and fortune, and many impasses, he came up with movable type. Nevermind that in China, movable type was in use as early as 1045. It is worthwhile to note that a big profit-machine for Gutenberg was the mechanical duplication of Papal indulgences. At that time, there were few challenges to the 'authenticity' of the pardons from God that he was selling. Six centuries later, digital communications make the reproduction of any given original work already present in a distributable medium really trivial.
The past few decades have seen many changes in the ability to reproduce printed or recorded material. From the very start of this revolution lawyers acting on behalf of capitalists have been at the forefront of a maelstrom of misinformation, intimidation, and repression in the interest of "protecting the profits" of their clients, while profiting themselves. At the same time, middlemen in the various publishing industries - books, sound, and video - have been gaining a larger and larger share of the revenue generated by product with a market for reproductions. An interesting corollary to this, but far outside the scope of this little diatribe, is the down-market luxury label.
The recording industry has made a joke of itself in the past 30 years with middleman-sponsored organizations that are famously inept at trying to cow the masses into compliance to preserve a profit-machine. The first outstanding example of the tomfoolery that would define this industry is the British Phonographic Industry's campaign against the rising popularity of cassette tapes: "Home-Taping is Killing Music". 30 years later, it looks like a bunch of bullshit, yet the same message is replicated incessantly by producers and distributors who have as much capital as lack of interest in seeing how grass-roots diffusion has helped popularize their product. Weasel-words like "war" applied to the American invasion of Iraq, or "piracy" applied to the sharing of books, music, or video without re-purchasing of a license, have been terribly effective in misinforming the general public about cause-and-effect, and a mainstream media driven by a profit-motive have been exceptionally compliant in spreading corporate propaganda about how this must be bad because they can't clearly see the revenue arising from these interactions, despite strong evidence that musician revenues have actually risen in the age of file-sharing.
Philosophically, the question of reproduction of ideas is a tough one, and a legal system, which operates fundamentally to preserve inequities in capital-distribution, is hardly equipped to be standard-bearing for civilization in untangling the complex question: Where do you draw the line between an idea infecting a mind from a distribution means, like a licensed book, as "intended" by the seller of the idea, and that idea being plagiarized, because a mechanical device was used in its transmission? If I quote Shakespeare in a declaration of love, I will, apparently, not get sued. So far, it is legal for me to make a copy of anything I want in my mind and reproduce it ad nausiem in other people's minds through any means I choose except literal reproduction. Curiously, this bit of law is quite ill-formed, because I can recite ideas from most any book I have read without getting in trouble, yet if I sing a song authored by someone else, from memory, I am liable for royalties. Worse yet, if I hand over a mix-tape of songs that speak my heart's desire to the object of my love, I am liable for imprisonment and a $250,000 fine. unless the mix tape is of nature sounds recorded by a chim, since the law has been interpreted to specifically not protect work created by "non-humans" What?
Derivative works open up a whole new can of worms. Why does not Andy Warhol's "Campbell's Soup Cans" owe royalties to the Campbell Soup Company? Is it just that the privilege of being a media-darling made Warhol deserving of a different standard in human rights? Chalk that one up to the inequity preserved by the system that attempts to regulate and profit from communication between you and your neighbor - the legal system. I jumped onto the tail end of the internet boom in San Francisco in 2000, only to work very hard on some beautiful ideas about context that were absorbed in the crash by Dell in the interest of figuring out how to recommend alternative laptop configurations to shoppers. The frenzy of invention was a lovely thing to behold while we tackled fascinating problems about codifying some small aspects of cognition, and developed cool ways to range result sets in purely set-theoretic ways, using predictive methods and thus avoiding a lot of enumeration inefficiencies.
