Thursday, November 10, 2016

Cory Doctorow on Despotic Dominion

Cory Doctorow's latest LOCUS column delves into some oddities of copyright, intellectual property, and the DMCA (which he calls "a giant, gnarly hairball of a law"), beginning with a quotation from William Blackstone (the great 18th-century legal authority) on private property as "sole and despotic dominion" over the entity of which ownership is claimed:

Sole and Despotic Dominion

The essay first discusses the history of "intellectual property," a relatively recent term. He cites the notice that used to appear in paperbacks, warning the reader that the book couldn't be copied, lent, resold, etc., under penalty of law—in short, strictly speaking the buyer couldn't even give away the book. Doctorow calls BS on this warning. However, he applies the same judgment to the similar warning in current books, "No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical..." without the publisher's permission—which seems more problematic.

He remarks, "If copyright law were a system of magic in a fantasy novel, we'd never buy it." In his opinion, it's riddled with "exceptions and carve-outs that ignore its alleged underlying rationale and just fiddle things around for the sake of narrative convenience." Most of the article deals with the application of the DMCA to software, with wide-ranging effects many consumers never think about. The mind boggles to contemplate the number and variety of common devices that contain electronic software—and therefore fall under protection of the DMCA. Nowadays our homes are full of gadgets that have copyrighted software inside them. As with all those computer programs whose conditions of use most customers never read, under this system we don't really own many of the objects we buy, in the sense that what we can do with them is legally limited. Doctorow labels this system "feudalism."

Doctorow's essays on copyright always leave me ambivalent. As an author, of course I want strong copyright protection. As a reader, researcher, and occasional anthologist (decades ago), however, I don't want copyright to last forever. The main effect of an absurdly extended copyright period on older obscure authors is to guarantee that they remain obscure; an editor who might want to reprint a story by such an author, resurrecting the work from the grave as it were, could find it prohibitively hard to discover who holds the rights. And as a fan I get irked with Disney (for example) for locking away films they keep unavailable to potential viewers and researchers but don't make any profit from themselves, e.g. the very early cartoon shorts (which would be out of copyright by now if they were books) or SONG OF THE SOUTH (permanently taken off the market because its depiction of race relations has been Overtaken by Events). Regarding music: I've heard that authors can get in trouble if they reproduce so much as half a line from a copyright-protected song in a work of fiction without paying for permission to quote. Where's the logic in that restriction? Either the song is well known or not. If so, a brief snippet from it does the creator no harm, and you're quoting something your audience is probably familiar with anyway. If not, the quotation does the creator a favor, in effect, by drawing attention to an otherwise neglected musical work.

Even in a capitalist society, no ownership right is absolute. (You can't burn down your own house with impunity or build an addition onto it without a permit.) But where should lines be drawn?

Margaret L. Carter

Carter's Crypt

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