Monday, October 18, 2004
Regulating the Attention Economy
[I apologize if this gets a little "Adbusters" at times - it's late, and I've been wearing my tinfoil hat for several hours.]
"In the future everyone will be famous for fifteen minutes."
- Andy Warhol
In Michael Goldhaber's vision of the Attention Economy [1], attention is recognized as a commodity involved in countless non-monetary transactions in everyday life. Goldhaber argues that the Net brings the value of attention to the forefront of economic analysis, and that the attention economy will play a determinative role in directing economic activity in the Internet society. But his paper leaves the reader with very little sense of what this new economy will look like or what kinds of regulations might be appropriate in order to protect human and cultural interests that might be valuable for the preservation of civil society. The emergence of attention as a recognized commodity, and various rights that might accrue to a person with respect to his or her attention, may create new economic pressures that would displace some of the benefits envisioned by Goldhaber's paper. Without a clear view of how the newly prized commodity of attention could be protected against exploitation, it is difficult to wholeheartedly embrace Goldhaber's rosy scenario. In this paper, I attempt to identify a few ways we might protect attention from misappropriation.
Several legal doctrines could conceivably be extended to recognize the economic value of attention. The tort of invasion of privacy, an invention of the twentieth century, was famously characterized by Louis Brandeis as protecting "the right to be left alone". It is often balanced against other valued forms of autonomy, such as freedom of speech, in determining whether a particular form of communication encroaches too far upon the receiver's solitude. The property rights protected by the torts of trespass and trespass to chattels play a similar role - Intel Corp. v. Hamidi (Cal., 2003), which involved unwanted emails sent through the plaintiff's servers, played out as a trespass to chattels case and ended up turning on the economic value of the plaintiff's employees' time and attention. Several pieces of federal and state legislation have created rights of action against initiators of unsolicited phones calls, faxes, and emails; in each case, the countervailing consideration is the constitutionally protected nature of commercial speech and its ostensible role of informing citizens about the existence and nature of market commodities. False advertising and unfair competition law proscribes the right of advertisers to mislead, just as defamation law circumscribes misleading speech generally. But as advertising has shifted away from factual claims and toward vague associations in the last fifty years, such proscriptions are less effective at reducing the power of advertising. However, as this gap between the ostensible importance of protected commercial speech and the its actual vapidity continues to expand, it may open wide enough to allow legal challenges through on some theory of misappropriated attention.
Along a separate track, the psychological effects of the media environment may someday provide a platform for legal rights to psychological well-being. Media theorists like Marshall McLuhan and Neil Postman have argued that our psychological functions are significantly determined by the nature of the media that surround us, shaping everything from our self-image to our social relations to our political institutions. It's difficult to imagine a legal foundation on which to oppose such effects - one can imagine individual billboards or television commercials being banned because of indecency or because their distractive effect creates unsafe driving conditions, but the long-term psychological effects of a distracting media environment resemble the market externalities of environmental pollution; they probably won't be addressed in the absence of a mainstream "mental environmentalism" movement like that advocated by Kalle Lasn and others in the anti-advertising community. [2]
All of these legal approaches hinge on the treatment of media effects as something more than speech and instead as some combination of speech and act capable of distracting the human mind against its will (whatever that means - the disconnection between legal theory and psychological theory is too expansive a topic for this paper). The courts seem increasingly willing to regard some forms of online communication as such a hybrid (see e.g. the DeCSS case), but their willingness is premised on the effect of such communication on computer systems, not on the human mind. [3] If some theory of misappropriation of attention were sought, where would we begin? How could we find a medium of communication that crosses the line from speech to act, directly manipulating the human mind the way the machine coded "speech" of DeCSS manipulates the flow of information through a multimedia computer?
----
"Television is for appearing on - not for looking at."
- Noel Coward
The attention economy has long been recognized as a reality by sophisticated market actors, albeit often under a different name. Goldhaber states that "Contrary to what you are sometimes urged to believe, money cannot reliably buy attention"; however, contrary to Goldhaber's dismissal, companies are happy to spend a significant percentage of their operating budgets on marketing their products and services, and they increasingly recognize the value of developing and promoting brands for their own sake, independent of any affiliation with a particular product or service - how much of a return they see on this investment in attention is an open question. The tech boom of the late nineties saw the acme of this brand mania, with billions of dollars of capital flowing into ventures that boasted no assets aside from a potentially valuable brand. Even now, consumer-driven industries are acutely sensitive to the management of their established brands, maintaining extensive guidelines about the use of company trademarks: to take an extreme example, Ruth Shalit has reported on the precise specifications for the personality and appearance of imaginary mascots like the Jolly Green Giant and the Pillsbury Doughboy [4]. Although Goldhaber makes a compelling argument that the Net tilts the balance of power - and attention - away from the big spender and toward the innovator, the degree of this shift remains to be seen. Much of this analysis depends on whether the uses of the Net that predominate in the coming decades are primarily "pull" media, like the hypertext World Wide Web, which require active continued interest on the part of the receiver; or "push" media, like spam or television, that rely on inertia or distraction for the delivery of their message. [5] Push media do a much better of defeating Goldhaber's principle that "someone who wants your attention... has to be interesting"; this is what makes television advertising the sine qua non of the misappropriation of attention.
Television has long been criticized for its insidious health and psychological effects. Jerry Mander's Four Arguments For The Elimination of Television, Neil Postman's Amusing Ourselves To Death, and Jane Healy's research on television's neurological effects all characterize television as narcotizing and disempowering. [6,7,8] Healy highlights the trance-like neurological state brought on by optical fixation on television's cathode-ray flicker, and recent findings on television's effects on photosensitive epileptics lend some credence to the idea that television radiation may have direct, serious neurological effects on medically normal viewers. [9] Mander and Postman focus more on structural arguments, pointing out the consolidation of power brought on by one-to-many broadcasting and the degradation of discourse resulting from television's predisposition toward visual, fast-paced content.
