March 2007

There is a great deal of literature out there on digital copyright, and while much of it requires you to already be deep in the discussion, familiar with case law, and technically savvy, there are a select few pieces that attempt to situate the case and its significance in broader terms. I hope that my book, or at least the first few chapters, do this, but it is a very difficult thing to do: talk to the uninitiated without losing them, or talking down to them, or being useless to those more familiar with the issue. I would say that Jessica Litman’s book Digital Copyright is one of the best in this regard, just in terms of being introductory and comprehensive while also taking her reader right to the edges of the question. Lawrence Lessig’s book Code, and Other Laws of Cyberspace is a close second, valuable because it not only addresses copyright but the broader issue of what shapes Internet activity more generally, but less perfect because it moves quickly from providing introductory ground to the argument itself. For the specific issue of “digital rights management” as an outgrowth of the copyright controversies, Mike Godwin’s essay “What Every Citizen Should Know About DRM, A.K.A. ‘Digital Rights Management’”, written for Public Knowledge, is an excellent primer. But my new favorite essay for this task, especially when educating non-lawyers on the subject, is

Healy, Kieran. 2002. “Digital Technology and Cultural Goods.The Journal of Political Philosophy 10(4): 478-500.

Healy’s discussion of the copyright controversy is comfortably situated in the sociological literature on technology, without it becoming a lesson in theory. Like Paul Starr’s The Creation of the Media, he gently puts the focus on how choices made around a technology like the Internet are consequential for the practices that follow, and tend to settle in as norms and arrangements that can be hard to undo, or even recognize, later on:

In this article, I have emphasized the importance of basic choices about the architecture of the Internet, the system of property rights governing it, and the kinds of laws regulating it. These choices will greatly affect how art and culture are consumed, the kind of work that artists can do, and the rewards, financial and otherwise, that consumers, artists and others will be able to reap from the Internet. Yet the success of new technologies tends to obscure the choices made about them. Once the opportunity passes, it can take a great deal of scholarly and imaginative effort to reconstruct just what the alternative possibilities were during a technological revolution. Constitutive choices about digital technologies are being made now. We should make sure we know which — and whose — principles these choices further, before we forget that alternative paths ever existed.

This is not revolutionary insight if you’re in the midst of this literature, but Healy presents it as beautifully as anyone I’ve seen. His discussion of these constitutive choices focuses on three levels: decisions about the architecture of the Internet, the social organization of ther medium, and the symbolic choices of individual users — often scholarship in this area have trouble taking all three of these seriously in the same breath. He also frames the discussion of copyright with a quick attention to other kinds of dilemmas involving the “politics of information”: the problem of how content is located, the “daily me” problems raised by Cass Sunstein, the politics of moderating online discussion, censorship and Internet filtering, and open access publishing. Its a two-page primer on the sociology of technology, a survey course on the sociological issues of digital culture in ten pages, and then a smart discussion of copyright, DRM, the DMCA, and the premise of copy protection.

I will somehow have to catch up with the rest of the bloggers out there, who seem able to hear about, comment on, and get tired of a particular bit of news nearly the instant it happens. But I finally heard about this, and thought it was worth commenting on (thanks to Peter for bringing it to my attention).
In response to the popularity and fawning press coverage of Second Life, a blogger in Vancouver named Darren Barefoot posted a clever parody, called Get a First Life. Borrowing the look and logo of Second Life, he invites users to become part of a “3D, analog world” in which you can “Work. Reproduce. Perish” and even “fornicate using your own genitals.” Knowing the knee-jerk litigious tendencies of most content companies, he solicited both comments and cease and desist letters — usually the legal step when a copyright owner thinks you have infringed on their property. has well documented how eagerly most copyright owners throw cease and desist letters around, using the very threat of an expensive lawsuit to get their way.

Barefoot got something different. In the comment space of his blogpost describing the parody, he got what he calls a “proceed and permitted” letter from Ginsu Yoon, VP and general counsel for Linden Lab, creator of Second Life. In the letter, Yoon acknowledges that Second Life is the owner of the copyrighted material and trademarks that are parodied on Barefoot’s site, that parody is permitted by copyright and trademark law, and that Linden Labs will not sue:

We do not believe that reasonable people would argue as to whether the website located at constitutes parody – it clearly is. Linden Lab is well known among its customers and in the general business community as a company with enlightened and well-informed views regarding intellectual property rights, including the fair use doctrine, open source licensing, and other principles that support creativity and self-expression. We know parody when we see it.

