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Creators and the Information Commons

Jonathan Tasini

Introduction

We cannot explore the issue of creators and the Information Commons without beginning with a basic premise: the problem we face is corporate power, a concept that we, as a society, don't like to discuss. If we talk about corporate power, we are labeled "anti free market" or "neo-Luddites" (I suppose this is progress from the days when dissenters were called Communists). If we are to be successful at protecting the Information Commons, our voices must loudly label the phenomena as it is, and avoid starting our legitimate pleas with sentences that begin with "we want businesses to be competitive" and "the government shouldn't interfere in the digital marketplace."

By defining unrestrained corporate power as the central problem, we can clearly define the tensions that are inherent in trying to define the creators' interest in protecting the Information Commons, on the one hand, while making sure that individual creators draw some economic benefit from the exploitation of their works, on the other hand. That is, if we understand that the threat to the Information Commons beckons from the monopolizing of information by large content owners, we can, then, more easily envision the right relationship between small producers (individual creators) and the public interest.

The difficulty of this challenge can be concisely illustrated by a recent news report. In a story under the headline, "2 Copyright Cases Decided in Favor of Entertainment Industry," 1 the reporter wrote, "Both cases involve challenges to a 1998 federal copyright law, the Digital Millennium Copyright Act, which strengthened the hand of artists and other copyright holders in order to curb piracy of music, film and other works [emphasis added]."

Here, in clear view, we see the problem. Individual creators ("artists") are swept into the catch-all phrase "copyright holders," the same term that is often used to define the interests of big content owners such as AOL-TimeWarner. This example illustrates the unstable nature of the distinctions we try to draw between distributors, creators and users of information. Certainly in the context of the subject matter-that is, the DMCA and, more broadly, legislative initiatives aimed at locking down more information-the interests of individual creators and big content owners/distributors are not, by in large, synonymous. Individual creators mainly see their economic rewards flow as a result of either an amount paid to them by large distributors for the right to use the individual creators' work or, in historically fewer examples though growing with the advent of cheaper technological transmission, a direct sale to an end user for a specific amount. Large distributors, on the other hand, profit from the centralization and control of information, which is sold with increasingly restrictive licenses.

Two general observations are worth noting at this point. "It is intellectual property…that provides the key to the distribution of wealth, power, and access in the information society," writes James Boyle, professor of law at Duke University. 2 David Bollier, director of the Information Commons Project at the New American Foundation, writes, "the rampant propertization of information has far-reaching implications for free speech and the diversity of sources in our society." 3 Both those points summarize well the situation facing creators-with no control over their intellectual property, creators will be powerless to make decision over how their work is used and, moreover, they will be driven from the marketplace, reducing the number of information sources and their various voices.

The Information Commons debate, then, has one overarching theme that knits all communities together: should there be any rules in the digital world or should it be shaped by the harshest form of Darwinian economics where the strong vanquish the weak? Should there be public policy-driven rules governing access to the Information Commons or should the market decide? To remain healthy and robust, a balance must exist between licenses, copyrights, patents, and freely available information.

Creators' Stake in the Information Commons

How do creators fit into the concept of the Information Commons? To state the obvious, creators are suppliers of information. And, creators are avid users of the Information Commons as a source of ideas, data and inspiration for new creative works. So, on the face of it, the concept of a robust, protected Information Commons is one that every creator would embrace.

Yet, creators are torn and conflicted, in large part because they are under siege. On the one hand, real income for most creators has declined in the past two decades, according to data compiled by the National Writers Union. The power amassed by the media industry has meant increasingly draconian contracts and lower fees.

On the other hand, creators have sided, reflexively, with the large content owners when it comes to the very issues that threaten the Information Commons, principally copyright legislation. I have referred to this as the creators' version of the Stockholm Syndrome. 4 Indeed, creators seem to suffer from many of the basic Stockholm Syndrome characteristic: the captive's perception of small kindnesses from the captor within a context of terror (e.g., The New York Times publishes an author but takes away any control she will have over her work and refuses to pay additional money for digital uses); isolation from perspectives other than those of the captor (e.g., hearing industry-generated stories of the vast sea of "pirates" who steal copyrighted material); and a perceived inability to escape (e.g., the fear an author has that publishers are their only tool to have their work see the light of day).

In other words, if our goal is for creators to embrace and fight for the Information Commons, they must see that the power the industry has amassed threatens their economic security-which is defined not only by the money they earn but their access to the very information that sustains their creative works.

