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Copyright Extremism
Copyright has gone from a 14-year term to extending many decades beyond death. The stated goal of those who have achieved this feat is a copyright that never expires. Could there possibly be a more extremist view of copyright than this? As independent filmmakers, don't we need to do something about it?

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by Brian Flemming

It wasn't always this way. The U.S.  Founding Fathers were skeptical of copyright. Benjamin Franklin, for example didn't want any copyright or patent protection laws at all, and he was an author and inventor. Eventually those who drafted the Constitution, moderate men that they were, crafted a balance -- copyright for 14 years, renewable once, then the work belonged to the people. Their goal was to create an incentive for people to produce, but not rob the country of a useful public domain. It was a quid pro quo: The government gives creators something (monopoly protection backed by law enforcement), and the creators give the people something (their original contribution after the monopoly term is over).

Virtually every movie released is proprietary software--your use is extremely limited. You can go to jail for even trying to play a DVD you own in an unapproved player. You cant copy it, and you cant take it apart and re-work it in your own way to create derivative works. This is generally viewed as a normal state of affairs. In fact, just as in the days before Free Software proved itself viable, conventional wisdom with regard to films now holds that any alternative to absolute control by the copyright owner is something akin to insanity. Copyright control is considered a bedrock assumption, like the law of gravity.

But control, especially extreme control, inhibits creativity. While artists have built on the works of others throughout all recorded history, today you are virtually locked out of the cultural marketplace if your desire is to substantively respond to or repurpose someone elses cultural statement. If you want to tell the story of Gone with the Wind from the slaves point of view, God help you, because youll need an army of lawyers and spend years of your life in court battles. Want to build on a movie that was released in theaters last Friday? No problem—just wait 95 years. The odds are pretty slim, but maybe you wont be dead by then. (Actually the odds are that Congress will have extended copyright several times by then, as the stated goal of its patrons is a term that lasts "forever minus a day." In all likelihood, you won't live long enough to use any work in our culture without permission from the owner.)

Copyright holders of films possess even more monopoly control than owners of proprietary software. Their works are largely untouchable.

It didnt used to be this way. In the past 40 years, copyright laws, passed by legislators who are rewarded financially by media corporations such as Disney and AOL-Time-Warner, have inflated copyright monopoly terms to levels unimaginable to the Founding Fathers, who believed that a copyright term should last only for a duration necessary to create an incentive for artists and inventors—after that, the cultural contribution would belong to everyone. This radical, recent change in the use of copyright laws poses a long-term problem for filmmakers who may wish to comment on culture by using culture, especially as we head into a future filled with digital tools that make such a process accessible to anyone.

What good are these tools if we can't use them?
This is sort of a personal FAQ, based on the questions that I routinely get, and responses I routinely give, in email and in person when Free Cinema Rule 2 comes up. It just didn't feel right answering some of these questions in the official voice of Free Cinema. Many of the answers, I must acknowledge, come from the work of Lawrence Lessig.  
--Brian Flemming

Q: As writer and filmmaker, shouldn't you of all people be a staunch supporter of copyright protection, rather than an enemy?

I'm not an enemy of copyright, and I have the credentials to prove it.  I'm a member of the Writer's Guild of America, which has as one of its priorities the collection of royalties due to authors of screenplays.  I'm also a member of ASCAP, whose entire reason for existence is the collection of royalties. And a play I co-wrote, Bat Boy, is published by Dramatists Play Service, another organization that collects royalties for authors. Most of my income every year, such as it is, comes from licensing the copyrights to my creative work. By the conventional wisdom, this fact should scare me into supporting monopoly extremism when it comes to copyright law. But after I started looking into the matter seriously, I discovered that the conventional wisdom is just a conditioned response that isn't based on the facts. I'm certain that my financial condition would be just as healthy and my art would in fact be far more diverse and creative if there were a rich public domain.  

First off, it's based on the wrong principle. It's based on the principle that art and inventions come into existence solely for the financial benefit of the creator. That's only one benefit society should be interested in. There's no reason that society has to give a creator lifetime authority over his or her contribution to our culture. It's our culture.
Not at all. I'm an artist, and I want to make money. But in the big picture, copyright extremism isn't necessarily good for the individual artist, despite how it may look at first glance. Saying that an artist should, out of self-interest, be reflexively for copyright extremism is like saying, for example, that a local retail business should be against a proposed freeway system. Looked at from a narrow perspective, the proposed freeway would seem to be a threat to the local shop owner -- the local customers can use the freeway to go to a competing business if they want to. At the very least, the store owner should work hard to control the local onramp -- to charge a fee for its use to offset the damage to local business.

But of course, if you step back a little, you see how that narrow, seemingly self-interested view doesn't make sense. The freeway -- a public domain resource -- is valuable for the store owner as well as everyone else. It opens up new possibilities for everyone, even if the store owner loses some control over the local market. The store owner might have to compete harder, but that freeway, as a source of new supply, will help her to do that -- now she does not have to depend on another monopoly, probably the railroad in this example, as a supply line. She can choose from all the trucking companies that use the freeways. 

The parallels in this example to the situation artists face today are pretty close. Most think that copyright extremism is good for them, but if they took a step back, the way that the Open Source and Free Software movements have in the software field, I think they would see that copyright moderation makes a whole lot more sense for the independent artist.

Copyright extremism is where we are today, although most people don't realize that. The continuum runs from no copyright at one end, meaning nobody has any monopoly right at all to their original creative work, and at the other end is an iron-clad Monopoly for Life. We're actually at a greater extreme than that right now. You not only get a monopoly for life, you get it 75 years after your death. That's extremism beyond extremism. 

