Focus 580; Copyright, Intellectual Property and Fair Use

The question for this hour might be in today's political and legal climate can freedom of expression survive. I say that ironically because one of our guests an academic entrepreneur has trademarked the phrase for you know freedom of expression and could probably file an injunction against me right now. But he may not be able to call himself an entrepreneur because someone else has trademarked that term. I want to be fair and balanced about this but Fox News has that one trademarked. It seems that our language is being privatized. Another question since the Internet enables the global distribution of music text art and other creative works. Shouldn't we be entering a golden age of cultural exchange and artistic freedom. The problem there is if you borrow an idea from somewhere or let's say sample a few musical notes deep pockets might take you to court if you share music through the Internet you might be sued. And even if it would be an instance of fair use what we call fair use we run into barriers like copy protection that disables the enabling technology. Our guest today are two scholars who have researched and written widely on the clash between free expression and control of information in the digital age.

Kember MacLeod is a professor of communications studies at the University of Iowa and he's the proud owner of the phrase freedom of expression. Professor McLeod is also the author of the book owning culture authorship ownership an intellectual property law and a forthcoming book entitled freedom of expression over zealous copyright bozo's and other enemies of creativity. He's also written music reviews for Rolling Stone in the Village Voice among other things and has authored some pretty interesting pranks in his time. Civa Vadi an author is director of the undergraduate program in communication studies in the Department of Culture and communication at New York University. He's also the author of the book copyrights and copyright. The rise of intellectual property and how it threatens creativity and a new book just published in titled The anarchist in the library how the clash between freedom and control is hacking the real world and crashing the system. We'll talk with them during this hour. They are here to take part in a international

conference called the crossroads conference here at the University of Illinois. We'll talk with them during this hour about some of these ideas and maybe we'll trade some MP 3 files what the heck. Thanks. Thanks to both of you for being here. Thank you. Thank you. I also want to invite listeners to join the conversation if you have thoughts questions or comments on the topic. All you do is give us a call the number around Champaign-Urbana 3 3 3 9 4 5 5. We also have a toll free line. Anywhere you hear us 800 to 2 2 9 4 5 5. Well I do want to say something about the conference to start out with. Well the conferences all weekend. Global unification of variety of scholars who approach culture from a variety of orientations. So it's going to be a very fascinating converts and the University of Illinois has been the center of cultural studies in North America for a couple decades now so

it's it's very exciting to be here and it's especially exciting to be and I've had the pleasure of doing a couple of shows with you in the past and I have to say to everybody who has the ability to listen to the station it is one of the finest radio stations in the country and I should definitely not take its its quality for granted. That's where you should contribute. Well thanks I couldn't put it better myself. Well let's dive into the some of the stuff you know want to focus to some extent on your new book The anarchist in the library it's really an outstanding book and it deals with some issues that I think we're all just really having a hard time resolving. You sort of note that in many ways culture has always been a sort of peer to peer kind of architecture that is people relate one to one instead of in a hierarchy and that the Internet in many ways just simply enlarges this ability of people to communicate with each other it's sort of a peer to peer world made larger and faster.

But this is also now clashing with the desire to control all the stuff going through the wires and the you know sort of a redefinition of what information is all about it's information has become property right. Right. And you know that I mean that's what's really dangerous and that's the danger that both Kember and I identified a number of years ago and we're we're both I think thrilled and a little bit alarmed that the issue has grown to such levels of importance. We both were in graduate school in the 1900s worried about trends that we saw affecting music creativity literature and and we saw how the law was likely to shift under our feet. We had no idea that they would reach the absurd extremes that they have today. So my book and Kember's books come out of the fact that we're we're both both basically punk rockers who who saw how the most exciting forms of creativity spread through communities

spread. And artistically spread rise all magically by friends sharing things with friends whether that was cassette tapes or or mimeographed Zients. So when we saw those same behaviors mimicked amplified on the Internet to us it seemed like something to celebrate. And around the same time you know after talking to each other we realized we became interested in the topic around the same time around the early 90s 91 and the watershed moment for me was when this anarchistic sound collage group from the Bay Area negative land was sued by U2 and island its label Island Records and I had been listening to negative lands and there incidentally Ana. I'm a punk rock label named as a city so they shared the same bill with Black Flag and others. And so it just seemed like a very interesting creative project and I'd been listening to them in high school and I had