The Economic Crisis for Creators

The media industry is conducting an unrelenting war against creators. This war actually goes back many years but has intensified over the past decade, in large part due to the massive consolidation that has taken place among the media companies. A simple way of thinking about this is to realize that these media barons do not give a hoot about the quaint craft of writing. For them, creators are simply "content providers." Their vision is to control content from the moment of creation to its final sale-today and for eternity.

For creators, the question of corporate consolidation is crucial-as it is in the context of the larger questions relating to the Information Commons. More than a vast monopoly, media journalist Ken Auletta has recently termed the consolidation trend a global version of the Japanese keiretsu-a web of companies that invest in each other, do business with each other and divide up the world to the exclusion of all others. This corporate power is being amassed by an unimaginable financial heist that dwarfs any theft ever known before. Bigger than the Brinks armored car caper, more staggering than any manipulation of the stock market, and, over time, leaving in the dust all the Savings and Loan scandals combined. It is the Greatest Heist Ever-the methodical theft, monopoly control and expropriation of information by the media cartel, perhaps the most powerful global economic force ever assembled in human history. Its perpetrators carry names such as AOL-TimeWarner, Disney and Bertlesmann.

The very existence of this heist, blessed by a true exercise in political bi-partisanship, is a shocking indictment of our political system. For the sake of the vaunted free market and for the benefit of a few corporations, we are soiling the U.S. Constitution and perverting 200 hundred years of history that cherished access to information as the engine behind the progress of arts, sciences and culture. Tens of thousands of individual creators will cease to benefit from future exploitations of their art because the heist will rob them of the legal control to their works.

In this space, it would be impossible to recount the blow-by-blow evolution of the legislatively policies that lead to the heist but the industry's success in weakening creators' rights and endangering the Information Commons can be traced to one thing: money. Overall, the communications and electronics industry contributed an eye-popping $129 million to congressional and presidential candidates in the 2000 election cycle, according to the Center for Responsive Politics. Among the top 20 contributors, you can find Microsoft ($4.5 million); AOL-Time Warner (pre-final merger shelling out a combined total of more than $3.8 million); Walt Disney Co. ($1.8 million); and AT&T (more than $3.8 million). The contributions were truly bi-partisan-for example, Hillary Rodham Clinton and her Republican opponent, then-Representative Rick Lazio, ranked fifth and sixth respectively in total contributions to specific candidates; the average contribution to a Democratic House member was $35,688, a hardly discernable advantage over the average $34,709 to a Republican House member. In other words, on this issue, the industry's agenda is quite well guarded, no matter which party controls the Congress. This should be upper most in the minds of those advocating for legislative safeguards for the Information Commons.

By the end of 1998, largely due to the WorldCom-MCI merger (then, the largest corporate merger in history), 80 percent of the long-distance telephone market was controlled by WorldCom-MCI, AT&T and Sprint; only four regional Baby Bell companies were left-Verizon, Bell South, Qwest/US West and SBC Communications, which controls a third of local phone lines after gobbling up Ameritech in a $56 billion deal just months after the Act was signed into law. Combined the seven largest media companies in the world-AOL-TimeWarner, Disney, Vivendi/Seagram, Viacom, Bertelsmann, News Corp. and Sony-had $137 billion in revenues in 2000, their size and, actual existence (for example, AOL-TimeWarner and Vivendi/Seagram), spurred on by a massive legislative blitz that cleared the way for their corporate metamorphosis. This trend has undermined creators' rights.

Scholarly and even-toned as we might want to be, one cannot underestimate the extraordinary greed that has driven the reshuffling of the public's communications system. Consider just two examples. In December 1997, Michael Eisner, Disney's chairman and CEO, who engineered the purchase of ABC and other media properties, exercised 7.3 million stock options for a paper gain of $565 million, by far the biggest stock option gain in corporate history, according to the Wall Street Journal. Three years later, a bank, representing pension fund shareholders, sued former Sprint executives and directors, alleging that a proposed merger with WorldCom was nothing more than a scheme to activate millions of share options, worth hundreds of millions of dollars. The suit, which is still pending, argues that the executives knew that regulators would block the $129 billion merger (announced in October 1999) on anti-trust grounds-and so they altered the terms of the stock plan so they could unlock their options shares even if the merger was spiked (indeed, the merger fell apart in the face of government opposition).

These examples are worth counter-posing: a values system that inspires greed versus a values system that celebrates a societal good such as knowledge.

Even most creators don't know that the respect for copyright is inscribed in the U.S. Constitution, Article I, Section 8: "The Congress shall have Power…To Promote 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." Though I think the general, uncritical reverence for every tenet of the U.S. Constitution is worth questioning (as author Dan Lazare did in "The Frozen Republic"), this section embodies some specific cultural values worth considering.