If such claims are credited, television could act as a ligament between speech and act for legal theory as applied to the psychosocial effects of media. If that gap were bridged, a whole new landscape would open up for legal protection against the non-informative effects of communications media: not just distraction, but all manner of unpleasantness currently treated (if at all) by obscenity statutes and restrictions on various forms of advertising. Such a legal regime might result in a world where individuals retain control over the switch closest to their brain: the perceptual system itself. Whether this would produce free thinkers or blinkered solipsists is up for debate.
----
[1] Michael H. Goldhaber, The Attention Economy: The Natural Economy of the Net, First Monday, April 1997
http://firstmonday.org/issues/issue2_4/goldhaber/index.html
[2] Mindfucked: Kalle Lasn on toxic culture, mental environmentalism, and running shoes
http://www.eyeteeth.blogspot.com/2003_08_24_eyeteeth_archive.html
[3] Universal City Studios, Inc. v. Corley, No. 00-9185 (CA2, November 28, 2001)
[4] Ruth Shalit, The Inner Doughboy, Salon.com, March 2000
http://dir.salon.com/media/col/shal/2000/03/23/doughboy/index.html
[5] Push Media, from TheFreeDictionary.com
http://computing-dictionary.thefreedictionary.com/push%20media
[6] Jerry Mander, Four Arguments For The Elimination Of Television, Morrow, 1978
[7] Neil Postman, Amusing Ourselves To Death, Penguin Books, November 1986
[8] Understanding TV's Effects on the Developing Brain, Jane M. Healy, May 1998
http://www.aap.org/advocacy/chm98nws.htm
[9] Photosensitive Epilepsy, Carly Cenedella, 1999
http://serendip.brynmawr.edu/bb/neuro/neuro99/web1/Cenedella.html
"In the future everyone will be famous for fifteen minutes."
- Andy Warhol
In Michael Goldhaber's vision of the Attention Economy [1], attention is recognized as a commodity involved in countless non-monetary transactions in everyday life. Goldhaber argues that the Net brings the value of attention to the forefront of economic analysis, and that the attention economy will play a determinative role in directing economic activity in the Internet society. But his paper leaves the reader with very little sense of what this new economy will look like or what kinds of regulations might be appropriate in order to protect human and cultural interests that might be valuable for the preservation of civil society. The emergence of attention as a recognized commodity, and various rights that might accrue to a person with respect to his or her attention, may create new economic pressures that would displace some of the benefits envisioned by Goldhaber's paper. Without a clear view of how the newly prized commodity of attention could be protected against exploitation, it is difficult to wholeheartedly embrace Goldhaber's rosy scenario. In this paper, I attempt to identify a few ways we might protect attention from misappropriation.
Several legal doctrines could conceivably be extended to recognize the economic value of attention. The tort of invasion of privacy, an invention of the twentieth century, was famously characterized by Louis Brandeis as protecting "the right to be left alone". It is often balanced against other valued forms of autonomy, such as freedom of speech, in determining whether a particular form of communication encroaches too far upon the receiver's solitude. The property rights protected by the torts of trespass and trespass to chattels play a similar role - Intel Corp. v. Hamidi (Cal., 2003), which involved unwanted emails sent through the plaintiff's servers, played out as a trespass to chattels case and ended up turning on the economic value of the plaintiff's employees' time and attention. Several pieces of federal and state legislation have created rights of action against initiators of unsolicited phones calls, faxes, and emails; in each case, the countervailing consideration is the constitutionally protected nature of commercial speech and its ostensible role of informing citizens about the existence and nature of market commodities. False advertising and unfair competition law proscribes the right of advertisers to mislead, just as defamation law circumscribes misleading speech generally. But as advertising has shifted away from factual claims and toward vague associations in the last fifty years, such proscriptions are less effective at reducing the power of advertising. However, as this gap between the ostensible importance of protected commercial speech and the its actual vapidity continues to expand, it may open wide enough to allow legal challenges through on some theory of misappropriated attention.
Along a separate track, the psychological effects of the media environment may someday provide a platform for legal rights to psychological well-being. Media theorists like Marshall McLuhan and Neil Postman have argued that our psychological functions are significantly determined by the nature of the media that surround us, shaping everything from our self-image to our social relations to our political institutions. It's difficult to imagine a legal foundation on which to oppose such effects - one can imagine individual billboards or television commercials being banned because of indecency or because their distractive effect creates unsafe driving conditions, but the long-term psychological effects of a distracting media environment resemble the market externalities of environmental pollution; they probably won't be addressed in the absence of a mainstream "mental environmentalism" movement like that advocated by Kalle Lasn and others in the anti-advertising community. [2]
All of these legal approaches hinge on the treatment of media effects as something more than speech and instead as some combination of speech and act capable of distracting the human mind against its will (whatever that means - the disconnection between legal theory and psychological theory is too expansive a topic for this paper). The courts seem increasingly willing to regard some forms of online communication as such a hybrid (see e.g. the DeCSS case), but their willingness is premised on the effect of such communication on computer systems, not on the human mind. [3] If some theory of misappropriation of attention were sought, where would we begin? How could we find a medium of communication that crosses the line from speech to act, directly manipulating the human mind the way the machine coded "speech" of DeCSS manipulates the flow of information through a multimedia computer?
----
"Television is for appearing on - not for looking at."