never once thought about copyrights or I may have but not the way I think about it now. And it wasn't until that lawsuit happened in 1901 that that really motivated me and it wasn't until years later that I was able to really articulate to myself why that basically created an blaze that path the intellectual path that I followed for the best. Like 13 some years and it's because it's because there was a real clash between creativity and freedom of expression and kind of what I saw at the time as very arbitrary way to apply the law. Also incidentally I just recently found out from Negativland member Mark Osler the person who sent. Do you know who sent their record to Utusan manager soon. No I don't. It was our EMS manager. Yeah that was bought in the Athens story I mean we have we have we gathered a bunch of anecdotes throughout our early days being curious about this in which

in which artists the people who are supposed to benefit most from copyright were finding their works threatened their livelihood threatened because they were doing what everybody from Shakespeare to TS Eliot to Bob Dylan had been doing which is building on the works of others. It just so happened that the tools they had at their disposal raised all sorts of red flags to people who were either technophobic or ethnocentric. So you know in Kemper and I got to be buddies through this this research and copyright we found that of course we had grown up at the same time listening to the same bands whether that was Public Enemy or black flag and we and we sensed that there was a spirit that created the coolest stuff in the world and and that spirit was threatened. So now we've immersed ourselves in this from a scholarly point of view which gives us two challenges. One is to one is to make sense of the movement in the most sophisticated high minded way but the other is to get the word out because one of the things we found is that five years ago we were among the very few people raising

concerns about these issues and nobody was really interested. You know I was would I would glass over whenever you talked about copyright we had a publisher saying no one would care about this stuff. Yeah and in 1093 I went to grad school at University of Virginia and I told a professor my interest in copyright and culture and I can still remember him saying copyright Why would anyone be interested in that. Right go ahead. And now now it's you know front page of The New York Times every couple weeks I mean it's it's an amazing thing because now we realize that there's not only money at stake but there's culture and freedom at stake. And and in a global connected world there is nothing more serious than the limitations we put on the ability of people to contact each other. Well you talk about the relevance of copyright and the the passion that people feel over some of these issues if you talk to librarians. Certainly. I mean maybe one doesn't associate passion with librarians but this is something that they are really up in arms about.

Yeah. Well they're passionate when you mess with their business right. That's the that's the amazing thing about librarians is they know more than any other members of our society. What's at stake and what's at risk. When you start messing with the flows of information they have. They have sworn an oath to the ethic of openness. And it seems that both both corporate and government influences now have undermined that ethic. And and so they've been on the front lines they've been on the front lines as long as we have and there are some of our greatest allies in the Senate. Yeah and another thing that should point out and something we'll probably return to later is a lot of these business interests who are trying to restrict these for open flows of information don't realize that. Openness and making money are things that are diametrically opposed. I mean. I mean. Just take the example of the VCR. You know in the 1990s

these early these pro VCR companies and companies that sought for instance want to rent videos of Disney movies which approached Disney and Disney executives would say and you know this is pretty much a direct quote. How would we know how many people are in the living room watching it and how many times could they see it and what they don't realize is that well having kids sit in front of the TV and watch Disney films Little Mermaid etc. over and over and over again creates tremendous revenue flows. So it's not like we're. I mean. Well that's one thing we can add to this because one of things we understand about culture which we wish Hollywood understood about culture is that culture is not a zero sum. Right. The fact that somebody is able to tap into a cultural product or scene or flow for no marginal cost doesn't mean there's no money at the end for somebody. Somebody is always making money. And there may be your high speed modem you know provider maybe

which is usually Time Warner and or AT&T anyway. But but but it and it may be somebody down the line who produces the next version of what you're messing with. But Culture builds itself that way and and the culture industries therefore demand a very ginger very well very light level of intervention from the state unfortunately these days we're going to pretty heavy level of it. Yeah I mean if we followed what the entertainment industry wanted in terms of what it thought was best for it we would have the iPod for instance because in 1990 our Double-A took the rocks I can't remember which company at the time was to court Rio del Rio and Roxanne and and for that matter we'd still be stuck with sheet music. Right in fact the only reason that we have VCR is in our living room is that there was a five to four Supreme Court decision in 94. I mean that's. It really boggles the mind that there was one Supreme Court justice vote away from not having VCR. Incidentally a couple days ago