The enlightened view of creators is that the Constitutional copyright principle embodies three ideas. First, it articulates the idea that society values the work of authors and inventors, and culture will only thrive when authors and inventors are given a fair return that comes from owning their work. Second, we also want information to be in the hands of many people so we grant authors an exclusive right only for "limited Times." As James Boyle has argued, the limitations on intellectual property "are just as important as the grant of the right itself." Third, in the wake of a revolution that sent a monarch packing, the only way to ensure a free and democratic society was to make sure that no one power or entity could control information-and that would be done partly by giving authors the right to own their works. Some experts view the concept of allowing individual authors to have the power to license use of their work, whether for a fee or for free, as a check on the government's ability to control information and individual expression. Indeed, the assault against creators' rights is arguably also an attack on the First Amendment.

Pause for a moment to consider the actual spirit of the words in the Constitution. They clearly cherish the individual author. They speak of promoting science and arts. The public is supposed to benefit from an author's limited right to control his work because such a right would encourage authors to make new works. How, then, did we get to a point where "authors" of creative works are large corporations and the congressional authority to create an intellectual property regime now means legislating barriers to the flowering of culture and effective perpetual control over information?

It started with the dreaded concept of "work-for-hire," which was incorporated into the 1976 revision of the Copyright Act and gave ownership to corporations of any creative works made in the course of an employment relationship. But, work-for-hire was a principle not pursued with a vengeance-until the mid-90s. In 1995, The New York Times issued a "work-for-hire" agreement, which decreed that all articles written by its freelancers would be "'works made for hire' and that, as such, The New York Times shall own all rights, including copyright, in your articles. As works made for hire, your articles may be reused by The New York Times with no extra payment made to you."

The Times wasn't alone. Since then, virtually all contracts, whether or not they specifically use the words "work-for-hire," now demand that creators sign away all their rights in perpetuity-for media now known or hereafter invented, in this universe or any universes to be discovered (after all, one must cover all scenarios).

To underscore this point, the Copyright Act no longer works for the individual creator in their daily economic lives. So-called all-rights contracts and work-for-hire contracts are obliterating any protection authors have under the 1976 Copyright Act. Instead, most rights for creators are defined by written contracts, which, as described above, are eliminating any individual creators ownership of copyright. It is worth noting how similar this specific development is to the general trend for private contracts to trump the public policy goals of the Copyright Act (for example, the erosion of access to information because of the Uniform Computer Information Transactions Act, which has been termed a "dangerous, anti-competitive, anti-business, anti-consumer measure that will have a negative impact on the American economy and the development of electronic commerce and new technologies" by the Americans for Fair Electronic Commerce Transactions). 5

The Times trots out all sorts of arguments for using all-rights contracts to undermine the Copyright Act and the spirit of the Constitution: we're not making money in the electronic age or it's too complicated to obtain the rights for works in a fast-moving digital world. These excuses are rubbish. In the good-old print age, authors were paid whether the company made money or not. If you wanted to sell an author's work, the law and fair business practice dictated payment. Moreover, the new information technologies make obtaining rights doable.

In fact, the National Writers Union has set up the only author-controlled, transaction-based licensing system, the Publication Rights Clearinghouse (PRC), precisely for the purpose of making rights available quickly. 6 The PRC works quite easily. Any writer can enroll. Once enrolled, the writer conveys to the PRC the right to represent the writer's works. She can do so using a fairly sophisticated on-line tracking system, which has the ability to search the entire one-million article database of a major information aggregator, EBSCO; the database is scalable and could grow exponentially as additional databases are grafted onto the basic skeleton of the system. Within a few minutes, a writer can assert their rights to articles and make those articles available for legal sale.

No, the real motive behind all-rights contracts is far simpler: greed. The industry is using its growing power to pocket all revenues, leaving authors out of the equation. When boiled down to its essence, the inescapable conclusion is that the media industry is using contracts-and the underlying free-market contract law philosophy that you can get anyone to sign away anything-to obliterate the rights of creators inscribed in the Constitutional right of copyright. And, by doing so, they will own all creative works.

Masking the broad attack on authors is a massive dose of hypocrisy. The media industry's lobby fights fiercely to protect copyright laws, trotting out authors as examples of the victims of international piracy and the lawless behavior of information users. They use us because it's obviously hard to feel sympathetic towards their wealthy executives. But, the realty is that the industry seeks laws to fatten its profits while, at the same time, pursuing a campaign to deny creators their fair share. They evoke the classic domestic batterer who professes undying love to a spouse in public, while beating her to a pulp behind closed doors.

