21.4 Copyright, The Tool of Dictators

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It would be unfair to the software industry to portray the rest of society as much more sharing and giving. Most of the other industries are frantically using the legal system and any other means necessary to stay ahead of their competitors. It's just part of doing business.


One of the best examples is content production, which is led by mega-companies like Disney. In recent years, Hollywood has worked hard to get copyright laws changed so that the copyright lasts 95 years instead of 75 years. In 1998, Congress passed the Sonny Bono Copyright Term Extension Act of 1998 (CTEA) that kept works published after 1923 from passing into the public domain until 2019. The industry feels that this gives them the protection to keep creating new items. Creations like Mickey Mouse and Snow White will continue to live in the very safe place controlled by Disney and not fall into the evil hands of the public domain.


Several Harvard professors, Larry Lessig, Charles Nesson, and Jonathan Zittrain of the Berkman Center for Internet & Society at Harvard Law School, and Geoffrey Stewart of the Boston law firm Hale and Dorr filed a lawsuit contesting the act by pointing out that the Constitution provides for a "limited" term. Artists, authors, and creators were given copyright protection, but it was only for a limited amount of time. Afterward, the society could borrow and use the work freely.


There's little doubt that the major Hollywood producers recognize the value of a well-stocked collection of public domain literature. Movies based on works by William Shakespeare, Henry James, and Jane Austen continue to roll out of the studios to the welcoming patrons who buy tickets despite knowing how the story ends. Disney itself built its movie franchise on shared fables like Sleeping Beauty or Snow White. Very few of Disney's animated films (The Lion King was one of the first ones) were created in-house from a clean piece of paper. Most were market-tested for acceptance by their years in the public domain. Of course, Disney only pays attention to this fact when they're borrowing an idea to create their own version, not when they're defending the copyright of their own creations. They want to take, not give.


The movie industry, like the proprietary software business, seems to forget just how valuable a shared repository of ideas and solutions can be. In this context, the free source movement isn't an explosion of creative brilliance or a renaissance of cooperation, it's just a return to the good old days when Congress wouldn't slavishly answer the whims of the content industry. If a theater owner wanted to put on a Shakespeare play, the text was in the public domain. If someone wanted to rewrite Jane Austen and create the movie Clueless, they were free to do so. In the good old days, copyright faded after a limited amount of time and the public got something back for granting a monopoly to the artist. In the good old days, the artist got something back, too, when the monopoly of other artists faded away.


It's not like this brave new world of total copyright protection has generated superior content. The so-called original movies aren't that different. All of the action movies begin with some death or explosion in the first two minutes. They all run through a few car chases that lead to the dramatic final confrontation. The television world is filled with 30-minute sitcoms about a bunch of young kids trying to make it on their own. It's sort of surprising that Hollywood continues to suggest that the copyright laws actually promote creativity.


It's not hard to believe that we might be better off if some of the characters were protected by an open source license. Superman and Batman have both gone through several decades of character morphing as the artists and writers assigned to the strips change. Of course, that change occurred under the strict control of the corporation with the copyright.


The thousands of fan novels and short stories are better examples. Many fans of movies like Star Trek or Star Wars often write their own stories using the protected characters without permission. Most of the time the studios and megalithic corporations holding the copyright look the other way. The work doesn't make much money and is usually born out of love for the characters. The lawyers who have the job of defending the copyrights are often cool enough to let it slide.


Each of these novels provides some insight into the characters and also the novelist. While not every novelist is as talented as the original authors, it can still be fun to watch the hands of another mold the characters and shape his or her destiny. The world of the theater has always accepted the notion that directors and actors will fiddle with plays and leave their own marks on them. Perhaps it wouldn't be so bad if writers could have the same latitude after the original author enjoyed a short period of exclusivity.
There are many ways in which the free software world is strange and new to society, but sharing ideas without limitations is not one of them. Almost all businesses let people tinker and change the products they buy. The software industry likes to portray itself as a bunch of libertarians who worship the free market and all of its competition. In reality, the leading firms are riding a wave of power-grabbing that has lasted several decades. The firms and their lawyers have consistently interpreted their rules to allow them to shackle their customers with stronger and stronger bonds designed to keep them loyal and everspending.


This is all part of a long progression that affects all industries. Linus Torvalds explained his view of the evolution when he told the San Jose Mercury-News, "Regardless of open source, programs will become really cheap. Any industry goes through three phases. First, there's the development of features people need. Then there's the frills-andupgrade phase, when people buy it because it looks cool. Then there's the everybody-takes-it-for-granted phase. This is when it becomes a commodity. Well, we're still in the look-cool-and-upgrade stage. In 10 or 15 years you'll be happy with software that's 5 years old. Open source is one sign that we're moving in that direction."


In this light, the free software revolution isn't really a revolution at all. It's just the marketplace responding to the overly greedy approaches of some software companies. It's just a return to the good old days when buying something meant that you owned it, not that you just signed on as a sort of enlightened slave of the system.