Senator Orrin Hatch fired filed a bill that would reverse that Supreme Court decision and make companies that produce copying technologies liable for the copyright infringements that occur that should really alarm us and this is what's going on is that people in the West Coast are talking to people in D.C. and riling them up about this supposed emergency because oh my gosh the kids have too much freedom and what they're talking about is reengineering our personal computers making our MP 3 players virtually illegal. And they're worried about driving out some entrepreneurs who happen to be able to make money on this stuff although raises be seen how much money they're making. So we're in this real weird panic mode right now about the future of these entertainment industries and it seems to be to us that they don't really understand what they're doing. And what I think you know scholars like Stephen A and the many other people are probably smarter than me can bring to the table is perspective both theoretical perspective and

historical perspective because all we have to do is just take a step back and take a deep breath and look at the history of the entertainment industry and the history of the entertainment industry is one that. It's grown every time. More openness is allowed. I mean put simply and we can you know provide plenty of examples but do you have any they're always there going to be winners and losers right. Maybe today's winners are tomorrow's losers but but the fact is the U.S. entertainment industry has nothing to complain about these days. They're doing really well despite leaks in the system. And if they want to just leaks in the system there are more humane ways to do it than the methods they've been tried. We have a call to talk with one of include them in a conversation and let me just take a moment to reintroduce our guests were talking this morning about copyright intellectual property fair use technology a variety of issues with regard to the clash between open information and control of information. Our guests are often He's professor of communications studies

at New York New York University. Also Kimberly McLeod professor of communication studies University of Iowa both here in town to attend the crossroads conference. We have a caller on a cell phone let's talk with him. Lie number one. Good morning. I just want to make a few comments. First I wanted to say that the two books I'm sorry but I can't see it I just don't see it. Great. And particularly I read last week the anarchist alive. Thank you. And I want to recommend that book in particular for people who find reading Lawrence Lessig gets a really bogged down. This makes it just less accessible. So I really liked your book together Tom and I want to make one I have. I had a VCR before it was actually before that it was legal. At least it wasn't determined that it is legal to use. And I want to mention that people who believe

or don't believe in conspiracy theory need to be aware that in the entertainment industry there is definitely a conspiracy going on and I'll mention one specific example. If you buy a DVR recorder which also has a personal video recorders like TiVo and it also plays DVDs you cannot make a copy onto your TV you are using it will not transfer a digital surround sound. It will only transfer left right to pass a law based on the number. They have done or they have been intentionally sold and I checked all the brands of PVR that are around they have disabled it give it no input for a digital audio signal and what.

Yeah you're absolutely right what's interesting about that sort of engineering move is that those companies want to be able to dictate to us what our media scripts are going to be like and what our what our surrounding environment going to be. But ever since the Walkman we've grown very accustomed to making our own choices about what goes on our ears what goes in our ears and what fills our room so there is a struggle going on about about who will get to and how we will get to control all of these media flows. And there's also this happened with the yard because I had one of the first Macrovision strippers Paki's to be called the studio stabilizer and I would go into the video store and I would ask people and they would ask from the few discussed the stabilisers right and so we don't just have the entertainment industry. We had an electron. Can we have Microsoft obviously get all of the stuff and well the electronic industry wins both sides right. Because they're selling a CD burners and MP 3 players and the same time they're there working with consort of other electronics users and Hollywood

to make sure that Hollywood gets what it wants so they're trying to. Industry is a very complicated role in this. The one thing I would add is that it's not really conspiracy if if if it's they're still bleating about it right. And I think that's what's really astounding is that they're so audacious. You know another thing I'd like to add and this is something I'm often guilty of of getting bogged down in the minute specifics of technology and I guess what I'm trying to say is a listener out there might be thinking well who cares really I mean about whether or not you can transfer surround sound and it can only get the regular stereo once you dump it to DVD. But there's a there's a bigger issue at stake which is well returning to what I said earlier. In 1984 the VCR was only one Supreme Court vote away from being illegal. And at first again this same listener hypothetical listener I'm talking about might think well big deal you know big Boo-Hoo big Last Best Buy's of the