The development of the individual author-controlled PRC is significant in trying to resolve the tension between the public's access to information and authorial control. By developing new public domain-oriented licensing models, authors who control their works could have the power to make their works available. For example, to the extent individual authors have more control over their works relative to the big content owners, it is conceivable that libraries would be able to own information, rather than simply have access to information via increasingly onerous and costly licenses. That assertion assumes a fact that is more conjecture than scientifically provable-individual authors are far more likely to be flexible (compared to large content owners and distributors) in allowing their works to enter into the public domain or, at least, be accessible with far less restrictive use requirements.

The Damage to Creativity and Freedom of Speech

Copyright offers an incentive to creators, but, so, too does the Information Commons. After all, for the creator, the low cost of access to information means the ability to mine the history of knowledge for ideas on which to build new stories and new ideas.

The damage to creativity and freedom of speech for creators comes via legislative action and market pressure. Two legislative bills are particularly at issue here: the 1998 Digital Millennium Copyright Act (DMCA) and the 1998 Sonny Bono Copyright Term Extension Act, which were signed into law within one day of each other.

From an individual creators' point of view, the DMCA is quite dangerous. The first element has to do with the DMCA's threat to libraries. To again perhaps state the obvious, creators are huge users of libraries as a place to go to access information, past and present. The threat to creativity posed by the DMCA is that, over time, every "fair use," defined broadly, will be affected. Fair use is a legal term but it is also a societal principle that guarantees the use of copyrighted material for education, research, and criticism, without needing to obtain the permission of the copyright holder.

To some extent, the principle of fair use has been viewed, correctly, as a building block for knowledge-I invent something, you invent something better using my knowledge. "Under the doctrine of fair use…certain unauthorized use is permitted," argued Prudence Adler, legislative director for the Association of Research Librarians in a recent policy paper. "Yet, under the DMCA, unauthorized circumventing of a technological protection measure is illegal thus the view of some that there is no fair use in a world that employs technological protection measures." Under the DMCA, libraries might not be able to make preservation copies. A creator may not be able to reproduce an article she finds in the library. A creator might not be able to reproduce a poem for use in a performance. Or, creators might be able to make these reproductions, but instead of costing 5 cents a page for photocopying, they might have to pay a dollar a page. In a pay-per-view world dictated by a few companies, these scenarios are quite plausible.

These are quite troubling developments for creators. If they cannot get real-time access at affordable prices, creators of the future will come only from the ranks of the privileged.

As well, the DMCA endangers a creators' free speech and expression rights. When Edward Felton, a Princeton University professor of computer science, broke a watermarking code as part of a challenge made by the Secure Digital Music Initiative (SDMI), he did so as a researcher. But, he also sought to publish his results-which gave him another hat to wear. The absolutely chilling affect of the threatening letter from the SDMI, which said that if he released his findings, the action "could subject you and your research team to actions under the Digital Millennium Copyright Act," ripples beyond the scientific community because, under pressure, Felton decided to withdraw his paper.

Indeed, how is a creator to even know, as she seeks to introduce information into the Information Commons, that she has run afoul of the DMCA. The DMCA seeks, "for the first time to impose liability on ordinary citizens for violation of provisions that they have no reason to suspect are part of the law…," writes Jessica Litman, professor of law at Wayne State University and the author of the recently-published, "Digital Copyright." 7

Looking forward, another threat looms for creators in the form of the one piece of the industry's agenda that the DMCA failed to deliver-broad database protection. Now, one would think that this seems reasonable-a company creates a database and wants to protect the database from unauthorized uses. But the rights the industry wants are staggering. They not only want to impose perpetual copyright protection over the actual databases they assemble, they want to own the facts in the database. In other words, they want to own the specific parts, not just the whole that is made up of the parts.

To understand what this means, consider the following: imagine a scientist, rumpled, unruly hair and untied shoes. We shall call him Albert Einstein. He's got some wild ideas about the origins of the universe, partly derived from facts discovered by a predecessor, who we will randomly call Isaac Newton. If Einstein had to operate under the industry's desired database law, Einstein might have been blocked from the easy access to Newton's facts because a company likely would have owned Newton's work, demanded large fees from Einstein who perhaps might not have been able to afford the price. Einstein might never have produced his most brilliant theories that shape our understanding of the universe. While this is a fictitious example, it is precisely the scenario feared by scientists and researchers nationwide.