It wasn't always this way. The U.S.  Founding Fathers were skeptical of copyright. Benjamin Franklin, for example didn't want any copyright or patent protection laws at all, and he was an author and inventor. Eventually those who drafted the Constitution, moderate men that they were, crafted a balance -- copyright for 14 years, renewable once, then the work belonged to the people. Their goal was to create an incentive for people to produce, but not rob the country of a useful public domain. It was a quid pro quo: The government gives creators something (monopoly protection backed by law enforcement), and the creators give the people something (their original contribution after the monopoly term is over).

Today, our paid-for Congress sees only the quid in this quid pro quo. They've turned that 14 years into a Monopoly for Two Lifetimes. This is very good for an established corporation like Disney, which can sit on its ass and continue to exploit Mickey Mouse forever, but it's not good for individual artists. Congress is essentially granting a perpetual copyright now (95 years at present, but likely to be extended the next time Mickey Mouse is about to fall into the public domain, if history is any indication), and that means that nobody will ever get to use today's cultural work in the way that artists--such as Walt Disney--have always used the public domain throughout history. I call this extremism because that's what it is. I can't imagine a more extreme proposal than a perpetual copyright.

Q:  You're lecturing me. 

Yeah, I know. I'm sorry. That's a key problem in this issue. Artists generally like to create art -- most are not naturally inclined to study obscure Constitutional issues. I don't blame them. But I've generally found that artists fall into two categories: Those who are hopping mad about copyright extremism, and those who haven't studied the issue. I'm not trying to say anyone who doesn't agree with me is an ignoramus. I just haven't yet encountered any artist who has, say, read Lessig's book The Future of Ideas and not come away with at least a creepy feeling about present copyright law.

But the issue is complex, and it does take some serious exploration to understand. The Motion Picture Association of America and the Recording Industry Association of America, two of the most powerful advocates of copyright extremism, have an advantage in this particular area. Not only do they have access to the media (they are the media) but also their arguments work better in a sound-bite setting. For example, both Jack Valenti (chairman, MPAA) and Hilary Rosen (chairman, RIAA) have said of their arch-rival Lawrence Lessig, in substance, "If he believed in his own arguments, he wouldn't sell his books -- he'd offer them for free." Valenti and Rosen know that this sound bite is a gross misrepresentation of Lessig's views -- they know that in fact he proposes a 5-year renewable copyright -- but boy does that little quip work on TV. It's brilliantly deceptive. Instantly, the viewing audience that is unfamiliar with the facts sees Lessig as the extremist (and a hypocrite) and the industry groups as moderates simply trying to protect their industry from crazy ideas. 

Only a deeper look at the issues can cut through this sound-bite deception and reveal who really is the extremist in this controversy. (Note that Valenti and Rosen can only imagine extremes: Either you are for their extreme version of copyright monopoly, or you are for the abolition of copyright. They refuse to acknowledge that a moderate position could exist.) So that's why Free Cinema information sometimes seems like a lecture -- the issue is a shade more complex than the media generally allow for, so many filmmakers who wander in here are being exposed to these facts for the first time.

Not really. It's just an institutional bias. The established players are the only ones who benefit by holding back our culture. They are inherently conservative, which is to say fearful of change. Naturally, the major media outlets absorb this mentality, if only by default. The evidence is legion.  The media refer even to people who simply share files over peer-to-peer networks as "pirates." They implicitly compare my sharing a song with you, for zero profit, with the violent siege of a ship, murder of its crew, and plundering of its cargo. They do this with one word, and I don't think reporters even notice that they're doing it. I know that use of the term has been around for a very long time, but who do you think came up with the idea to use the same word for both a rapist and a copyist? There's nobody in the chain leading from the creation of news to its delivery to you who is motivated to notice this bias, let alone care about it.

More seriously, though, Free Cinema is not meant to replace filmmaking as we know it. Free Cinema goes really far in the opposite direction that copyright law is taking now, with the hope that attention will be paid and moderation will come to copyright law as a result. 

Moderation would mean something like, say, the Lessig-proposed 5-year renewable copyright (renewable once for corporations, until death for you and me). In your above example, of course that blockbuster would be made under this reasonable copyright plan. The studio would have 10 years to profit from their film -- that's about the maximum time that any corporation projects when evaluating an investment like this. No studio is going to say, "No, we won't make Titanic because by our projections it wouldn't be profitable until the eleventh year." Movies and novels and plays just aren't like that -- they make most of their money relatively soon after their release, so anything beyond that is not acting as an incentive, which was the original purpose of copyright. 

Yes, movies do make money for their copyright holders 60 years later. But selling videos in 2003 is not what motivated Warner Bros. to produce Casablanca in 1942. Selling tickets in 1942-43 was ample motivation. (Would you like to show everyone your modern hip-hop remix of Casablanca? In order to make it, you likely violated the Digital Millenium Copyright Act, and you could end up in jail. Coming up next: Use iMovie, Go To Prison.)

It's absurd to suggest that movie studios need 95 years of monopoly control over their creations in order to be motivated to finance their movies. Ten years would be more than enough. And, for the sake of argument, anything that wouldn't be created because of the 10-year monopoly limit? Well, we lose that particular work, and in exchange we get an incredibly rich public domain, the likes of which you and I have never seen. I'll take that trade-off in a heartbeat.


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Want to cut out the boobies and swearing that litter Hollywood films? Get yourself an attorney, Mr. Clean.

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