legislation

When we came across an old Remington Typewriter in a small curiosity shop in Manchester Vermont (founded 1761), the 12-year old looked at it with great curiosity and asked how it worked. He knew it was a writer’s tool but he was unable to figure out how text was produced.

So I explained how to load it with paper, pointed to the ribbon and explained that simply touching the keys would do very little – this was a classic machine where every key needed to be thumped hard to produce an imprint on the paper. The shopkeeper and the other customers (being older) all smiled at the idea that something so simple needed to be explained.

Naturally, everything imaginable has already been done on the Internet, so if you want to get an idea of what this conversation was like, check out the Typewriter episode of the adorable “Kids React to Technology” series:

One of my favorite quotes is that the machine “…types and prints at the same time”. Many of the kids seem to enjoy the tactile nature of typing but they all agree it’s too complicated.

Reminiscing about the typewriter is not only nostalgia. Understanding the technology of the past is vital to understanding the regulations and culture of the present. Take for example something simple like

Ctrl X – Ctrl V

Which, as most people know, are the keyboard shortcuts on a computer for cut and paste. But how many know the reason for cut and paste is that in the analogue world moving section a section of text could literally involve a pair of scissors and some glue. You cut it out and pasted it into the right place.

This is easy enough but it gets even more complex when we talk about law (or culture, but I am limiting this to law). For the longest time, copyright law did not really need to address private copying because the process of copying involved hours of labor and low-quality final output. Physical reality acted as a barrier to the action and therefore legislation was unnecessary. We have no regulation prohibiting people from passing through walls – the very nature of walls makes it unnecessary.

The problem arises when we live through a period of rapid technological change. The law is, and always will be, a slow mover. Most legislators grew up in worlds where typewriters did not need to be explained. Their understanding of the physical realities of copying were created in an analogue reality.

As Douglas Adams writes in Salmon of Doubt:

“I’ve come up with a set of rules that describe our reactions to technologies:
1. Anything that is in the world when you’re born is normal and ordinary and is just a natural part of the way the world works.
2. Anything that’s invented between when you’re fifteen and thirty-five is new and exciting and revolutionary and you can probably get a career in it.
3. Anything invented after you’re thirty-five is against the natural order of things.”

So what does this mean? Picture a legislator: they are often (unfortunately) older, wealthy men. For our example, picture Lex, a 60-year old legislator. Lex was born in 1954, he was fifteen in 1969, and hit 35 in 1989.

Technology invented prior to 1969 is perfectly natural: Obviously the typewriter, the radio and television were all natural. Email had been invented but most people were more likely to get a telegram than understand what an email was. The hottest new device – in this area – was the fax machine. Mobile telephones were invented but it was highly unlikely that anyone would ever hold one.

The development of technology between 1969 and 1989 was astounding – this era began with the first manned mission to land on the Moon: one small step and all that. But still Lex would be slowing down in his appreciation of technology; he would be able to use the VCR and he may even have considered buying the bulky Macintosh portable introduced in 1989…but the Internet, smartphones, mobile devices and most things we now take for granted in communications were not even in his imagination. Few people in 1989 thought landlines would be disappearing.

Just because Lex is old doesn’t mean he cannot be innovative. However, the lens through which he interprets the world is formed by a set of technological tools that have, for the most part, been replaced completely or been upgraded beyond recognition.

When Lex talks about copyright, he uses the vocabulary of this era but often his mindset is interpreting the words through the lens of his established technological world. To make matters worse, he is probably interpreting a set of laws that were created in the 1970s by men whose technology visions were set in the thirties. Naturally all these laws have been updated and modernized – but their fundamental nature remains anachronistic.

So the next time you are puzzled by copyright law remember that it wasn’t built for your iPad…it was built by people who never even dreamed of iPads.

This post first appeared on Commons Machinery.

The setting for my lecture yesterday was the venerable SERI and the event was the annual “birthday” lecture: It was 41 years ago that the first seminar on law and computers was held in Oslo and this event launched what is today SERI.

The title of my lecture was Copyright – One size fits all? Unpacking Sophocles. The goal was to demonstrate that by bending and twisting copyright to fit new technologies and expressions we will eventually “break” copyright.

Copyright: One Size Fits All?

View more presentations from Mathias Klang

The lecture began with a brief introduction to cultural relativism and presented a quote from Franz Boas

“…civilization is not something absolute, but … is relative, and … our ideas and conceptions are true only so far as our civilization goes.”

Franz Boas 1887 “Museums of Ethnology and their classification” Science 9: 589

To visualize this I showed a clip of Siberian/Thuvan throat singing and explained that while we lack the tools for judging the quality of this singing this was an example of Siberian/Thuvan singing and it is a genre quite different from other forms of throat singing.

The same applies to the concepts of right and wrong but we are so embedded in our values that we are, at times, unable to see what is right or wrong.

In addition to this we must, especially in the world of copyright, pay attention to technology. And in particular to the fact that technology is not neutral and comes with particular affordances (i.e. limitations and/or possibilities).