And it is a similar threat to creators of literary works and other artistic works. For example, the database legislation may bar a creator be able to use sports statistics in a magazine article chronicling probably the best team in major league baseball history -The New York Yankees who have won 26 World Series titles-if she cannot freely use accumulated information contained in a database.

The Big Lie: Copyright Extension Protects Individual Creators

A final area to consider is the notion of copyright extension. The industry has long argued that the copyright protection granted past the lifetime of the author is an important incentive to encourage creators to produce more works, But, as many experts have pointed out, the point of copyright protection is to encourage creators to produce new works while they are living, not to benefit heirs (who may have no connection to the creative world) long after the original creator is dead.

A far more important point is relevant-there are very few families of individual authors who benefit from the extension of copyright protection after their deaths. 8 The fact is that few works continue to earn enough money for such a long period of time. As well, if copyright protection post-death even benefited heirs, it clear does not do so as authors are forced to sign away their rights in perpetuity.

Copyright Term Extension has to be seen solely as a corporate benefit. While Singer-turned-Congressman Sonny Bono had the 1998 Copyright Term Extension Act law named after him, it could easily have been called the Disney Term Extension Act. The company was in near panic because a cataclysmic event was about to occur-Mickey Mouse would fall into the public domain in the first decade of the 21st Century, thereby, falling beyond the copyright control of Disney (once copyright ownership expires, users are free to take and republish or distribute works without prior approval of the author). To save the legal life of Mickey (not to mention his celluloid sidekicks Donald Duck and Goofy), Disney orchestrated a campaign to lengthen the term of copyright, which stood at life plus fifty years for individuals and 75 years in the case of corporate ownership. The new term of copyright, for works created after January 1, 1978, will be the life of the author plus 70 years. And in the spirit of something extra for Disney, the bill added two additional decades to copyrights "created" by corporations. So, Mickey will be 95 years old before the public can gain access to his likeness without paying a fee to Disney.

As well, the Copyright Extension Act means that works that previously would have fallen into the public domain-in other words, would be made available to libraries for no cost-will remain the property of the copyright holder. In reality, those copyright holders are almost entirely large corporations. So, libraries will be forced to engage in an expensive permissions process or not make certain works available to users-either leading to additional costs to libraries or fewer information resources available to users. This has a direct affect on creators because, to the extent work do not come into the public domain, the cost of their use unavoidably puts a heavier financial burden on the creator to use such works.

The issue of copyright term extension directly affected a member of the National Writers Union, Alice Randall. On April 20th , 2001, a federal judge in the Northern District Court in Atlanta granted a preliminary injunction banning, "The Wind Done Gone," Randall's parody of "Gone With the Wind." But, Randall's publisher, Houghton Mifflin filed an emergency motion and the 11th Circuit Court of Appeals lifted the injunction on May 25th , 2001. 9 The estate of Margaret Mitchell had used the extended copyright protection on Gone With the Wind in an attempt to block publication of "The Wind Done Gone." Under the 56-year copyright term effect when Mitchell wrote the book, the world of Tara should have become public domain in 1993. Even though Randall's book was ultimately published, she had to endure a significant financial and emotional toll to fight for the right to have her book see the light of day-a fight necessitated by the copyright term extension.

A final note: it would be quite useful to undertake a systematic research project designed to ascertain who benefits from the economic benefits derived from copyright extension. It is the author's contention that such research will show conclusively that the benefits from copyright extension-certainly the most recent version stretching ownership of copyright to life plus seventy years-flow overwhelmingly to large content owners and distributors, not to individual creators or their heirs.

The Tasini Dilemma: A Grand Solution

10

There is no question that the attack on creators intensified after a group of writers, including this author, filed a lawsuit against The New York Times and other defendants, arguing that the defendants were guilty of stealing the copyrighted works of freelance writers by using the authors' works without permission in electronic media (Tasini v. The New York Times). 11 Though only a few media companies were defendants in the case, the precedent fingered the practices of virtually every major media company. In June, the Supreme Court ruled by a 7-2 majority that the media companies had, in fact, infringed the writers' works. 12

Aside from the inherent importance to creators, the lawsuit is important to the discussion of the Information Commons because it highlights a tension between, on the one hand, the need for authors to make a fair living from their works versus, on the other hand, the need for the public to have access to information. Authors have to have some system that protects their legitimate rights. At the same time, for the Information Commons to be robust, such a system cannot slow down access to information, interfere with an individual user's privacy rights and, most important, weaken fair use standards.