world but the VCR has been an extraordinarily important device. For to enable a functioning democracy within a media age. Well I mean first of all it's allowed to film scholars television scholars. It's created this tremendous resource for these scholars but more importantly there are organizations like the Media Education Foundation and more generally the media education movement which is about teaching kids the vocabulary of the image and the sound. Because we yes I mean certain kids are like certainly not even traditionally literate. But what we're finding more and more is that they're not media literate. And that's what the media literacy movement is about. And without the VCR it would have been impossible to build this movement because we would have had the tools to basically re mix excerpt and comment on these images that are put out by the media industries and what's happening now is that as we're moving from the analog world

the media industry has lost the battle in the analog world. They lost the VCR battle they lost plenty of other battles. But what they're trying to do is and hopefully not successfully is win the battle in the digital world because they're using the bogeyman of the specter of the Internet and digital the just the digital age more general as a way to justify these claims that have been unproven throughout history that openness means the end of industry. Right. I want to make two very quick comment. One is just as a historical fact. Not only should be taught but the entertainment field but we should note that it was actually the high energy physics community which set up its own archives for up papers didn't have to go through referees journals in fact in the old days there was a court ruling that said you had to put advertising on the bottom of each page of an article published in an in a journal and basically the physics community said we don't need this we can monitor ourselves and we went ahead and that's an example of people

really making making a system of their own from the ground up to evade peacekeepers. Not an optimistic note with me and I'll end with this. All of say is we don't want information wants to be free and it doesn't matter what the industry tries to do. There are hackers and will break through it. We always have and we always will. And what industry has to do is really is to respond with a proper economic incentive for us to want to buy their products rather than to simply take it. That's their problem. They have to do that and then basically we don't photocopy books if the books of muesli price. But when a book's going to court and you know some of the publishers of the book The question of Bach. 25 cents per page and you go in you photocopy it. Once the industry realizes I guess of my economic model we won't have because I don't think people basically deal on the issue of that getting ripped off and that they also are basically lazy and by not going to a

lot of trouble to get it all right. Thank you. I would I would add that my book isn't that expensive so there's really there's really no reason for a copy but if you want to feel free I mean you can. Libraries have it all over the all over the country and that's that's one of the beautiful things we can celebrate about books is that you can read them at no marginal cost because we've decided as a society to subsidize reading and writing in. And we're all better off for it. The previous caller had a good point which is you know that the standard line information wants to be free and it will be free and there will always be hackers. One thing I wanted to add to that is one of the shortcomings of this movement Confederation's people that we've Alan or selves with is that. We some of us tend to speak really really narrowly so it's true that there are going to be hackers that will always break free. But what I think of as and my goal is is to really democratize democratize and open up access so

that you know the people who can enjoy the benefits of open culture aren't just the elite of hackers. Exactly. Yeah. Well I think I also see that in your book you deal with this this last point of the caller quite extensively this the sort of effort on the part of the industry to protect by technical means or or or legal means or whatever means their ownership of their content in ways that people find frustrating and just ridiculous in the you know and not effective either. Yeah. So what they do is they find ways to hack you know the DVD encoding you know put copy protection algorithms at the they put into place because they're ridiculous I think that actually the one of those is like eight lines of code. You know it's just absurd. So this obsessive attempt to control the content meets with not only frustration but actually sort of fosters a disrespect for the very effort to protect the content so what

it actually is counterproductive it is it is and that's what we look at me look five years ago Congress passed this law called the Digital Millennium Copyright Act and it put legal teeth behind a technology that we called Digital Rights Management which basically means bottling up digital content in a particular medium so that only authorized players under certain conditions can tap into that stuff. The DVD is the best example DVDs have digital rights management technology on them. Therefore you can only play them in the players that say DVD on them even though the technology is the same as every CD player. So with that in mind the law says that if you distribute a technology that evades that protection then you're definitely civilly liable and if you sell that stuff you're criminally liable. OK what happens with that well a lot of people have some very good reasons to evade those technologies either because they're there's technological failure the technologies aren't so good and they actually prevent anybody accessing it. Librarians have run into those situations. Sometimes they're using those technologies to bottle stuff up that we