- Noel Coward
The attention economy has long been recognized as a reality by sophisticated market actors, albeit often under a different name. Goldhaber states that "Contrary to what you are sometimes urged to believe, money cannot reliably buy attention"; however, contrary to Goldhaber's dismissal, companies are happy to spend a significant percentage of their operating budgets on marketing their products and services, and they increasingly recognize the value of developing and promoting brands for their own sake, independent of any affiliation with a particular product or service - how much of a return they see on this investment in attention is an open question. The tech boom of the late nineties saw the acme of this brand mania, with billions of dollars of capital flowing into ventures that boasted no assets aside from a potentially valuable brand. Even now, consumer-driven industries are acutely sensitive to the management of their established brands, maintaining extensive guidelines about the use of company trademarks: to take an extreme example, Ruth Shalit has reported on the precise specifications for the personality and appearance of imaginary mascots like the Jolly Green Giant and the Pillsbury Doughboy [4]. Although Goldhaber makes a compelling argument that the Net tilts the balance of power - and attention - away from the big spender and toward the innovator, the degree of this shift remains to be seen. Much of this analysis depends on whether the uses of the Net that predominate in the coming decades are primarily "pull" media, like the hypertext World Wide Web, which require active continued interest on the part of the receiver; or "push" media, like spam or television, that rely on inertia or distraction for the delivery of their message. [5] Push media do a much better of defeating Goldhaber's principle that "someone who wants your attention... has to be interesting"; this is what makes television advertising the sine qua non of the misappropriation of attention.
Television has long been criticized for its insidious health and psychological effects. Jerry Mander's Four Arguments For The Elimination of Television, Neil Postman's Amusing Ourselves To Death, and Jane Healy's research on television's neurological effects all characterize television as narcotizing and disempowering. [6,7,8] Healy highlights the trance-like neurological state brought on by optical fixation on television's cathode-ray flicker, and recent findings on television's effects on photosensitive epileptics lend some credence to the idea that television radiation may have direct, serious neurological effects on medically normal viewers. [9] Mander and Postman focus more on structural arguments, pointing out the consolidation of power brought on by one-to-many broadcasting and the degradation of discourse resulting from television's predisposition toward visual, fast-paced content.
If such claims are credited, television could act as a ligament between speech and act for legal theory as applied to the psychosocial effects of media. If that gap were bridged, a whole new landscape would open up for legal protection against the non-informative effects of communications media: not just distraction, but all manner of unpleasantness currently treated (if at all) by obscenity statutes and restrictions on various forms of advertising. Such a legal regime might result in a world where individuals retain control over the switch closest to their brain: the perceptual system itself. Whether this would produce free thinkers or blinkered solipsists is up for debate.
----
[1] Michael H. Goldhaber, The Attention Economy: The Natural Economy of the Net, First Monday, April 1997
http://firstmonday.org/issues/issue2_4/goldhaber/index.html
[2] Mindfucked: Kalle Lasn on toxic culture, mental environmentalism, and running shoes
http://www.eyeteeth.blogspot.com/2003_08_24_eyeteeth_archive.html
[3] Universal City Studios, Inc. v. Corley, No. 00-9185 (CA2, November 28, 2001)
[4] Ruth Shalit, The Inner Doughboy, Salon.com, March 2000
http://dir.salon.com/media/col/shal/2000/03/23/doughboy/index.html
[5] Push Media, from TheFreeDictionary.com
http://computing-dictionary.thefreedictionary.com/push%20media
[6] Jerry Mander, Four Arguments For The Elimination Of Television, Morrow, 1978
[7] Neil Postman, Amusing Ourselves To Death, Penguin Books, November 1986
[8] Understanding TV's Effects on the Developing Brain, Jane M. Healy, May 1998
http://www.aap.org/advocacy/chm98nws.htm
[9] Photosensitive Epilepsy, Carly Cenedella, 1999
http://serendip.brynmawr.edu/bb/neuro/neuro99/web1/Cenedella.html
Sunday, October 10, 2004
Superheroes
Alienation is a definining characteristic of urban life. The urge to reach out to people around us -- out of loneliness, compassion, lust, or the urge to share (or share in) something interesting, funny, or important -- is thwarted by the wariness of our neighbors, or by social roles we adopt to negotiate the thousand daily faceless encounters that comprise modern urban existence. Rarely is this alienation stronger than when we witness someone else in distress and our lack of self-assurance, our unwillingness to invade personal boundaries, or our skepticism keeps us from intervening. These missed opportunities haunt us, not only with guilt over our failure to reach out to a fellow human being in need of help, but also with lingering concern and curiosity after the victim has disappeared back into the crowd.
The first time I can remember feeling this way, I was in grade school. I was riding in the car with my mother on a highway through the Washington suburbs. As we zipped by a row of houses, I glanced a split-second scene out the passenger-side window: a middle-aged man, heavyset,standing in a driveway next to a car, held a woman (his wife?) by the arm and raised his other fist as if to strike down upon her, while the woman fell back against the open door of the car and raised her arms in a protective gesture. One frozen instant, then the tableau vanished from sight back behind us at sixty miles an hour. My heart beat fast in my chest, and I peered back in vain, trying to conjure back the violence of that moment, trying to find some conclusion. Turning to my mother, it was clear her eyes hadn't left the road -- I carried that image alone. Immediately, I began to second-guess myself: had I seen what I thought I had? I knew that a second glance at a strange sight often transformed it into something commonplace: a man with a missing arm became, at second glance, a fully-limbed man with one arm obscured behind his back. But here there was no time for a double-take. I could say something to my mother -- but what? To get off the highway, turn around, try to find our way back to that driveway, and then... what? Instead, I turned my eyes back to the window and sat silently through the rest of the ride, consumed with guilt, self-loathing, and anxiety. The image still haunts me, that scene out of a comic book, the stark lines of the assailant's raised arm and the cowering form of his victim under his looming shadow; that moment of violence that might not have ever been.