Moreover, Linden Lab objects to any implication that it would employ lawyers incapable of distinguishing such obvious parody. Indeed, any competent attorney is well aware that the outcome of sending a cease-and-desist letter regarding a parody is only to draw more attention to such parody, and to invite public scorn and ridicule of the humor-impaired legal counsel. Linden Lab is well-known for having strict hiring standards, including a requirement for having a sense of humor, from which our lawyers receive no exception.

In conclusion, your invitation to submit a cease-and-desist letter is hereby rejected.

He goes on to offer a nonexclusive license permitting him to use the modified Second Life logo in the t-shirts he sells through the site.

The letter is legit; a reporter from the Seattle Post-Intelligencer asked Linden Labs to comment, got confirmation from their representative. And, it’s an amusing, generous, and refreshing change of pace, where the opposite response has been so predictably and dangerously common.

I want to make one point, somewhat different from the conversations that followed this little event — conversations that mostly focused on saying how great Linden Labs was for doing this, and how rare it is. I’ve been studying the copyright debates for about seven years now, from the beginning (if you count the beginning as the lawsuit against Napster and not, say, the Statute of Anne). But I am still new as a scholar, and this is really the first public controversy I have watched really play out over several years. This little gesture strikes me as a particularly interesting insight into how such controversies can change. One could tell the story of the copyright wars as just that: a protracted battle between intractable enemies. The record labels and the movie studios seem largely unwilling to let go of their hardline position against piracy, and the users of file-trading software continue to take what they want regardless of legal consequences of public condemnation. You could also tell the story in terms of economic compromises emerging: the emergence of iTunes, YouTube, Joost, and others, and particularly the more realistic and financially strategic approach the content companies are taking towards them, suggests there will be some middle ground carved out. I have recently criticized the way that these seeming “compromises” actually accept some of the fundamental positions fought for by the content companies — like the continued use of DRM — but are overlooked as users embrace the services for their convenience and style.

But this letter from Linden Labs suggests to me a third dimension of this changing controversy, one that frankly makes me more optimistic. I don’t know how old Yoon is, I don’t know how old the people at Linden Labs are. But, formed in 1999 to create 3D virtual environments, at least the company itself, and perhaps its key players, grew up amidst this controversy, rather than being thrust into it. Rather than having had some long-held assumptions about copyright and information and culture be challenged by some new technologies and some new views, these technologies and these views have simply always been around. And I believe what we may begin to see is the effect of the mindset of file-sharing, copyleft, Creative Commons, information-wants-to-be-free, web 2.0, open access — not as a new principle, but as the accepted principle. If the people at Linden Labs are not just being strategic (why sue this guy, its a harmless parody, a lawsuit would be bad p.r.) but also generally believe that the circulation of information is good, parody is good, fair use is important, ownership can be loosely held without giving away the pot of gold, then we will soon be in a very different environment in regards to the copyright wars.

As educators, we face this all the time. What still seems a new cultural and political phenomenon to me (be it the Internet, terrorism on American soil, SUVs, organic foods, touch screen voting, bird flu, or cell phones), something that diverged from the norm (whatever I and my generation took that to be) is simply given to our undergraduates, or our kids. And of course my point of reference, in which there was always an environmental movement, space travel, the United Nations, television, the Israel-Palestine conflict, and birth control, were the novel phenomena requiring explanation to the generation or two before me. The email goes around every year: what this year’s entering freshman have always known. Its cute, but it does represent something: what is always there, taken for granted, normal — even if it was and still is controversial — cannot be un-known by the generation that has always known it. And I would argue the same holds true not just for being born into a world marked by certain phenomena, with a particular history already in place, with particular franeworks for understanding available, but coming of age into a particular world, becoming a political citizen in a particular world, beginning a professional life in a particular world. Perhaps our notions of ownership and authorship, of copyright and fair use, of information and its circulation, will change not because we had a fight about it and decisions were made in response, but because those who emerged amidst it see things through a new lens forged in that fight.