all own stuff in the public domain public facts and so forth. Sometimes we want to take little slices of a of a piece of material and make fair use of it. But they can't because of the digital rights management so what we have is five years down the line since we've been living with this increased regime of digital rights management and the Digital Millennium Copyright Act. Where are we. We're in a situation where there is nothing you can't get on the internet and nothing you can't get on a street corner in. In Hong Kong Shanghai or St. Petersburg or New York City. Right. Digital piracy has not been stopped one bit. The bad guys still get to do everything they wanted to do. The folks who are really suffering are researchers artists librarians scholars teachers students. They're the ones who should be able to make legitimate use of this material. So we've created the situation where the good guys are getting punished and threatened and sued and sometimes jailed. And the bad guys are laffin right. That's the worst possible way to do law and policy.

An example of how the Digital Millennium Copyright Act closes up then or at least. It discourages creativity and scholarship is. I worked as a producer for The Media Education Foundation which quit backstories Foundation a video production house nonprofit that was set up by a professor named such jolly. And it was actually set up after he he had created a video that critiqued sexist imagery on MTV and in back in 1991 he got a cease and desist letter from MTV for copyright and trademark infringement. He set up originally as a way that if you were to be sued he wouldn't be you know he would lose his house. So anyway thanks to MTV for the past 12 years the Media Education Foundation has produced about 100 videos that use imagery from mass media to critique mass media et cetera. So it deals with issues of race and gender nationalism and the only way in which they can make the Media Education Foundation can make

these videos legally is because the United States 1976 Copyright law has a provision that allows for fair use of copyrighted materials for a number of things including educational purposes anyway. What what happened when in 1908 the Digital Millennium Copyright Act came along is that it essentially made fair use a moot point because if we want to and for instance I produced a documentary money for nothing behind the business of popular music for m e f back in 2000 and we had to crack a DVD in order to you know get a particular image. What we did was we broke the law we broke the Digital Millennium Copyright Act because we bypass that technology. The digital rights management that the barrier that is supposed to stop us from copying that material. Well yes it's fair use. The THAT is the end purpose is fair use. But in order to get to that point we broke the law. And that's just an

absurd situation. We've just admitted it on the radio man. I know. Well have you seen this website have I actually. Will anyway. I have to I want to ask you to tell us the story about trademarking freedom expression I know you probably get asked that in every interview but it's just such a great story. Well returning to negative land in one thousand anyone. They were sued and I decided to write a undergrad paper about it now as in the office with my advisor and we're bantering and we came up with the idea of trademarking freedom of speech or expression. Well it's 240 dollars to trademark something. And I was an undergrad miniport grad student just didn't have the money as opposed to you know Fox News or whomever else who can 240 is just a drop in the bucket and they can basically gobble up as many parts of the language as they want. So I finally saved up the money. And in 1998 incidentally which is the same year that Fox News was awarded fair and balanced as a trademark which they later sued Al Franken and his publisher for using in the title of his book. All right.

And fortunately Franken publisher didn't back down and prevailed in court. But anyway back in 1900 one had this idea and fooled around with it finally was awarded in 1998 the trademark. And I knew if I sent out like a press release saying you know. Graduate student at University of Massachusetts is concerned about the intersections of culture power intellectual property law blah blah blah. They would you know it would just be ignored. So I got a friend an old punk rocker for in fact Brandon love to pose as a fictitious publisher of Xen punk rock scene called freedom of expression and I hired a lawyer to send him a cease and desist letter. And I remember before going into the lawyers office a friend said Oh she'll just laugh you out of the office. But you know I went in there with my documentation and it was a very clear cut case. So you know it got some regional media attention and then

that snowballed and like London Guardian picked it up in other places. So later I guess a year ago when AT&T used freedom of expression as the slogan for an ad that it printed an ad in the local newspaper The Daily Iowan. I did the same thing I hired a lawyer and sent a cease and desist letter and that time it got much more play and the point of it is. What the the point of doing these media pranks. Well first of all is to inject a little bit of humor into a movement that can sometimes again as I said get bogged down in technological details and can be humorless but more importantly it's you know it's also a critique of the media. You know I knew I was playing their game I knew that if I had a very kind of simplistic hook that was easy for reporters to wrap their head around and create a nice lead they would jump on it. But and the so that allows me to perhaps get a few more lines in the article where I might be able to engage