My second such unbracketed encounter came years later, in high school. My parents were out of town, and I was alone in the house. I put out the recycling on the street early in the evening and noted a young woman leaning, smoking, against a sporty black sedan with Maryland plates parked right in front of our townhouse. (At age seventeen, I had a flawless memory for attractive blondes in their twenties.) Much later that night, lying in my parents' bedroom on the second floor, I heard an agument outside through the windows overlooking the street. Two men and the woman. The men disagreed over how drunk one of them -- the woman's brother -- was, and whether he could drive them home safely. The second man accused the brother of risking his sister's life. He finally declared that he was going to walk to Florida Avenue and get a cab. He invited the sister to come with him. She declined. After the man left, the brother and sister continued to argue, in lowered voices. She said something to enrage him.
Watching through the screen window, I could only see silhouettes in the streetlight through the leaves of the pear tree. But I saw him go to the trunk of the car and take out something small that he held in his hand. He put his other hand to it and pulled back; and it made a hard, mechanical, metallic sound. He pointed it at his sister's face. Their voices dropped to stage whispers, desperate.
"Hey! What's going on out there?" My voice dropped two octaves and burst through the tense silence. The moment of crisis dissolved. The man lowered his arm. The stage whispers continued.
I went downstairs and turned on the porch light. I called the police and told them there was a man with a gun outside, pointing it at someone.
I went back upstairs where I could see them through the window. They had gotten into the car. They left before the police arrived.
A few minutes later I went out to the street, looking for some clue to their identity. Nothing remained in the empty parking space but a patch of broken safety glass from some long-ago car stereo theft. I checked the police blotter the next day in the paper. Nothing.
The figure of the superhero represents the impulse to insert oneself into a witnessed crisis or confrontation. The superhero's defining moment is his descent into the midst of a crisis: the climax of a bank robbery, a schoolbus accident, an assault, or a bridge collapse is interrupted by the appearance from out of nowhere of a man in a colorful costume, ready and able to avert catastrophe. Just at the moment when tragedy seems inevitable, when all avenues of appeal have been exhausted, the superhero injects himself into the scenario, erupting out of the seemingly indifferent back drop -- the passive sky, the paralyzed crowd -- to save the day.
I'm not sure when I decided to be a superhero, but it was probably an inevitable choice. Superman and the X-Men loomed larger in my childhood psyche than Jesus or President Reagan or Mayor Marion Barry; I spent my adolescence poring over illuminated newsprint manuscripts from the sciptoria of Marvel Comics. My natural passivity and awkwardness inclined me toward the sidekick role, the strong, silent second-stringer; but for want of a Bruce Wayne, my Alfred Pennyworth reluctantly took up the mantle and cowl himself. Since then, the direction of my life -- my pursuit of Eastern mysticism, my technical and legal education, my relocation to Gotham, my study of the martial arts -- has been guided by a single principle: What Would Batman Do?
I wear Clark Kent glasses on my face and brilliant spandex under my clothes. Evildoers beware!
The first time I can remember feeling this way, I was in grade school. I was riding in the car with my mother on a highway through the Washington suburbs. As we zipped by a row of houses, I glanced a split-second scene out the passenger-side window: a middle-aged man, heavyset,standing in a driveway next to a car, held a woman (his wife?) by the arm and raised his other fist as if to strike down upon her, while the woman fell back against the open door of the car and raised her arms in a protective gesture. One frozen instant, then the tableau vanished from sight back behind us at sixty miles an hour. My heart beat fast in my chest, and I peered back in vain, trying to conjure back the violence of that moment, trying to find some conclusion. Turning to my mother, it was clear her eyes hadn't left the road -- I carried that image alone. Immediately, I began to second-guess myself: had I seen what I thought I had? I knew that a second glance at a strange sight often transformed it into something commonplace: a man with a missing arm became, at second glance, a fully-limbed man with one arm obscured behind his back. But here there was no time for a double-take. I could say something to my mother -- but what? To get off the highway, turn around, try to find our way back to that driveway, and then... what? Instead, I turned my eyes back to the window and sat silently through the rest of the ride, consumed with guilt, self-loathing, and anxiety. The image still haunts me, that scene out of a comic book, the stark lines of the assailant's raised arm and the cowering form of his victim under his looming shadow; that moment of violence that might not have ever been.
My second such unbracketed encounter came years later, in high school. My parents were out of town, and I was alone in the house. I put out the recycling on the street early in the evening and noted a young woman leaning, smoking, against a sporty black sedan with Maryland plates parked right in front of our townhouse. (At age seventeen, I had a flawless memory for attractive blondes in their twenties.) Much later that night, lying in my parents' bedroom on the second floor, I heard an agument outside through the windows overlooking the street. Two men and the woman. The men disagreed over how drunk one of them -- the woman's brother -- was, and whether he could drive them home safely. The second man accused the brother of risking his sister's life. He finally declared that he was going to walk to Florida Avenue and get a cab. He invited the sister to come with him. She declined. After the man left, the brother and sister continued to argue, in lowered voices. She said something to enrage him.
Watching through the screen window, I could only see silhouettes in the streetlight through the leaves of the pear tree. But I saw him go to the trunk of the car and take out something small that he held in his hand. He put his other hand to it and pulled back; and it made a hard, mechanical, metallic sound. He pointed it at his sister's face. Their voices dropped to stage whispers, desperate.
"Hey! What's going on out there?" My voice dropped two octaves and burst through the tense silence. The moment of crisis dissolved. The man lowered his arm. The stage whispers continued.
I went downstairs and turned on the porch light. I called the police and told them there was a man with a gun outside, pointing it at someone.
I went back upstairs where I could see them through the window. They had gotten into the car. They left before the police arrived.
A few minutes later I went out to the street, looking for some clue to their identity. Nothing remained in the empty parking space but a patch of broken safety glass from some long-ago car stereo theft. I checked the police blotter the next day in the paper. Nothing.