I showed the audience the image of the tube bench and asked if they saw the ethical problem.

image from Yumiko Hayakawa essay Public Benches Turn ‘Anti-Homeless’ (also recommend Design with Intent)

This is an excellent example of regulation without rules. There are no signs explaining how to use the bench, there is no need to patrol the park to ensure misuse. In fact you could argue that this bench is equally inviting to all. But this bench is unfair in its equality. If you do not fit in you are not welcome. A homeless person cannot sleep on the bench. Without specific – and unpleasant – rules we regulate “correct” behavior in this park.

Now if you mix technology and cultural production we get a heady mix. But skipping head we touched down just briefly in 1631 with an example of the dangers of technology (printing). The example was the Wicked Bible.

This bible was a reprint of the King James bible but contained a serious typo in Exodus 20:14, where the Seventh Commandment reads, “Thou shalt commit adultery.” The printers were fined 300 pounds and their printers’ license was revoked. Today there are only 11 copies of the original 1,000.

It was not the event with the bible that created a need for copyright but there was a concern with the power of the printers and a recognition that society needed more cultural works. So in 1710 the Statute of Anne was enacted with the purpose of:

Wheras printers, booksellers, and other persons, have of late frequently taken the liberty of printing… books, and other writings, without the consent of the authors… to their very great detriment, and too often to the ruin of them and their families: For preventing therefore such practices for the future, and for the encouragement of learned men to compose and write useful books…

The first copyright act was not about culture it was about science. It was for the production of useful books.

But this was too good to last. The gift of monopoly was going to be used in more and more places and ways. Copyright expanded from useful books to other forms of cultural writing. The length of time the monopoly lasted was increased. Copyright was made international via conventions. And most problematic it was tweaked to suit new forms of technological expression.

For the latter I told story of Napoleon Sarony and Oscar Wilde and the case of Burrow-Giles Lithographic Co. v. Sarony where the US supreme court explained that photographs were equal to text and deserved protection under copyright.

Copyright became a natural part of our thinking. It became hegemonic and natural – we could not image a world without it.

At about the same time we began to embark on the social century. Everywhere common folks were demanding to be part of – and have a say in – life. In politics, in the workplace, in economics, in the schools… the people demanded their “right” to be part of the decision making process.

Aided by technology ordinary people entered the realm of professionals. Kodak nr 1 was released in 1888. It was the first mass-produced cheap easy to use camera. It was portable and had a short exposure. What this all meant was that Kodakers (amateur photographers, see “’Kodakers Lying in Wait’: Amateur Photography and the Right to Privacy in New York, 1885-1915”, American Quarterly, Vol 43, No 1 March 1991)

The problem was that even with the development of cheap recording devices for sound and vision – transmitting these to others was remained in the hands of larger organizations.

But technology was changing this too. With digitalization the expense of copying all but vanished, with connectivity the possibility of communicating to a wider audience became possible for “everyone”. With new digital devices we began to change our behavioral patterns. Here I exemplified with MP3 players that can contain so much music that choice is not an issue. It is interesting that we praise the selling of devices that almost cannot be used legally. What message does an iPod that has 160gb of storage (that’s 40 000 songs according to apple) send? (1) please go buy some music or, (2) download the internet here.

The final major change was storage. Storage is both similar to the iPod example and different to it. Storage means no longer having to decide what to remove. Storage today means that the only problems we have are how to organize our information so that it can be retrieved later. And what about letting people forget? Forgetting is a social necessity and is quickly becoming a scarce commodity (Mayer-Schönberger has written a fascinating book on the subject “Delete: The Virtue of Forgetting in the Digital Age”).

These changes pushed the social century into the next phase: the social decade. All the points made earlier come together. The theoretically possible becomes the inevitable.

At this point it is a clash of norms mainly in the form of an end of passive consumption. But what does it all mean? To ease into this stage I took the help of Douglas Adams and his amazing quote from The Salmon of Doubt (2002)

Anything that is in the world when you’re born is normal and ordinary and is just a natural part of the way the world works. Anything that’s invented between when you’re fifteen and thirty-five is new and exciting and revolutionary and you can probably get a career in it. Anything invented after you’re thirty-five is against the natural order of things.

With this quote I wanted to point out that the Swedish Copyright Act was enacted in 1960. The group of people who thought long and hard about its content, form and scope were probably around 50 years old. The technological acceptance level (i.e. what is a normal use of technology) was developed before they were 35 so this means around 1945. Think about it – what level of technology was dominant in 1945?

It is not unfair to say that this group had no chance to enact legislation capable of suiting our technological reality today.

At this point in the lecture I wanted to bring in law and morality in relation to copyright so I drew a simple taxonomy

As an example of Homage I showed clips from the Odessa Steps scene in The Battleship Potemkin (Sergei M. Eisenstein, 1925) and the station steps scene in The Untouchables (Brian De Palma, 1987). This is acceptable and praiseworthy. The artist building on the past, Eisenstein’s opinion does not matter.

