Death, Ownership, and Freedom in America

Peter+Paul++MaryWhen will we ever learn?

Peter, Paul and Mary have been on my mind. But I remembered it wrong. The lyric is really “When will they ever learn,” with a distancing I find inauthentic. I’m more inclined to wallow in mutual guilt than to point a crooked finger at my neighbors. So I’ll hum along and substitute as necessary to remain in step with myself and out of step with the rest–just like reciting The Lord’s Prayer with those bloody Anglicans. What’s with “you?” I address my deity as “thou.” Always have, always will. Until death do us apart . . . or together, as the case may be. All of which is beside—as in next to but not quite on top of—the point, which is really about death, ownership and freedom perhaps, but not necessarily, in that order.


It started with death, a death, the death of Aaron Swartz, described by the New York Times as “a wizardly programmer,” who had much to do with the development of RSS (whatever that is). Alan faced charges of fraud that could have netted him 35 years in prison because, like others among us, he felt that information wanted to be free. So he broke into JSTOR through the MIT computer networks and collected millions of documents, planning to release them to the public. JSTOR declined to prosecute, but the U.S. attorney wouldn’t let go. “Stealing is stealing . . .” chanted Carmen M. Ortiz (who, as a lawyer, should know about these things). So fragile, tough, beautiful, anarchistic Aaron (who looks a lot like my son) was arrested and awaiting trial when his life became too much to bear. He hanged himself in January, 2013.


Flash forward to April of the same year and we find Scott Turow announcing “The Slow Death of the American Author.” (Now here’s a guy who knows how to write an attention grabbing headline and did you know that he went to law school just like that other guy who makes a lot of money selling lies?) Turow should know of what he speaks, and that is the erosion of copyright protections for U.S. authors.

Evidently the in April of the same year the Supreme Court ruled against U.S. textbook publishers who didn’t want the cheap copies they sold abroad to be resold in the U.S. Under the “first sale” doctrine, the buyer of a copyrighted work has the right to resell it without permission of the copyright holder. Without this used bookstores would be in a world of pain. Publishers argued that this doctrine didn’t apply to the resale of their cheap foreign editions, but the court ruled that it did. No big deal, really, but when you add it to Google’s digitizing of works still under copyright Mr. Turow sees his royalty checks trickling down the gurgler.

Flashback to 1789. The US Constitution instructed Congress: “thou shalt promote the progress of Science and the useful Arts (as if any were not) by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The “copyright clause,” at it is popularly known has two key elements: “promoting progress” and “limited time.” Both sound good, but their definition has kept lawyers busy for a good long time. Speaking of which, the Copyright Act of 1790 set “limited time” at 14 years with right to renew for another 14  if the copyright holder is still alive (and therefore able to benefit from the copyright).

This worked well until 1906, when Samuel Clemens (aka Mark Twain) wanted to make some serious money from his writing. So he dressed up in his best white suit and sashayed over to persuade Congress to extend copyright protection to 50 years past the author’s death. Evidently Twain wanted a secure future for his daughters. (He didn’t really care about his grandchildren.)

Then along came Sonny Bono, who introduced a bill in 1998 that came to be known as the “Mickey Mouse Protection Act.” Formally the Copyright Term Extension Act, this bill extended copyright to life of the author plus 70 years, except in the case of corporate authorship in which case it extends 120 years after the work’s creation. The CEOs at Disney were leaping with glee as they could now keep all those old Mickey Mouse movies out of the public domain. Poor old Sonny skied into a tree before his brainchild could become law. Lots of death in this ownership business, which brings us to . . .


Fast forward to the information age, when information tends to be expensive but information wants to be free and people want to be rich but people want to be free and lives are at stake. Aaron Swartz might if he still could, ask “Do you want to be rich? Or do you want to be free?”

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