In fact, the suit provoked discussion within the library community and generally in the public, about the effect a win for the authors would have on access to information. Some of the debate has been thoughtful; some commentators envisioned vast holes in the historical record if the authors won and, as a result, publishers carried out their threat to remove articles from databases. Without a doubt, the specter of gaps in information is a critical one. Unfortunately, too much of the debate has shed more heat than light (with headlines such as "The Tasini Decision: A Victory for No One"). Indeed, to date, very little information has been removed from data banks. 13

It is critical that, as we move forward to discuss the affect of the lawsuit specifically, and the general question of authors legitimate rights in the Information Commons, we distinguish between two issues: the rule of law versus a solution. Media companies broke the law. To simply state that, "no one wins" from the Supreme Court decision is to ignore the rule of law (which media companies proclaimed as an important value in regular editorials during the various investigations of the Clinton Administration). It is a statement that we should ignore, as a society, the rule of law because there are some consequences to upholding the law.

With calm reflection, it is easy to see the true state of affairs. Due to the court's ruling, publishers and data aggregators face liabilities for infringing authors' works. A series of class action lawsuits have been filed, using the Tasini precedent, seeking damages; all those legal cases have been consolidated (under the federal Multi District Litigation process) under one judge in the Southern District of New York. Most publishers and data aggregators have reacted judiciously-they have announced that they needed to study the implications of the ruling and review what their specific liabilities would be as a result of litigation. The National Writers union has repeatedly urged all media companies to sit down and negotiate a quick solution, which would remove any questions about the legal rights to articles. 14

A few publishers have reacted more negatively. The New York Times threatened to remove articles from its website and direct data aggregators to delete articles to which The Times did not own the rights; in fact, it has removed some articles from its electronic archives. The Times has also created a "blacklist" of writers who participated in the legal action that lead to the Supreme Court decision. 15

A Proposed Grand Solution

Without a doubt, protracted and costly litigation is one road available for the resolution of the Tasini-related claims. However, there is a better way. In this paper, I would like to outline publicly, for the first time, a proposed Grand Solution. This solution would do four things:

  1. Authors would receive payments for past usages of their work.
  2. Publishers, data aggregators and other media information providers, who participated in the scheme, would receive blanket liability protection from past infringements.
  3. A system would be set up (and its policy set by individual authors representatives) to properly manage the licensing of copyrighted works and royalties.
  4. Authors would be given the legal right to bargain collectively.

There are three key premises to this solution:

  1. Authors deserve their fair share from the use of their works.
  2. Publishers, data aggregators and other media information providers face significant liabilities from the Supreme Court decision.
  3. Protracted litigation-and the uncertainty it fosters-is not in the best interests of authors, the industry or the public.

Here is how it would work.

Part One:
Publishers, data aggregators and other media information providers would agree to pay a sum of money (a sum less than the amount likely to result from a pitched battle in the courts):

  • To compensate authors for past infringements. The payments could be calculated on a per-use or up-front basis.
  • To help fund the establishment of a licensing system that would handle the payments and grant licenses for the use of the works.
  • To pay any legal fees.

Part Two:
Publishers, data aggregators and other media information providers who participate in this system will then be given blanket protection for liabilities for past infringement. The protection would come other via the judicial and/or legislative branch (in the form of an agreed-upon class settlement and/or Congressional action). 16

Part Three:
Creators would be given, via Congressional legislation, the legal tools to collectively bargain; publishers, data aggregators and other media information providers would agree, as part of receiving protection from liability, not to lobby against such legislation. In part, this would require granting an anti-trust exemption for creators (who are considered independent contractors under today's labor laws).

One avenue would be to emulate already existing anti-trust exemptions embedded in the Copyright Act. Section 115 of the Copyright Act addresses the "scope of exclusive rights in non-dramatic musical works: Compulsory license for making and distributing phonorecords." In part (c) B (3) (B), reads in part, "Notwithstanding any provision of the antitrust laws, any copyright owners of nondramatic musical works and any persons entitled to obtain a compulsory license under subsection (a)(1) may negotiate and agree upon the terms and rates of royalty payments under this paragraph and the proportionate division of fees paid among copyright owners, and may designate common agents to negotiate, agree to, pay or receive such royalty payments." A new section mirroring the intention of the above section would be the simplest and most expeditious way to grant the anti-trust exemption.

