Sunday, July 1, 2012

Imitate, Assimilate, Innovate

This post on Techdirt caught my attention this morning for a few reasons. The article outlines the contours of recent debates about "intellectual disobedience," a term used in this video by Nina Paley to combine 'intellectual property' and 'civil disobedience' into an unapologetic stance on copyright infringement for the sake of one's art. While today's copyright laws are certainly in need of more user-friendly reforms (for author and non-author users), I'm not quite ready to go down the abolitionist path that "intellectual disobedience" leads to. The occasional intellectually disobedient use of a work might not be covered by parody, satire, fair use or other (affirmative) defense but such edge cases are a necessary means for courts to (attempt to) clarify a law Congress isn't ready to reform. Taken to its extreme, "intellectually disobedient" use of others' work would be a free-for-all, devoid of even the possibility of copyright (or copyleft) licenses requiring attribution.

Paley doesn't come out against attribution. Indeed, the open use of others' works is the whole point of the exercise. Still, the absence of a discussion about artistic norms or attribution made the interview sound more self-serving than constructive. I certainly don't share the view that Paley or Techdirt disrespects artists, as some have claimed and sadly gone so far as to make personal attacks about. I share many of the same objectives for copyright reform. I'm just not convinced "intellectual disobedience" is more than a new label on practices that are happening already, and wonder whether its articulation provokes rather than invites discussion.

I tend to agree with Mike Masnick's view in the second paragraph here that infringement should generally be avoided in favor of reminding or "convincing creators that being open and encouraging others to build on their works has tremendous benefits in both the short- and long-terms." In other words, building on someone else's work expands culture, rather than taking something away. The confrontational tenor of "intellectual disobedience" turns Paley's point against her. Rhetorically, being disobedient and using something without permission implies taking something away from someone else by doing something that is considered unacceptable to others. Although the speaker's intention is to expand the universe of potential uses by bringing attention to the resulting benefits, it feels like a divisive way of getting there. If that's the goal, fair enough. I'm sure many others share the sentiment.

The statement endorsing conscientious violation of the law in order to remain a free human being seemed out of place to me. At what point does one person's freedom (of expression or otherwise) infuse itself with the ability to disregard others' rights or interests? Like any constitutional or human rights debate, it's about where we choose to draw the line. Whether viewed through the lens of moral rights, defamation, tort or artistic norm, "intellectual disobedience" sounds to me like an instance where something preferential or even good for one artist isn't necessarily good for all artists, or society. Also, like other another well known example, a lack of articulated harm takes away from the argument's impact.

While I know Paley is familiar with intellectual property law, the inability to claim "ignorance" of copyright infringement is besides the point since it is a strict liability offense.* The amount of damages may be affected by knowledge or awareness, but that is different from liability in the first place. Similarly, I'm not sure how one's knowledge of infringement would prohibit a claim of fair use, procedural possibilities aside. Anyways, I wholeheartedly agree with her that ubiquitous sharing online is a beautiful thing, and there needs to be more breathing room for certain uses. I just respectfully disagree on the best and fastest way to get there.

Getting to this post's title, Masnick's discussion of the nature of creativity and innovation in the article reminded me of a poster in a former guitar teacher's office that said "Imitate, Assimilate, Innovate." The quote is attributed to musician Clark Terry. The simple steps have been hugely helpful to me in understanding music, law and coding. An interview I read years ago in a guitar magazine discussed two views of creativity: the romantic genius locked in a room pulling ideas out of the ether, never tainted by the artistic impurity of a corrupt world, and the person exposed to everything, using the language of his or her predecessor's as the starting point for furthering the conversation. Admittedly, certain types of art, particularly jazz music, are heavily based upon their acknowledgment and incorporation of other ideas. Software is another great example where openness and building has led to rapid innovation and creativity. Whether quoting a famous tune or style in a solo or riff, reusing copylefted code, or a "HT" on Twitter, I'm a strong believer in the courtesy and requirement of attribution as part of step 1, Imitate. While U.S. law retains some notion of the lone genius, and moral rights jurisdictions more explicitly so, the legal fiction is just that. With respect to Assimilation, I too want more flexibility, especially for non-commercial re-use. Commercial re-use is a much trickier case, although some sort of "right to remix" short of passing off** seems necessary. On Innovation.. you be the judge.

While there are many ways to get paid that don't involve copyright, I'd still prefer to see that choice made initially by the (human) author.*** Throw in shorter terms and things are looking considerably better already. The question is really whether we want a permission-first or forgiveness-later kind of culture. Or another popular flavor, permission with clear exceptions and limitations. More on that in a future post. I still remain hopeful that the law will catch up and feel like a provocative call to action such as "intellectual disobedience" obscures the speaker's message, avoids some of the underlying issues and shines too extreme a light for many necessary stakeholders to constructively engage with. At any rate, the copyright debates chug along and the more attention that can start shifting back to non-SOPA reform issues, the better.

*The volitional conduct or causation requirement for direct infringement by Internet providers wouldn't apply here.
**"Passing off" in a non-legal sense since such a claim would be for copyright, not trademark infringement. Dastar.
**#While I'm hopeful for copyright reform, it will be difficult enough in the first place without Congress deciding to upend immense bodies of law explaining copyright law in economic ("incentive") terms. In other words, I can't imagine we'll see a distinction in the law between rights of human author-owners and corporate "author"-owners, however desirable it might be.