The figure of the superhero represents the impulse to insert oneself into a witnessed crisis or confrontation. The superhero's defining moment is his descent into the midst of a crisis: the climax of a bank robbery, a schoolbus accident, an assault, or a bridge collapse is interrupted by the appearance from out of nowhere of a man in a colorful costume, ready and able to avert catastrophe. Just at the moment when tragedy seems inevitable, when all avenues of appeal have been exhausted, the superhero injects himself into the scenario, erupting out of the seemingly indifferent back drop -- the passive sky, the paralyzed crowd -- to save the day.
I'm not sure when I decided to be a superhero, but it was probably an inevitable choice. Superman and the X-Men loomed larger in my childhood psyche than Jesus or President Reagan or Mayor Marion Barry; I spent my adolescence poring over illuminated newsprint manuscripts from the sciptoria of Marvel Comics. My natural passivity and awkwardness inclined me toward the sidekick role, the strong, silent second-stringer; but for want of a Bruce Wayne, my Alfred Pennyworth reluctantly took up the mantle and cowl himself. Since then, the direction of my life -- my pursuit of Eastern mysticism, my technical and legal education, my relocation to Gotham, my study of the martial arts -- has been guided by a single principle: What Would Batman Do?
I wear Clark Kent glasses on my face and brilliant spandex under my clothes. Evildoers beware!
RIP
Christopher Reeve, Son of Krypton
9/25/1952 - 10/10/2004
Christopher Reeve, Son of Krypton
9/25/1952 - 10/10/2004
Thursday, October 07, 2004
Copyright: The Movie
From: Matt Norwood <mrn2101@columbia.edu>
To: Copyright Class List <mail_04F_L6341_001@equinox.law.columbia.edu>
Date: Mon, 04 Oct 2004 03:03:10 -0400
Subject: Copyright: The Movie
----
Dear Class,
Sheppard Mullin flew me out to Hollywood this weekend, so I thought I'd take the opportunity to pitch my movie idea to a few studios. Let me know (via the class mailing list) what you think of this script, which I wrote on the plane just now. It's kind of "Harry Potter and the Statute of Anne": you know, "The Paper Chase" meets "Videodrome", with a little "1984" and "Welcome Back Kotter" on the side. For extra credit, see if you can spot the product placement.
----
[Scene 1: Copyright class, Columbia Law School, JG 106. PROFESSOR TIMOTHY GINSBURG lectures from the podium over the skittering sound of nine hundred fingers frantically typing notes and playing Spider Solitaire.]
GINSBURG: ... so it looks like the law grants all kinds of property rights to the people who dream up the idea for the work, but the people who actually make the work -- laying the type, engraving the picture -- don't get any rights. Wow, the proles really get shafted! Maybe it's time for another revolution! Ha ha! That's a really disturbing consequence of this legal regime, so let's move on without further discussion!
[LUCAS PICADOR raises his hand. He's a smelly geek who sits in the front row and seems to have his hand perpetually in the air. The seats around him have been vacated owing to his overpowering body odor, and although the professor has gotten good at deflecting his constant pretentious, tangential comments, ignoring him still isn't easy.]
GINSBURG: Moving on to copyright in characters. Can anyone tell me the standard for copyrightability of characters? You, in the back.
STUDENT #1, OOPS, I MEAN REALLY DISTINCTIVE, QUIRKY MELISSA WIGGLESWORTH WHOSE PERSONALITY DRIVES THE PLOT BIG-TIME: The standard for copyrightability is that the story has to be told through the character.
GINSBURG: That's correct. Unfortunately, no one knows what this means. Awesome. Good luck not getting sued by Time Warner next time you make a movie or write a book. Hope you've got a lot of money to pay your lawyers, otherwise don't bother trying to produce new works. Leave it to the big guys. Now, can anyone tell me the policy reasons for character copyrightability?
NOAH PENNYPACKER, WHO'S ALWAYS CRACKING HIS KNUCKLES: Well, I guess people might get confused if other people started selling their works using your character on the cover or something. Oh, but I guess that's covered by trademark and unfair competition laws.
JEAN PFORZHEIMER, WITH BIG HAIR: Well, if you come up with the idea of a character, you should be rewarded for your idea. Oh, but copyright isn't supposed to cover ideas, only expressions.
GINSBURG: Yeah, the policy reasons are pretty vague. But hey, Congress thinks it's a good idea, and you can never have enough IP protection, right? Moving on...
[PICADOR raises his hand and bounces up and down in his seat, making "Ooh! Ooh!" noises in a manner somewhat but not substantially similar to Horshack from "Welcome Back Kotter".]
GINSBURG: (resigned sigh) Yes, Mr. Picador?
PICADOR: (adjusting his glasses on his nose) Professor, I believe there are some countervailing policy considerations. Cultures are built on a substrate of living mythology, which includes cultural heroes and popular icons. If copyright law had existed in Germany in 1517 and the Catholic church had had exclusive rights in the character of Jesus, the Protestant Reformation never would have happened, and we wouldn't have the diversity of religious practice that has contributed so much to our cultural heritage. For that matter, Jesus himself would have infringed on the Yahweh copyright had such a body of law existed in 30 AD, and he might have gotten into a lot of trouble with the priesthood, especially if the Romans had prescribed crucifixion for copyright infringement (I think Congress is in talks with the RIAA about bringing this back.)
Actually, I guess both Luther and Jesus would be okay, since the characters they infringed upon were claimed by the copyright holders to be historically real. Close call. You notice that L. Ron Hubbard figured out how to get around this: first secure a copyright on your religious figures as science fiction characters, then start your religion. That's why there'll never be a Reformation within Scientology. (Incidentally, the Scientologists have been leading the charge on copyright-as-political-censorship: they've managed to stifle discussion of some of their more unsavory practices not through defamation law -- you know, that pesky "truth is a complete defense" clause -- but through copyright.)
