If you haven’t seen the post on Waxy.org by Andy Baio about how he felt compelled to settle a case in which he was accused of copyright infringement, go read it now. It’s a great, personal tale about how copyright laws have over-reached and block artistic expression. It’s also a nice intro to the indeterminacy of fair use guidelines, especially the issue of what counts as a transformative use.
Thanks to Jessamyn West for her retweet that brought this to my attention.
I’m about a third of the way into Lewis Hyde’s latest book, Common as Air, which looks examines the idea of a “cultural commons” in America. In an early chapter, Hyde gives a thumbnail sketch of the idea of a commons as they once existed in England before the enclosures of the 18th and 19th centuries. Before most of the commons were lost to land grabs by private owners, there were a rich set of traditions and practices governing the use of the commons. One of the more interesting annual traditions was known as “beating the bounds,” which occurred around the Christian celebration of the Ascension. During the celebration, villages would march around the commons, looking for fences, hedges, and other illegal encumbrances and enclosures that had been secretly erected there; when they found such affronts to their shared space, they smashed and destroyed them.
I found myself unable to resist romanticizing the image of everyday people marching about, removing the barriers to places that were held in common. As a mark of my solidarity with efforts to promote open access to scholarly and creative commons and as an indicator of my interest in removing the technological wickets and tangles that keep our silos of licensed resources from working more in concert with one another, I am renaming this blog from “Stephen Francoeur’s Stuff” (a massively unimaginative name) to “Beating the Bounds.”
At lunchtime today, I just started reading Bound by Law? Tales from the Public Domain, a fantastic comic book by Keith Aoki, James Boyle, and Jennifer Jenkins. I haven’t finished it yet, but I already know that the next time I teach my 3-credit course, Information Research in the Social Sciences and Humanities, I’m going to have my students read it. It’s a great way to introduce folks to some rather thorny questions and legal concepts. By looking at the headaches that documentary filmmakers have to contend with as they decide what can and can’t make the cut in their films, the authors of Bound by Law? illustrate quickly and clearly the way that copyright law has increasingly become a burden on artistic expression.
The book’s publisher, Duke University Press, has thoughtfully made the full-text of the book freely online in various formats. If you want to grab the PDF for the book, you can do so below.
Here’s a choice nugget from Lawrence Lessig’s book, Remix: Making Art and Commerce Thrive in the Hybrid Economy:
Second, digital technologies also change how RW [read-write] culture and copyright interact. Because every use of [a digital] creative work technically produces a copy, every use of [a digital] creative work technically triggers copyright law. And while many of these uses might be fair use, or uses licensed, expressly or implicitly, by the copyright owner, the critical point to recognize is that this is still a vast change to the history of American copyright law. For the first time, the law regulates ordinary citizens generally. For the first time, it reaches beyond the professional to control the amateur–to subject the amateur to a control by the law that the law historically reserved to professionals.
This is the most important point to recognize about the relationship between the law and RW culture. For the first time, the law reaches and regulates this culture. Not because Congress deliberated and decided that this form of creativity needed regulation, but simply because the architecture of copyright law interacted with the architecture of digital technology to produce a massive expansion in the reach of the law. (p. 103)