Needless to say, there was a lot of coffee involved, and so, I thought it would be a nice update to that Warhol piece to do a piece called "dot-com", consisting of 40 Starbuck's cappuccino cups. It didn't take long to collect 40 photogenic used Starbucks cup. I photographed them individually, intending to silk-screen each worked image onto a small canvass so as to reproduce the Warhol piece without cheapening it. The unspeakable treachery of a bad marriage put a stop to many creative projects, and this one got swept away in the maelstrom. Nevertheless, had I done the piece, and had it, for some reason, gained some notoriety, would Starbucks have been as forgiving with an amateur like myself as Campbell's was with the juggernaut of Andy Warhol? And, more to the point, would I really have been taking advantage of their fair due in copyright by making a statement referencing their image? How does that differ substantially from an image of Christ on a cross infringing on the Catholic Church, or an image of the American flag infringing on the US Government?
There's no question that a cultural cannon is based on precisely the use of one idea to inseminate another. If it were up to the lawyers, all of literary history would be based on a cost-per-epiphany model. This absurdity was highlighted for me recently, when I started looking into the Golden Record. Back in 1977, the US launched a satellite into deep space intended to carry a message from our civilization to whoever might run across it. The satellite naturally included this magical capsule of media, containing 115 images, followed by a series of sound recordings etched on at 16 2/3 rpm. You know - a plate with a groove in it. The Golden Record is a thing of beauty on many levels, as it contains a bundling of information painstakingly selected by Carl Sagan and Ann Druyan, who fell in love with each-other in the process of putting it together. In a way, this is quite the Narcissists' mix-tape. There are speeches, images, and pieces of music up through modern times. So this record was cast adrift into the far reaches of the universe for any random unannounced civilization to find out there in the next few dozen millenia. Beautiful thought.
Naturally, reading about the glyphs on the record, and its contents, I got curious to have a listen. I looked around, and found it. Apparently Warner News Media "published" it in 1978 and re-issued it as a CD in 1992. So a private media concern is distributing it. That might be OK, except for one little thing. There is no public-domain image available on this earth of this recording. It's all Copyrighted.
So I guess that means that any sentient beings out there who decipher it, etch it in their brains, and barf out briquettes that include the contents of their memory, are liable for copyright infringement. So the millennial universal message sent into the deep reaches of space is "meet us and get sued!", and it's entrapment at that because I'm pretty sure there are no copyright symbols or FBI piracy warnings on the entire craft, let alone on the disk. On reflection, it's quite a telling message to send into outer space.


  1. This reminded me of the requerimiento, the 'legal' document the Spanish explorers used when encountering native peoples. The document -- read aloud in Spanish upon first contact -- tells the natives they must become Catholic or else (note disclaimer at the end):
    "But, if you do not do this, and maliciously make delay in it, I certify to you that, with the help of God, we shall powerfully enter into your country, and shall make war against you in all ways and manners that we can, and shall subject you to the yoke and obedience of the Church and of their Highnesses; we shall take you and your wives and your children, and shall make slaves of them, and as such shall sell and dispose of them as their Highnesses may command; and we shall take away your goods, and shall do you all the mischief and damage that we can, as to vassals who do not obey, and refuse to receive their lord, and resist and contradict him; and we protest that the deaths and losses which shall accrue from this are your fault, and not that of their Highnesses, or ours, nor of these cavaliers who come with us. And that we have said this to you and made this Requisition, we request the notary here present to give us his testimony in writing, and we ask the rest who are present that they should be witnesses of this Requisition."

  2. The funny thing is that the requerimiento has a well-defined spatial reach, specifically over the entire earth, while copyright law is a little more vague in this regard, with statutist theories asserting that the legal rule determines its reach. Just to give an example of how poorly thought through the concept is, this would mean that a space alien reproducing the record on a planet with which we have no diplomatic relations would not fall under the jurisdiction of US Copyright law, yet if this being came to visit the US, suddely they would be liable for copyright infringement. Moreover, it would be difficult to say whether this alien would be liable, because copyright law has been interpreted to exclude works authored by non-humans, but has never addressed copies made by non-humans...