It also seems screwy that copyright in characters seems to exhibit a schizophrenic attitude toward cross-media representations: if it's protecting expressions instead of ideas, then how can it protect a visual character from textual appropriation, or vice-versa? For instance, consider this passage from a detective novel I've been working on:
"Smiley pushed his purple, amorphous body through the doors of the MacDuff's, smiling in triumph. He held in his hand $1.25 in nickels and pennies, the proceeds from panhandling on the boulevard all morning, and now he had enough for a fix. Hot damn but he loved milkshakes."
Is the character of Grimace really protected against this kind of thing? Why or why not? Or how about the character of Vinnie Barbarino from "Welcome Back Kotter": he's at least as much a creation of John Travolta as the show's writers, but they (or rather, their studio) owns the rights. Maybe I'm just bitter because I've done more acting than writing and I want the actor's contribution to the creative process to be recognized by the law. Maybe I'm crazy. Or maybe I'm on to something big. Notice that Travolta is a Scientologist. It's all connected. That's why I always wear this tinfoil helmet. (Taps tinfoil helmet on his head)
PENNYPACKER: You're an actor?
PICADOR: Hells yeah. In fact, I'm playing Arturo Ui in Brecht's "The Resistible Rise of Arturo Ui" at Columbia, December 2 through December 4. Mark your calendars.
GINSBURG: Mr. Picador, do you have a point? We have a lot of substantive law to cover, and besides, this script is getting more ponderous with pseudointellectual exposition than the second Matrix movie.
PICADOR: Okay okay. The problem here is that copyright protection for cultural figures frustrates our ability to tell stories about our own experiences, to participate in our own shared cultural narrative; instead, it places complete cultural authority in the copyright holders, who are increasingly not even individual artists but megalithic corporate entities. So even though Superman loomed much larger in my formative childhood mythology than Jesus did, and even though my little brother's imaginary friend when he was a young boy was the Disney character Goofy (those of you who know my brother, please tease him about this next time you see him), we would be prevented by copyright law from, say, making a movie about our childhood that included these very real, central elements of our experience. (I tried bringing these concerns up with Professor Jane Wu as a 1L, and she literally screamed at me for not knowing some details about substantive copyright law. I shit you not.) Professor John Henry Jenkins, head of the Comparative Media Studies program at MIT, has written extensively about pop culture and unauthorized fan fiction as coextensive with the millennia-old tradition of participation in cultural narratives...
[Flashback to a classroom at the Massachusetts Institute of Taxidermy. PROFESSOR JOHN HENRY JENKINS lecturing from the podium. He looks like an old hippy. In the audience is PICADOR, this time surrounded by other smelly nerds.]
[Jenkins's lecture focuses on some ideas that are similar to those of real-life Professor Henry Jenkins, although they're expressed differently. I haven't finished this part of the script yet, but I've included an excerpt below from Jenkins's "Quentin Tarantino's Star Wars?: Digital Cinema, Media Convergence, and Participatory Culture". Jenkins has this and a number of other essays online here -- they're well worth checking out.]
******** EXCERPT ********
Historically, our culture evolved through a collective process of collaboration and elaboration. Folktales, legends, myths and ballads were built up over time as people added elements that made them more meaningful to their own contexts. The Industrial Revolution resulted in the privatization of culture and the emergence of a concept of intellectual property that assumes that cultural value originates from the original contributions of individual authors. In practice, of course, any act of cultural creation builds on what has come before, borrowing genre conventions and cultural archetypes, if nothing else. The ability of corporations to control their "intellectual property" has had a devastating impact upon the production and circulation of cultural materials, meaning that the general population has come to see themselves primarily as consumers of -- rather than participants within -- their culture. The mass production of culture has largely displaced the old folk culture, but we have lost the possibility for cultural myths to accrue new meanings and associations over time, resulting in single authorized versions (or at best, corporately controlled efforts to rewrite and 'update' the myths of our popular heroes). Our emotional and social investments in culture have not shifted, but new structures of ownership diminish our ability to participate in the creation and interpretation of that culture.
Fans respond to this situation of an increasingly privatized culture by applying the traditional practices of a folk culture to mass culture, treating film or television as if it offered them raw materials for telling their own stories and resources for forging their own communities. Just as the American folk songs of the nineteenth century were often related to issues of work, the American folk culture of the twentieth century speaks to issues of leisure and consumption. Fan culture, thus, represents a participatory culture through which fans explore and question the ideologies of mass culture, speaking from a position sometimes inside and sometimes outside the cultural logic of commercial entertainment. The key difference between fan culture and traditional folk culture doesn't have to do with fan actions but with corporate reactions. Robin Hood, Pecos Bill, John Henry, Coyote, and Br'er Rabbit belonged to the folk. Kirk and Spock, Scully and Mulder, Han and Chewbacca, or Xena and Gabrielle belong to corporations.
******** END EXCERPT ********
[End Flashback. Back to Columbia.]
GINSBURG: Jenkins?!? Hey, if you're going to start quoting bearded pinko pop-culture media theorist hippies, why not jump right into the ravings of Eben Moglen?
PICADOR: Well actually --
GINSBURG: Don't go there, girlfriend! Okay class, next week we move on to ...
[PICADOR sits brooding in the front row, his eyes glimmering darkly. Superimposed over his tinfoil hat is a shadowy image bearing a slight but not substantial similarity to Darth Vader's helmet.]
THE END?
[Credits, immediately followed by a preview for "Copyright 2: The Derivative Work", coming to theaters two months later.]
Copyright MMIV Matt Norwood. All rights reserved. Forward this to a friend and I'll sic the thought police on you.