Collective bargaining, though not a favored process within the employer community, offers benefits for the industry and the public. Currently, the industry bargains with individual creators one-on-one; there are no across-the-board, agreed-upon industry standards nor a system to easily process rights and pay royalties. Indeed, had collective bargaining existed in the industry ten years, it is likely that the entire litigation commenced in 1993 by the Tasini plaintiffs would never have happened because terms and conditions-i.e., written contracts with clear rights assignments-would have existed. Obviously, then, there is a public policy benefit to encourage collective bargaining between the media industry and its creators-content will be legally used and the user community will know, in general, that they are purchasing non-infringing material. 17

What Is To Be Done?

If this heist will apportion power, why is there relatively little protest across the land? For some, it would seem counter intuitive to argue that anyone can control information in the age of the Internet. What information can't you find on the Internet? Click on any number of search engines and you are transported throughout the digital universe to choose from a torrent of information. And that doesn't include information you never sought that is shoved at you. Indeed, people are feeling like they have too much information.

It is also doesn't makes headlines every day. We do not see this threat because it comes upon us as imperceptibly as pollution we do not see. It's daily corrosive progress is pushed forward by a corporate decision one day, a legislative bill passed months later or unconscionable contracts imposed on creators virtually every day-none of which individually shout out to the public. We're too busy worrying about the next swing in the stock market, the few dollars we might get to spend on candy thanks to the bi-partisan tax cut or whether Josiah Bartlett will run for another term.

As well, the language of this heist is not the everyman's lingo. What we hear of the heist comes to us in debates about "copyright" and "intellectual property." Reporters generally have done a lousy job explaining the industry's heist, preferring to fawn over the next Big Deal or focus on piracy by the masses such as the miscreants who used Napster. Indeed, the industry has been so successful at manipulating the debate that Pat Schroeder, former liberal congresswoman turned head of the Association of American Publishers, can attack libraries as a great danger to creators and culture-and get away with it.

So, what is the solution? The Digital Future Coalition, among others, is mobilizing to stop the database legislation. A coalition of law professors is leading an effort to create an Intellectual Property Commons, which would be a virtual space where copyrighted works would reside giving easy access directly to the public. In his recent work, "Public Assets, Private Profits," David Bollier writes eloquently that "it is wrong for core democratic functions and assets to be privatized" and argues for government's role in protecting the Internet "public commons."

The labor movement can play a role, also. The National Writers Union has consistently opposed legislation aimed at constricting the information commons. Those positions grow out of the NWU's philosophy-and that philosophy of the NWU's parent union, the United Auto Workers-that it's mission to enhance the lives of its members comes not just from advocating for better pay but by arguing for a broader social vision that includes the need for people to have access to information. By extension, the millions of members who belong to unions would be among the most vulnerable to any trend that limited information accept those who could pay higher prices.

But, what is missing most is a national debate that shines a bright spotlight on this heist and its consequences. The potential forces ripe for a coalition on this issue are awesome-libraries, who serve millions of people across the nation; organized labor, which has millions of members whose brains and pockets will suffer if the heist goes unchecked; and even small businesses whose ability to access information to build upon the wealth of past scientific and technical wizardry will be severely curtailed. We often forget a central fact of life: the rules of the economy are not inevitable, like the sun rising in the east and setting in the west; the rules are set up by people who define and control the game. And we have to carve out a more aggressive role in defining the economic rules of the game.

Indeed, our end goal should be precisely to enhance the government's traditional role in the fight for guaranteeing access and openness to information-the same spirit underlying the revered role government had in protecting social goods and democracy when our political discourse praised Social Security, not attacked it; held up welfare protection as a sign of a caring society, not a corrupt one rife with cheats; and led to the elimination of sweat shops because safe working conditions on the job were considered basic rights, not conveniences done away with in the rush to be globally competitive. In other words, the information commons can only exist with aggressive social engineering. As Robert Kuttner, co-editor of The American Prospect wrote, "So, let's retire the idea that the New Economy is naturally an unregulated economy…We've never needed thoughtful regulation more than we do now." 18

In August 1994, amid intensified effort to move deregulation legislation, a revised version, of "Cyberspace and the American Dream: A Magna Carta for the Knowledge Age" appeared. Written principally by Alvin Toffler, George Gilder, Esther Dyson and George Keyworth, the document pompously declared the information revolution as a time to "summon us to renew the dream and enhance the promise" of the American Dream. Governments, they write, "including the American government, are the last redoubt of bureaucratic power on the face of the planet, and for them the coming change will be profound and probably traumatic." Eventually, they come to the proper role of government: "if there is to be an 'industrial policy for the knowledge age,' it should focus on removing barriers to competition and massively deregulating the fast-growing telecommunications and computing industries."