in a little bit more sophisticated critique but overall it's just an attempt to get some attention around a particular kind of critique that typically doesn't get as much play in mainstream media. And you know Kember's prank has been immensely effective. It's it's retold by people who encounter absurd situations. Right now you know the state of Texas right the Texas Highway Department is trying to frighten people away from producing bumper stickers and T-shirts that say don't mess with Texas. Right. Because Don't mess with Texas has been there and two litter campaign slogan for about 20 years really successful anti litter campaign. But of course the phrase has entered. The public mind right. It is part of being Texan. So now they're worried because you know people are saying don't mess with Texas and using don't have school taxes for their own purposes and not about litter so they're you know the people in this in the state office who are supposed to be working for the people of the state of Texas are now behaving as if the private

enterprise and this sort of bleed over between public and private interests is something we're concerned about. And every time that people bring up one of these absurd situations somebody says I remember that guy who trademark freedom of expression. Remember that that was a great joke that was a great prank. And these sorts of nuggets stick in the public mind and really bring things out in the open because if you just talk about it at the surface and you get swept along in this Mad Mel stream of privatization talk you don't actually realize how stupid it all seems so every once in a while you need some of the Kember to come in and shake everybody up. You know what I heard Al Franken discussing his little Court episode with Fox News taking him to court over that. His use of the phrase fair and balanced in his book cover and the way he described it you know people say well you got laughed out of court. You know as a as a sort of expression well in his case it really did get laughed out of court the judges simply laughed it out. Yes and dismissed the case. You know on his face but the the problem is. OK. His publisher had

lots of money into vite that success whereas most people wouldn't be able to do that exactly you know Kember had a lot of knowledge so he could mess with that and do that plan. Frank he had more knowledge and he had $240 right. That's way to go. Al Franken has a big publisher. You can you can talk about times when people are able to exploit the loopholes in these laws for the sake of freedom of expression. I'm sorry. When and if they work for big companies. Right. So so Hollywood itself exploits fair use whenever they can and they and they exploit the public domain as much as they can and they do a great job at it because they have the lawyers who can play both sides. But everyday people don't the kid in his garage with a mini synthesizer doesn't the guy with Pro Tools who's making some amazing collage is not in that sort of situation. The daycare center that wants to put Donald Duck and Mickey Mouse up on the wall and gets a cease and desist letter from Disney. They don't have the wherewithal or the high priced lawyers to make a stand on that sort of thing. So we're we've been very busy trying to

get the word out that. The American people have to be really sick and tired of this of this creeping excess and I think we're actually getting there. I think we have a movement going now that we didn't have five years ago. And it's it's a it's a sort of distributed movement it's it involves artists involves pranksters librarians librarians teachers religious people religious communities who are all sick and tired of these excesses and they're just starting to meet up with each other and using the Internet to meet up with each other. And you could call it a free culture movement you could call it I don't know there are a bunch of phrases phone around for it but basically Congress pretty soon is going to start to realize that they've gone too far by doing everything that Hollywood wants at the expense of the American people. And there are examples of the quote unquote little people who have been able to successfully stand up and use the fair use defense or even just invoke it and as kind of a barrier that's it. Makes overzealous copyright shy away. One example is Carrie McLaren

the publisher of a great little scene called stay free in New York and she's a she's a high school teacher in Brooklyn and she does this magazine. I don't think it's ever turned a profit I mean she just does it out of love. That's the kind of the definition of ezine Xena's short for a magazine and has its roots in punk rock communities in the 80s but anyway she mounted this thing called the illegal art show which was originally just one show that collected lots of Orcus of art that had either been at the receiving end of a lawsuit or a cease and desist letter or a work of art that had been taken down by a gallery because the gallery was just concerned that it could get a cease and desist. So that that negative land album cover that. The album cover of the record that had received the cease and desist letter is on display along with lots of other great works like Tom Forsyth's food chain bar photographs series. He received a lawsuit he was at the end of lawsuits