Characters Timothy Ginsburg, Lucas Picador, Melissa Wigglesworth, Noah Pennypacker, Jean Pforzheimer, Jane Wu, and John Henry Jenkins are registered trademarks of Matt Norwood as soon as I get around to it, plus they're covered by my copyright, which, since I'm planning on making it at least until 2100, means that my estate will hold exclusive rights until 2170, at which point the nine generations of kids who grew up playing with Timothy Ginsburg action figures and sleeping in Jane Wu underoos will no longer be fined thousands of dollars for posting unauthorized drawings and stories about my characters on the Internet (i.e. "stealing" my intellectual property, to use the terminology favored by Professor Wu in recent lectures).
Patent pending on the business method of vetting a script by sending it to a class mailing list.
Any resemblance to persons living or dead or to architectural works existing on the Columbia Law School campus is strictly coincidental.
To: Copyright Class List <mail_04F_L6341_001@equinox.law.columbia.edu>
Date: Mon, 04 Oct 2004 03:03:10 -0400
Subject: Copyright: The Movie
----
Dear Class,
Sheppard Mullin flew me out to Hollywood this weekend, so I thought I'd take the opportunity to pitch my movie idea to a few studios. Let me know (via the class mailing list) what you think of this script, which I wrote on the plane just now. It's kind of "Harry Potter and the Statute of Anne": you know, "The Paper Chase" meets "Videodrome", with a little "1984" and "Welcome Back Kotter" on the side. For extra credit, see if you can spot the product placement.
----
[Scene 1: Copyright class, Columbia Law School, JG 106. PROFESSOR TIMOTHY GINSBURG lectures from the podium over the skittering sound of nine hundred fingers frantically typing notes and playing Spider Solitaire.]
GINSBURG: ... so it looks like the law grants all kinds of property rights to the people who dream up the idea for the work, but the people who actually make the work -- laying the type, engraving the picture -- don't get any rights. Wow, the proles really get shafted! Maybe it's time for another revolution! Ha ha! That's a really disturbing consequence of this legal regime, so let's move on without further discussion!
[LUCAS PICADOR raises his hand. He's a smelly geek who sits in the front row and seems to have his hand perpetually in the air. The seats around him have been vacated owing to his overpowering body odor, and although the professor has gotten good at deflecting his constant pretentious, tangential comments, ignoring him still isn't easy.]
GINSBURG: Moving on to copyright in characters. Can anyone tell me the standard for copyrightability of characters? You, in the back.
STUDENT #1, OOPS, I MEAN REALLY DISTINCTIVE, QUIRKY MELISSA WIGGLESWORTH WHOSE PERSONALITY DRIVES THE PLOT BIG-TIME: The standard for copyrightability is that the story has to be told through the character.
GINSBURG: That's correct. Unfortunately, no one knows what this means. Awesome. Good luck not getting sued by Time Warner next time you make a movie or write a book. Hope you've got a lot of money to pay your lawyers, otherwise don't bother trying to produce new works. Leave it to the big guys. Now, can anyone tell me the policy reasons for character copyrightability?
NOAH PENNYPACKER, WHO'S ALWAYS CRACKING HIS KNUCKLES: Well, I guess people might get confused if other people started selling their works using your character on the cover or something. Oh, but I guess that's covered by trademark and unfair competition laws.
JEAN PFORZHEIMER, WITH BIG HAIR: Well, if you come up with the idea of a character, you should be rewarded for your idea. Oh, but copyright isn't supposed to cover ideas, only expressions.
GINSBURG: Yeah, the policy reasons are pretty vague. But hey, Congress thinks it's a good idea, and you can never have enough IP protection, right? Moving on...
[PICADOR raises his hand and bounces up and down in his seat, making "Ooh! Ooh!" noises in a manner somewhat but not substantially similar to Horshack from "Welcome Back Kotter".]
GINSBURG: (resigned sigh) Yes, Mr. Picador?
PICADOR: (adjusting his glasses on his nose) Professor, I believe there are some countervailing policy considerations. Cultures are built on a substrate of living mythology, which includes cultural heroes and popular icons. If copyright law had existed in Germany in 1517 and the Catholic church had had exclusive rights in the character of Jesus, the Protestant Reformation never would have happened, and we wouldn't have the diversity of religious practice that has contributed so much to our cultural heritage. For that matter, Jesus himself would have infringed on the Yahweh copyright had such a body of law existed in 30 AD, and he might have gotten into a lot of trouble with the priesthood, especially if the Romans had prescribed crucifixion for copyright infringement (I think Congress is in talks with the RIAA about bringing this back.)
Actually, I guess both Luther and Jesus would be okay, since the characters they infringed upon were claimed by the copyright holders to be historically real. Close call. You notice that L. Ron Hubbard figured out how to get around this: first secure a copyright on your religious figures as science fiction characters, then start your religion. That's why there'll never be a Reformation within Scientology. (Incidentally, the Scientologists have been leading the charge on copyright-as-political-censorship: they've managed to stifle discussion of some of their more unsavory practices not through defamation law -- you know, that pesky "truth is a complete defense" clause -- but through copyright.)
It also seems screwy that copyright in characters seems to exhibit a schizophrenic attitude toward cross-media representations: if it's protecting expressions instead of ideas, then how can it protect a visual character from textual appropriation, or vice-versa? For instance, consider this passage from a detective novel I've been working on:
"Smiley pushed his purple, amorphous body through the doors of the MacDuff's, smiling in triumph. He held in his hand $1.25 in nickels and pennies, the proceeds from panhandling on the boulevard all morning, and now he had enough for a fix. Hot damn but he loved milkshakes."
