|Collaborative Literary Creation and Control: A Socio-Historic, Technological and Legal Analysis|
At the core of my analysis is the law. In part, the law is useful because it is more explicit than social constructions of authorship; I have on my bookshelf a printed copy of Title 17, the text of United States Copyright law. With this type of explicit codification, connecting effect to cause is often easier than when both effect and cause are debatable. In this way, the law provides a more "real" target for critique. Additionally, the law is useful because it is more accessible to most readers than computer code. Proprietary computer code, like Microsoft Windows, is completely inaccessible and utterly unmalleable—even for those with the technical ability to understand the code or make changes. The law is useful because it is, at least in theory, a dynamic and flexible entity. Critique and challenge, when advanced consistently, intelligently, and over a long period of time, can prompt meaningful changes in legal systems and their effects. Finally, the law is useful because it has special force. As Siva Vaidhyanathan says in Copyright and Copywrongs:
Conceptions of authorship can be overcome and technology can be altered without serious negative repercussions in a way that the law cannot. The repercussions of breaking a law have a very different effect.
A seventeen-year-old mixing rap music in her garage does not care whether the romantic author is dead or alive. She cares whether she is going to get sued if she borrows a three-second string of a long-forgotten disco song ([Vaidhyanathan2001] 21).
As the codification of individualized control in regards to collaborative writing, the law, reflected and embodied in contemporary copyright, sits at the center of my argument. The following is a critique of contemporary copyright that, like the preceding chapters, argues for a system of control more supportive of collaborative writing processes. While incomplete without similar shifts in systems of both social and technological control, copyright provides a excellent place to end this analysis—and to begin real change.
As described in some depth in the Section called Control as Copyright in Chapter 1, copyright is the legal grant of monopoly control over a particular expression of an idea. The idea behind copyright is that ideas themselves are uncopyrightable; only particular expressions of ideas can be copyrighted. Changes in technology and in social attitudes of authorship, the increasingly profitability of certain types of individualized control, and the powerful industries created as a result, have forced a constant reevaluation, reinterpretation and rearticulation of copyright.
Both the historical chapter earlier and the section on twentieth-century copyright (the Section called Twenty-first Century Copyright) below demonstrate the way that legal systems of control force what become "recalcitrant" forms of collaborative writing to articulate themselves in awkward and ineffective ways. The section on technology continues this discussion by demonstrating the way that control is articulated in modern CSCW technology. While computer technology allows writers to define the writing process in technical and material terms, the case studies in the preceding technical analysis reveal the way that many designers are bound by the socio-legal models of collaborative literary thought.
Legal conceptions of authorship are highly connected to these social and technical contexts described in detail in the preceding chapters. While CSCW software has succeeded in manipulating the social attitudes around collaborative writing by changing the terms on which people communicate, law is not so fluid. Every piece of writing, collaborative or not, written with any piece of software or by hand on a piece of paper or a napkin, is copyrightable and copyrighted. Explicitly codified, built on systems of precedent, and enforced by real civil and criminal consequences in cases of violation, copyright law is robust and powerful. However, this robustness comes at the price of dynamism and its statutory nature makes it susceptible to political and economic pressures. Copyright's legal nature makes it slow to react to changes in technology and social attitudes toward authorship; the creation of copyright itself trailed the invention of the printing press by more than a century.
As copyright continues to occupy an important position in defining and redefining authorship and control, its inability to react quickly and dynamically proves potentially dangerous. Copyright, emerging from and reflecting a particular type of technical and social shift in attitudes, seems particularly ill suited to the new world of collaborative writing. Rooted in a social attitude toward authorship and collaboration that copyright itself has helped to reinforce—a process pushed for by distribution organizations whose power and fortunes are grounded in the control granted by copyright—copyright is being pushed in directions that are hostile to collaboration.
The two centuries of American copyright have seen copyright enlarge in purview, widen in reach, increase in power, double in duration, and expand in enforceability. This pattern accelerated dramatically during second half of the Twentieth Century as copyright was extended eleven times in forty years ([Lessig2002] 2). Most recently, American copyright was revamped in 1998 with the passage of the "Sonny Bono Copyright Term Extension Act," or CTEA.
As a result, copyright in the United States lasts longer than ever before. Currently, works by living authors will not expire until 70 years after the death of their author or 95 years in the case of creative works works made for hire (see the Section called The Works Made for Hire Doctrine for a more in depth analysis and description). Patterned after a similar extension in 1976 and a series of preceding extensions, the latest increase was applied both pro- and retroactively. As a result, no copyrighted works have expired into the public domain for twenty years and no copyrighted works will do so for another two decades. Writers' access to borrow freely from their contemporaries and predecessors has been crippled as the public domain has been reduced from a dynamic entity into a fixed and increasingly antiquated entity.
Copyright applies to a wider group of works than it ever has before. In addition to photographs, advertising and motion pictures, copyright's scope has been extended by courts and congress to encompass the broadly defined areas of literary works, musical works, including any accompanying words, dramatic works, including any accompanying music, pantomimes and choreographic work, pictorial, graphic, and sculptural works, motion pictures and other audiovisual works, sound recordings and architectural works—so broadly interpreted that computer code and databases count as literary works and something as vague as "look and feel," qualifies as audiovisual [USCO2000].