from Mattel who said that they that he violated their trademarks. He eventually prevailed. He unfortunately spent about two hundred thousand dollars in court out of his own pocket and that's just with pro bono lawyers that means lawyers who are willing to essentially donate their time for free. But the cost of getting expert witnesses and all sorts of other expenses pile up. But fortunately Carrie McLaren when she mounted this show which eventually turned into a traveling art show which hit Chicago Washington D.C. Philadelphia and eventually S.F. moment San Francisco and also continues to have a web presence online. It never received a cease and desist letter because she kind of called their bluff in kind of a very politicized prank if you will in the Dodd tradition. She is she forced these intellectual property owners overzealous copyright poses into a catch 22 where if they sued them she it would be really bad publicity for them. But if they

tolerated today it's existence. It set a precedent that it created more elbow room for freedom of expression in the arts. And so she Carrie McLaren is using the cultural power she has and the knowledge power she has she doesn't have the bucks either. So you've got to have basically two of those three things to be able to live as a full cultural citizen these days. We just have about maybe 12 minutes left with our guest I want to take a moment. First of all to pass along some news that I was asked to. To announce GOP sources say Illinois Republican Jack Ryan plans to scrap his Senate campaign bid sex related allegations as sources who spoke on condition of anonymity say a formal announcement is expected within hours so there is there is that. And also to reintroduce our guests we're talking for in the next few minutes we have just about 12 minutes left talking about copyright intellectual property and fair use with Seaver Vadi an author and professor of communication studies at New York University and Kimberly McLeod professor of communication studies University of Iowa. And if you'd like to join us in the time remaining. The number again around champion Urbana 3 3

3 9 4 5 5. Toll free elsewhere. 800 2 2 2 9 4 5 5. Can I just say what a shame it is that something so petty would drive someone out of public life. I mean didn't we just go through that like five years ago where something yeah that is part of someone's private life. Nearly Destroyed an agenda that might have made a difference in public life. Yeah I mean hey I'm a biggest Obama fan in the world but this guy had something go on between him and his wife and it's none of our business and the Republicans have really sewed a really ugly garden here. Yeah you know I'm tempted to go into that tangent but it's a long one. Well I'm in Illinois on the radio I'm going to take Ok take my shot. Well thanks for that but I really wanted to ask in the time remaining to talk about what is this thing we call culture because I think and actually there's a there's a phrase that you have in your book. Civa the anarchist in the library. I'm going to probably not be as articulate as you but it has to do with. Culture is not

necessarily the products of art and literature and the things that we see on the shelves. It's everything that went before that right. Culture is sharing right culture is culture happens in a circle. It's what happens when people connect with language or with sight or sound or or taste and culture only matters when you share it right. Culture doesn't matter when you keep it locked up in your house or your garage or your museum your private collection your gated community. That's not culture that's merely an object. But once you've let it out and you've let people make meaning with it then it has real value. So the culture industries are in this sort of paradoxical situation. They want to create artificial scarcity so they can charge money for it. And who could blame them. At the same time they have to recognize that their material is only good if people can mess with it. Run through their minds in their lives and expose it to the light of day. And when that happens something cultural occurs. That's

really an important distinction. Yeah going back to the culture industries I mean take the example just refer back to it as Steve was talking about Nike Nike Nike Corporation doesn't own any factories it really just owns its office buildings pays its staff but its value economic value lies in that swoosh in the years and years of capital it spent marketing itself. So Nike wants us to be very familiar with the swoosh. Nike wants us to be its friend but it's a very obviously one sided relationship it's a very like you know money training selfish relationship. But the point is so the Nike in order to be successful has to saturate itself. It's it's the ideas that are connected to it. Throughout the culture. But that's as far as they want us to go. They don't want us to then talk back to it they don't want us to. As soon as we take that solution you know replicate it in a

critical context that's when the cease and desist letter comes or the lawsuit. We have a caller to talk with listen include them in our conversation listener in Indiana. Lie number four. Good morning. Morning. If there is what limits. Fair use Mister isn't what makes it have learned as well that the really frustrating and yet beautiful thing about Ferrie is there are no firm limits. It's a context based question and it's situation by situation. So for instance if you if you want to take a piece of a haiku you can't take very much of it before you've taken the whole thing. And if someone sued you over it your defense and fair use is really only a defense in court right. Your defense would be. I only took what I needed to make commentary about it or make fun of it. But if you're talking about you know you know my book which is 250 pages you could take a fair number of pages before a court would