Is the character of Grimace really protected against this kind of thing? Why or why not? Or how about the character of Vinnie Barbarino from "Welcome Back Kotter": he's at least as much a creation of John Travolta as the show's writers, but they (or rather, their studio) owns the rights. Maybe I'm just bitter because I've done more acting than writing and I want the actor's contribution to the creative process to be recognized by the law. Maybe I'm crazy. Or maybe I'm on to something big. Notice that Travolta is a Scientologist. It's all connected. That's why I always wear this tinfoil helmet. (Taps tinfoil helmet on his head)
PENNYPACKER: You're an actor?
PICADOR: Hells yeah. In fact, I'm playing Arturo Ui in Brecht's "The Resistible Rise of Arturo Ui" at Columbia, December 2 through December 4. Mark your calendars.
GINSBURG: Mr. Picador, do you have a point? We have a lot of substantive law to cover, and besides, this script is getting more ponderous with pseudointellectual exposition than the second Matrix movie.
PICADOR: Okay okay. The problem here is that copyright protection for cultural figures frustrates our ability to tell stories about our own experiences, to participate in our own shared cultural narrative; instead, it places complete cultural authority in the copyright holders, who are increasingly not even individual artists but megalithic corporate entities. So even though Superman loomed much larger in my formative childhood mythology than Jesus did, and even though my little brother's imaginary friend when he was a young boy was the Disney character Goofy (those of you who know my brother, please tease him about this next time you see him), we would be prevented by copyright law from, say, making a movie about our childhood that included these very real, central elements of our experience. (I tried bringing these concerns up with Professor Jane Wu as a 1L, and she literally screamed at me for not knowing some details about substantive copyright law. I shit you not.) Professor John Henry Jenkins, head of the Comparative Media Studies program at MIT, has written extensively about pop culture and unauthorized fan fiction as coextensive with the millennia-old tradition of participation in cultural narratives...
[Flashback to a classroom at the Massachusetts Institute of Taxidermy. PROFESSOR JOHN HENRY JENKINS lecturing from the podium. He looks like an old hippy. In the audience is PICADOR, this time surrounded by other smelly nerds.]
[Jenkins's lecture focuses on some ideas that are similar to those of real-life Professor Henry Jenkins, although they're expressed differently. I haven't finished this part of the script yet, but I've included an excerpt below from Jenkins's "Quentin Tarantino's Star Wars?: Digital Cinema, Media Convergence, and Participatory Culture". Jenkins has this and a number of other essays online here -- they're well worth checking out.]
******** EXCERPT ********
Historically, our culture evolved through a collective process of collaboration and elaboration. Folktales, legends, myths and ballads were built up over time as people added elements that made them more meaningful to their own contexts. The Industrial Revolution resulted in the privatization of culture and the emergence of a concept of intellectual property that assumes that cultural value originates from the original contributions of individual authors. In practice, of course, any act of cultural creation builds on what has come before, borrowing genre conventions and cultural archetypes, if nothing else. The ability of corporations to control their "intellectual property" has had a devastating impact upon the production and circulation of cultural materials, meaning that the general population has come to see themselves primarily as consumers of -- rather than participants within -- their culture. The mass production of culture has largely displaced the old folk culture, but we have lost the possibility for cultural myths to accrue new meanings and associations over time, resulting in single authorized versions (or at best, corporately controlled efforts to rewrite and 'update' the myths of our popular heroes). Our emotional and social investments in culture have not shifted, but new structures of ownership diminish our ability to participate in the creation and interpretation of that culture.
Fans respond to this situation of an increasingly privatized culture by applying the traditional practices of a folk culture to mass culture, treating film or television as if it offered them raw materials for telling their own stories and resources for forging their own communities. Just as the American folk songs of the nineteenth century were often related to issues of work, the American folk culture of the twentieth century speaks to issues of leisure and consumption. Fan culture, thus, represents a participatory culture through which fans explore and question the ideologies of mass culture, speaking from a position sometimes inside and sometimes outside the cultural logic of commercial entertainment. The key difference between fan culture and traditional folk culture doesn't have to do with fan actions but with corporate reactions. Robin Hood, Pecos Bill, John Henry, Coyote, and Br'er Rabbit belonged to the folk. Kirk and Spock, Scully and Mulder, Han and Chewbacca, or Xena and Gabrielle belong to corporations.
******** END EXCERPT ********
[End Flashback. Back to Columbia.]
GINSBURG: Jenkins?!? Hey, if you're going to start quoting bearded pinko pop-culture media theorist hippies, why not jump right into the ravings of Eben Moglen?
PICADOR: Well actually --
GINSBURG: Don't go there, girlfriend! Okay class, next week we move on to ...
[PICADOR sits brooding in the front row, his eyes glimmering darkly. Superimposed over his tinfoil hat is a shadowy image bearing a slight but not substantial similarity to Darth Vader's helmet.]
THE END?
[Credits, immediately followed by a preview for "Copyright 2: The Derivative Work", coming to theaters two months later.]
Copyright MMIV Matt Norwood. All rights reserved. Forward this to a friend and I'll sic the thought police on you.
Characters Timothy Ginsburg, Lucas Picador, Melissa Wigglesworth, Noah Pennypacker, Jean Pforzheimer, Jane Wu, and John Henry Jenkins are registered trademarks of Matt Norwood as soon as I get around to it, plus they're covered by my copyright, which, since I'm planning on making it at least until 2100, means that my estate will hold exclusive rights until 2170, at which point the nine generations of kids who grew up playing with Timothy Ginsburg action figures and sleeping in Jane Wu underoos will no longer be fined thousands of dollars for posting unauthorized drawings and stories about my characters on the Internet (i.e. "stealing" my intellectual property, to use the terminology favored by Professor Wu in recent lectures).
Patent pending on the business method of vetting a script by sending it to a class mailing list.
Any resemblance to persons living or dead or to architectural works existing on the Columbia Law School campus is strictly coincidental.