Copyright means increasingly more as exceptions and stipulations playing an essential mediating role in the facilitation of collaborative production have been scaled back or deemphasized in court. These include fair use, the idea/expression dichotomy, and the first sale doctrine. Each have been limited or interpreted in ways that shift power into the hands of copyright holders and legal mechanisms outside of Title 17 like the DMCA [DigitalSpeech2003]. While the DMCA blocks consumers from exercising their fair use rights in ways that might circumvent copyright protection schemes, fair use itself has come under siege as courts have taken an increasingly conservative approach to borrowing and parody in a number of recent high profile cases. The idea/expression dichotomy made famous in Baker v. Selden and Stowe v. Thomas has been eroded in common law. This process has been accelerated by new technologies that confuse the distinction between ideas and expression. Where does one draw the line between the idea of a piece of computer software and its expression ([Rothnie1998])? Especially when confronted with new information technologies, courts continue to justify the enlargement of copyright in terms of this dichotomy while other decisions, especially in regards to "look and feel" reflect the merging of the two concepts. Finally, the first sale doctrine has been rolled back through technical and legal methods. Digital Rights Management (DRM) technology have played a major role in limiting consumers rights to manipulate data they possess. DRM has been flanked by legal actions, especially in regards to computer programs; in 1990, Congress amended the copyright act to prohibit commercial lending of computer software and to effectively end non-profit and library based distribution.
Additionally, American copyright is becoming increasingly internationalized. The World Intellectual Property Organization (WIPO) has been a major player in this effort. Membership to the World Trade Organization (WTO) is predicated on agreement with the Trade Related aspects of Intellectual Property rightS (TRIPS) agreement which standardizes, and in most cases extends, the reach of copyright. Proponents of the Sonny Bono CTEA claimed harmonization with European copyright as their highest goal—copyright law in Continental Europe has a different history and form from U.S. and British copyright (i.e., there is no concept of fair use and authors have so called "moral rights" to their works) and the terms lasted significantly longer than U.S. copyright terms. In most cases, law has harmonized by giving the most control to copyright holders, leveling the field at the higher common denominator of control.
Finally, mechanisms for enforcing copyright have gained new and unprecedented reach and power. The Digital Millennium Copyright Act (DMCA) alluded to above criminalizes the production, distribution, or assisted distribution of copyright circumvention devices. So far, criminal charges have been tied to the production and distribution of software that, among a number of potential uses, circumvents copyright protection methods to allow GNU/Linux users to play DVDs and to allow blind users to have E-Books read aloud. Technology enforcing copyright blocks utilization clearly within the scope of fair use and the DMCA uses the very real threat of legal action to block methods that sidestep these technological barriers.
This enormous growth in the scope and power of copyright has been fueled by the increasing amount of copyrighted data being produced, the increasing profitability of copyrighted data, and the resulting increase in the power of copyright holders. As new systems of mass distribution allow the quick transmission of a text, movie, image or piece of software to millions, technology and law have responded by making enforcement in unprecedented way and on unprecedented levels a reality. Groups of copyright holders, most famously represented by the Recording Industry Association of America (RIAA) and the Motion Picture Association of American (MPAA) are represented by powerful lobbies in Congress whose influence and success is increasingly evident in increasingly restrictive copyright laws.
These laws are demonstrably counterproductive to borrowing, sharing, collaborative writing and the general concept of collaborative creativity. The National Writers Union, the American Library Association and fourteen other library associates, and a large group of writers, lawyers, economists, and non-profit, professional, corporate and educational organizations and associations have explicitly spoken out against the increasingly broad scope of copyright ([Balkin2002], [Moglen2002], [Jaszi2002], [Lutzker2002], [Englert2002]). These groups are in agreement on contemporary copyright's inability to serve the American people through adherence to the Constitutional mandate allowing for the promotion of "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." Extended repeated and retroactively, the public is not served, the arts are not progressing, and the times are not limited. This message was clearly delivered to the government by Lawrence Lessig and amici in Eldred v. Ashcroft argued in front of the Supreme Court on October 9, 2002. In January of the following year, the court released a 7-2 decision upholding the constitutionality of the CTEA. The court agreed that Congress's repeated extensions of copyright were both objectionable and unlikely to help promote the production of more works. However, they agreed with the state's claims that as long as copyrights term could reasonably be defined as limited, as they felt it could, the nature and duration of copyright was ultimately the subject of Congress's judgment. The legal situation seems unlikely to change.
The Digital Millennium Copyright Act, which will be covered in more detail in the Section called Twenty-first Century Copyright, may be changing this by criminalizing certain types of technical modifications that can be used to circumvent technological copyright protection schemes. This complicates but reinforces claims about the special potency of the law.
As dynamic social and technological systems have muddied distinction between ideas and expressions, lawmakers have been forced to constantly reinterpret this division. They have increasingly interpreted this division in ways that are supportive of the extension of rights to copyright holders.
Photographs entered the domain of copyright as a result of the important Supreme Court decision in Burrow-Giles Lithographic Company v. Sarony. While it seems clear today that the author and owner of the intellectual rights to a particular photograph belongs with its photographer, the numerous creative roles that can might involved in the production of a a photograph (e.g., models and photograph developers, just to name two) made the definition of the photographer as the sole author more complicated and controversial that it may appear today.
In Bleinstein v. Donaldson Lithographic Companym primarily non-artistic works (circus posters in Bleinstein) were marked as copyrightable.
The often controversial copyrightability of "look and feel" in regards to a particular piece of software is documented by Jack Russo and Jamie Nafziger and is highlighted in cases that most notably include Whelan Associates, Inc. v. Jaslow Dental Laboratory and a handful of related Apple v. Microsoft cases ([Russo1993]).
Hollywood alone is worth more than fifty billion dollars ([MIT2002]).