We have to stop being afraid to point the finger and call this heist what it is: a tragic, outrageous exercise of corporate power and corporate greed, aided and abetted by political leaders. To those who fear being painted as radicals, we must argue that we are in fact conservatives, and that the industry is the radical force trying to upset a historic, treasured principle-the advancement of the knowledge of humans comes from sharing, the systems of communication and expression belong to the public and the experiential wealth of a nation laid before us as ideas and information cannot, and should not, be locked up as the property of a few.

Notes

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  1. John Schwatz, The New York Times, November 29, 2001, page C4. One case dealt with the Motion Picture Association of America's suit against Eric Corley and 2600 magazine; the other case was Edward Felten's suit against the Recording Industry Association of America, charging that the RIAA had threatened Felten in an effort to prevent him from publishing his research on methods to break digital copyright protection systems. [ back]
  2. "A Politics of Intellectual Property: Environmentalism for the Net?" p. 89, Duke Law Journal, Volume 47, No. 1, 1997. [ back]
  3. "Public Assets, Private Profits: Reclaiming the American Commons in an Age of Market Enclosure," New America Foundation, 2001. [ back]
  4. The Stockholm Syndrome idea was coined in the early 70's to describe the puzzling reactions of four bank employees who had been taken hostage during a bank robbery in Stockholm. The hostages retained warm feelings to their captors during the standoff and after the hostages were released. See http://web2.iadfw.net/ktrig246/out_of_cave/sss.html [ back]
  5. See http://www.4cite.org/ [ back]
  6. See http://www.nwu.org/prc/prchome.htm [ back]
  7. "Digital Copyright," page 145, Prometheus Books, 2001. [ back]
  8. This assertion if made based on the author's familiarity with the creator world. However, empirical data is not currently available. The author recommends that a study be undertaken to ascertain precisely where the economic benefits flow from copyright term extension' such data would prove to be invaluable for the current debate. It is the author's contention that a miniscule amount ends up benefiting individual authors' heirs. [ back]
  9. See http://www.thewinddonegone.com/may25pr.html [ back]
  10. The author feels awkward about referring to the "Tasini Dilemma." However, this seems to be an accepted and recognizable shorthand in the communities debating the implications of the Supreme Court case. [ back]
  11. For all the legal documents, including a link to the text of the Supreme Court decision, see http://www.nwu.org/tvt/tvthome.htm. [ back]
  12. On October 9, 2001, The Supreme Court effectively expanded the scope of its ruling in Tasini by refusing to hear National Geographic Society v. Greenberg (No. 01-186). Greenberg was a photographer who sued the magazine over the use of his pictures in a set of CD-ROMs that reproduced past issues of the magazine. The magazine argued that the Greenberg case was unlike the Tasini case because the CD-ROMs presented his photographs in the original context. Greenberg won his case in the appeals court. By refusing to hear the Greenberg case, the Supreme Court indicated that the Tasini ruling applied to the Greenberg-type situation. [ back]
  13. Public comments by major aggregators. For example, at a November 6th 2001 public forum at the Internet Librarian conference entitled, "The Tasini Decision: The End of Full Text as We Know It?," representatives of Pro Quest and Gale Group both asserted that their companies had deleted less than one percent of the content in their databanks as a result of the Supreme Court decision. [ back]
  14. See http://www.nwu.org/tvt/vicplet.htm [ back]
  15. See http://www.nwu.org/tvt/blacklst.htm [ back]
  16. The author believes that the preferred blanket protection come via the judicial branch. The author would like to acknowledge initial research into this question conducted by the Intellectual Property Law Clinic at American University, specifically the work of Nishan Kottahachchi, Tanya Asim, Todd Anthony and Alethia Bess. The research initially indicates that Congressional legislative solution to mass liability problems Black Lung, Tobacco and, most recently, the Air Transportation Safety and System Stabilization Act (passed in the wake of the September 11th attacks) either do not fit the mold of the creators' litigation or generate more problems than solutions. Furthermore, another modelthe Copyright Arbitration Royalty Panels (CARP), which set royalty fees for statutory licensesare fraught with problems. However, legislative solutions for the blanket liability coverage should not yet be completely dismissed. [ back]
  17. This, of course, refers to material that would not fall under "fair use" guidelines. [ back]
  18. "Sorry, But the New Economy Demands New Regulations," Business Week, July 30, 2001, page 23. [ back]

An article from the forum, "The Information Commons, New Technology, and the Future of Libraries." Published June 2002 at info-commons.org. Copyright © Jonathan Tasini

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