say wait a minute you've really infringed on the sky's copyright now. There are actually four factors that are that dominate fair use discussions. The first is the nature of the original work whether it was nonfiction which is supposed to flow freely in the in the community so we can have discussion and debate or faction like a telephone book from Sackler. Right so a newspaper has has a lower level of protection than a poem essential in or song. The second is the the way that you use the work whether you are using it for profit or not. Thirdly is what's the third. After the third is the amount of the work relative to the whole. Yeah so you have. You can't really take more than you really need to take to make your point. And the fourth is the effect on the potential market of the original work. So if you're taken something if you want to assign a chapter of my book in a classroom and you took you know one chapter out of I don't know how many chapters even have live in the 11:00 Okay write one chapter out of 11 then then you're probably going to fly below radar. If you start use

in you know 12 of those 10 of those chapters then if I were to suit you I would have a much better case. And this is important. It's not like a yes no checklist where if you lose one of those categories if you if one of those categories does not go in your favor it's automatically not a fair year so you know at the most famous example is probably 2 Live Crew Supreme Court case where they essentially stole from Roy Orbison's Pretty Woman and created their own parody and they had to you know parody by nature you have to take a lot of the original because that's the nature of parody. But the Supreme Court ruled that even though it was for profit rule it out as being a fair use and also another important category is that fourth category does. Does the derivative work does work that does that that second work that came along. Does that usurp the

First's in the marketplace. So and in that case and in a lot of other cases the answer is No I mean no one in their right mind is going to buy 2 Live Crew's version of Pretty Woman as a substitute for a royal worsens. Exactly. But you know what's crazy about the Fair Use situation what's useless about fair use is that you don't know the answer to your question is it fair use until you've been sued and you hired a lawyer and you went to court. So thousands of dollars and months later you might find out if what you did was fair use. So a lot of what goes on in the Fair Use world is hope and faith but we assume that what I do in the classroom when I show a movie on the screen is fair use. But we don't actually know unless I get sued by movie studio for public performance. At that point have to go to court defend myself and if there's no precedent that speaks right to that issue I might be in big trouble I have to create precedent. That's the way the law works. Yep so I mean what we find ourselves we find ourselves in the situation of typically three things. Freedom of expression is constrained when

well obviously we get sued and we back down. Or. Or more importantly our employers because most of us work for people whether they be universities or Time-Warner. So number one we find ourselves sued and we are an employers back down. Number two we just received a cease and desist letter which is not the same as a lawsuit it's just basically a bullying threat letter that's really cheap for legal departments that does need to send out and we back down number two that's another example of how freedom of expression gets constrained. And then the other unfortunates and this doesn't have to with fair use. But another unfortunate situation is when laws like the Digital Millennium Copyright come along and and actually do constrain the ways in which we can legally express ourselves. We just have about three minutes left I'm sorry there's much more we like to talk about. But I guess I want to get back to the thing about what is culture and what has changed in our legal system and our attitudes about ownership of information that is so

troubling a century ago people felt less constrained to share songs ideas lyrics etc.. What is you know what has happened in our law or our ideas about these things since that time that makes it so so difficult. Well I'm sorry. Just I mean in a nutshell this neo liberal ideology of privatization that it's actually good to put things in private hands because in private hands culture or public land or whatever can be better maintained which we see time and time again isn't true. Yeah and then combine that with the fact that the very industries that would argue for absurd levels of control happen to be richer than ever they got richer or never over under through the old system. Right the American film industry built itself by stealing scripts from novelists. The American printing industry built itself by stealing novels from England. Right so these are pirate industries. The software industry the same way Microsoft never had a good

idea in the entire history that kind of body. They've written other people's ideas so the loose parts of the copyright system the holes in the corporate system have built these great industries. Now they're turning around and saying let's let's shut the door and not let anybody else develop and thrive. I'm sorry to say we're going have to stop or at the end of our time there's much more we could talk about and I will suggest for folks if you'd like to know more on this topic certainly look for the book by the last voice Eva Vadi an author and our guest the anarchist in the library how the clash between freedom and control is hacking the real world and crashing the system. Just published by Basic Books our other guest Kimber McLeod professor of communication studies University of Iowa. And you've got a book coming out in a few months. Yeah in February it's called freedom of expression. OK. Well we'll hopefully talk with both of you get in the future and thanks so much for being here. Thank you. Thank you.