In Cross Culture I showed a clip from the Kill Bill (Tarantino, 2003 & 2004) trailer and argued that we take offence when someone in Asia copies a dvd but profiteering from another’s culture is art. (Laikwan Pang: “Copying Kill Bill”, Social Text 83, Vol. 23, No. 2, Summer 2005.)

In the remix corner I showed an Anime Music Video (AMV) combining ABBA and Anime cartoons called FMA AMV Gimme a Man After Midnight – Abba

Here is a form of cultural creation building on the past re-using and copying. It is unfortunate that this is not supported by law. The AMV practice is huge with groups and subgenres in the same way as Siberian Throat singing. It is culture, it is an entry point for artists and it is a legitimate form of artistic expression. (Check out The rewards of non–commercial production: Distinctions and status in the anime music video scene by Mizuko Ito. First Monday, Volume 15, Number 5 – 3 May 2010)

For pure downloading I did not show any clip. What I meant was of course illegally downloading copyrighted material. While I understand the desire… it is simply a parasitic behavior.

Now the problem is that when our technology makes it easier and easier to break the law there are cries from those who are invested in the current system and who profit well from it who cry that something must be done. Unfortunately you cannot put the technological genie back in the bottle. And this is not what they want. They want all the advantages of technology – but they don’t want it to change everyone’s behavior and negatively impact their business models. They want to have their (and our) cake and eat it. So they call upon the law to create artificial barriers.

In doing so they further twist and stretch copyright to the boundary of imagination.

The copyright industry/lobby (incredibly bad term so I ask you to understand me) also attempt to explain their actions to us – the consumers. This is done to lobby themselves into a better political position. Unfortunately this group seems to have forgotten themselves and the world in which they live.

The message they send is very top down. It comes, as if we were still living in the radio age, like mass media from one to many. To explain what I mean I showed the anti-piracy advertisement Piracy – it’s a crime

The problem with this advert is that is filled with the most bizarre and bad arguments. In attempting to portray illegal downloads as wrong they say things like: you wouldn’t steal a car.

Naturally today we no longer live in the top-down world. We the people no longer respect… We respond. One such response makes a joke out of the Piracy – it’s a crime advert. I showed a clip from The IT Crowd – Series 2 – Episode 3: Piracy warning parody

OK so what should we do?

Now the pirates (how’s that for another hugely vague and silly term) or anti-copyrighters may say “The first thing we do, let’s kill all the lawyers” Shakespeare Henry VI (Part 2) Act 4, scene 2 but that may be going a bit too far.

Lawyers need to adapt in two main ways. (1) We need to be better a arguing and legitimizing and (2) we need to change the law.

First off we need to accept polycentric regulation. In Antigone the playwright Sophocles argued that if the law went against morals (natural law) then you could act in accordance with natural law. This gave a nice choice between following one or the other depending on the way you feel about a particular thing. In other words you could do what you like and find a way of legitimizing it later.

But Sophocles had it easy. Today it is not an either or situation. We are regulated and controlled by masses of factors from the law to culture to technology etc. Learning to navigate and understand this is incredibly important for any law that attempts to balance interests of several groups. But if the law fails to be relevant it is quickly going to become useless.

In the case of copyright this means abandoning the heavy-handed “one size fits all approach” in two ways. First copyright should not be used for everything and second it should not be applied in the same way on the things it is used for.

What we see today is a failure in these two areas and it is killing the usefulness of copyright.

I closed the lecture by presented a list of changes I would like to see in relation to copyright law.

Free Digitalization of cultural artifacts: There should be no additional copyright protection for simply digitalizing anything in the public domain. Also material bought and paid for by Public Service radio and tv should be released freely much earlier than today.
Limit terms of protection: Some copyrightable stuff is pointless and irrelevant as it is produced. Most is pointless and irrelevant and forgotten within five years. So 70 years after death is simply ridiculous. Sure some will suffer but today the few are supported at the cost of the many. The well known are pushing the obscure into the vacuum of the eternally forgotten.
Allow refusal of copyright: If you do not want to copyright something you should not have to! Freedom should be a default.
Allow creative use: Increased rights of fair use. Nordic law does not allow the quotation of images and video clips. This is a simple oversight which the legislators could not imagine that we would need when they enacted the law 50 years ago.
Public domain protections: There is no term for the concept public domain in Nordic languages. This means that the public domain – which is under attack everywhere – is handicapped in all discussions since there is no accepted term of reference. The default is copyright, this is not a level playing field upon which to have a discussion.
Resolve Orphan works problem: Seriously! Do it. Do it now!
Promote Multiple Creators: Copyright is built on the myth of the single author. The content creation of today is much wider. Recognize the fact that multiple creators exist and need to be supported.
Folklore & traditional knowledge: end cultural imperialism…

It was a great lecture with an interesting discussion that lasted well into the night. Thank you SERI.

Why is copyright law so weird?

Notes from a lecture: Copyright – One size fits all?

Three strikes discussed in Singapore