lawsuit. The right to express one’s views is what makes these “copy fights” first and foremost a free-speech issue. Unfortunately, many intellectual-property owners and lawyers see copyright only as an economic issue.
By using intellectual-property law as a thread that ties everything together, I gather what may seem to be a wild array of subjects: hip-hop music and digital sampling; the patenting of seeds and human genes; folk and blues music; education and book publishing; the collage art of Rauschenberg and Warhol; filmmaking, electronic voting, and the Internet. However, all of these topics are connected to the larger trend of privatization—something that pits economic values against the values of free speech, creativity, and shared resources. The latter aren’t airy dreams. They’re the very reasons why the framers of the Constitution established copyright and patent law: so that society would benefit from a rich culture accessible to all. Thomas Jefferson and the other Founding Fathers were
thoughtful, and got it right.
They articulated a theory of intellectual-property law that rewarded authors and inventors for their creativity, but they did not intend the law to be so rigid that it would give creators (and their heirs) complete control over their work. In the influential 1984 Betamax case that legalized the VCR, Supreme Court Justice John Paul Stevens reminded us of copyright’s Constitutional mandate. He made clear that the monopoly power of copyright was designed
first and foremost to benefit society by stimulating new creative works. Copyright’s purpose, he argued in the majority opinion, is not to provide a special private benefit to an individual or corporation.
“Rather, the limited grant is a means by which an important
public purpose may be achieved,” wrote Stevens. “It is intended to motivate the creative activity of authors and inventors by the provi-McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 10
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FREEDOM OF EXPRESSION®
sion of a special reward, and to allow the public access to the products of their genius after the limited period of exclusive control has expired. The copyright law, like the patent statutes, makes reward to the owner a secondary consideration.”5 Despite Hollywood’s fears, it turned out that the VCR generated more money for movie studios. Box-office revenues have continued to rise since the 1980s—
even in the age of digital downloading—and video rentals and sales now generate twice as much money as box-office receipts.
Since this 1984 decision, the hypnotic drumming of privatiza-
tion has grown louder and more persuasive. Some pundits believe it makes sense to place as many things as possible under the control of property owners, because it would be best for business. This is a false assumption, and it is filled with many dangerous trapdoors.
The risk we face today is that the free exchange of ideas could be halted by recent trends in intellectual property—with dire consequences for creativity and the human spirit. This book documents a Lord of the Rings– size battle between a more than two-hundred-year-old tradition that encourages openness and the total monopoly control that many copyright protectionists advocate. It’s also a story about how activists aren’t letting the erosion of our freedoms happen without one smackdown of a fight. The situation isn’t
hopeless, though there are plenty of areas where the conflict is getting worse for freedom of expression®. We still have a way to go.
ONE LAST THING
To address an issue I’m sure will be raised: No, I wouldn’t mind earning some extra income from this book’s sales, as I’ve accrued massive student-loan debt over my decade of higher education.
However, I thoroughly approve if you copy this book for noncommercial uses. The point of copyright law is to provide limited incen-McLe_0385513259_7p_all_r1.qxd 12/7/04 11:28 AM Page 11