Commentary on the Public Domain
by Sam Williams
Upside Today, Open Season, December 22, 1999
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Should Auld Copyrights Be Forgot
By Sam Williams
Upside Today, Open Season, December 22, 1999
They say life imitates art, but when NBC made its annual broadcast of Frank Capra's "It's a Wonderful Life" Sunday, I couldn't help but feel a sense of emotional resonance during Jimmy Stewart's final breakdown scene.
Maybe it was the stress of having to weave my way through a half-dozen different anti-corporate protest groups during Sunday's shopping expedition to downtown San Francisco. Maybe it was my own premature midlife concerns mixed with general baseline Y2K anxiety. Maybe it was the channel hopping as I tried to catch the final half hour of "Babe" on ABC, especially the great final scene in which the little... [choke]... pig wins the... [sob]... Grand National Sheepdog Trials.
Excuse me for a moment, here, folks...
OK, I'm back.
"It's a Wonderful Life" offers a parable for the open source community.
Whatever the reason, I found myself drawn a bit closer to the darker side of the Frank Capra holiday classic. Everything from the talking stars at the beginning to the orchestral strains of "Dies Irae" during the famous bridge scene seemed to carry a bit more weight than in previous viewings.
Although the good folks at NBC did their best to keep me perky, I decided not to interfere with the mood. With each commercial break, I calmly hit the mute button and averted my gaze until the emotionally laden black-and-white images returned to the screen. By the time the neighbors all started rolling in, bailing George out with their hard-earned cash, it was all I could do to keep from dissolving into a pile of gooey protoplasm, leaking through the cracks in the floorboards.
Anyway, my pathetic little anecdote becomes gristle for the Open Season mill only because of a chance background check I did on the movie Monday morning. Visiting the king of all procrastination Web sites, the Internet Movie Database, I read Roger Ebert's Chicago Sun Times review. I was astonished to find that "It's a Wonderful Life," both as a fictional work and a piece of Hollywood intellectual property, offers a parable for the open source community.
"The best and worst things that ever happened to 'It's a Wonderful Life' is that it fell out of copyright protection and into the shadowy no-man's-land of the public domain," writes Ebert at the beginning of his review.
Indeed, while "It's a Wonderful Life" may seem like vintage Capra to modern viewers, the movie has enjoyed a life almost as troubled as its onscreen hero-protagonist.
Based on "The Greatest Gift," a short story by struggling screenwriter Philip Van Doren Stern, the movie began its life much like South Park series, i.e. as a 1939 Christmas card distributed to Hollywood agents and studio executives. Various studio treatments failed to convert the story into a workable script, however, until RKO Studios chief Charles Koerner showed it to Capra.
Capra, who spent the World War II years crafting propaganda movies for the War Department, seized upon "It's a Wonderful Life" as the debut feature for his postwar film company, Liberty Films. Throwing in a few signature touches, including a non-linear storyline, and signing Stewart as the leading man, Capra pegged it as the film he'd always wanted to make but never had the resources to do so, according Jonathan Coe, author of Jimmy Stewart, A Wonderful Life.
But a combination of factors conspired against the movie's success. Stewart, who spent the war years as a bomber pilot and wing commander in the U.S. Army Air Force, was still in the grips of what we would now characterize as depression during the early stages of the filming, a fact that helped contribute to the film's underlying dark tone. Secondly, Capra's populist -- some might say leftist -- storytelling approach had grown out of touch with the more conservative American postwar zeitgeist.
Although the film garnered several Academy Award nominations -- including Best Director, Best Picture and Best Actor -- it was a commercial flop in the theaters. William Wyler's "The Best Years of Our Lives," a film that more accurately captured the postwar mood, cleaned up at both the 1946 box office and the Academy Awards.
Jump cut to Feb. 6, 1975. After languishing for nearly two decades in the studio vaults, "It's a Wonderful Life" fell into the public domain. Movie historians disagree on the reason behind this. Some attribute it to a clerical error. Others credit simple disinterest on the part of studio management. Regardless of the reason, all agree on one thing: "It's a Wonderful Life" wouldn't be a classic today, worth millions in prime time ad revenue, if it hadn't been for that slipup.
"PBS stations were the first to jump on the bandwagon in the early 1970s, using the saga of the small-town hero George Bailey as counter-programming against expensive network holiday specials," writes Ebert. "To the general amazement of TV program directors, the audience for the film grew and grew over the years, until now many families make the movie an annual ritual."
Such prosperity might seem like a no-brainer in the information-wants-to-be-free world of computer software. After all, even the ultra-proprietary brains at Microsoft know that if you want to guarantee a sizable audience for your work, simply give it away. To Hollywood movie studios, however, "It's a Wonderful Life's" increased popularity amounted to little more than revenue theft.
Republic Pictures, inheritor of the RKO library and the original negative print, embarked on a decades-long battle to win back its lost asset. They were aided by the primary downside of public domain status: no centralized quality control. By the mid-1980s, more than 100 different companies were distributing videotape versions of the movie. Many came from shoddy prints. Some were edited with extreme prejudice. One company even went so far as to distribute a colorized version, a move that prompted Stewart to testify before Congress on behalf of Capra and the other black-and-white-era directors.
Ultimately, the attorneys at Republic found a legal back door. Although the film had
entered the public domain, the movie soundtrack was still under studio control. For the
last decade, Republic used this fact to drive rival distributors out of the market and
reestablish sole control of the broadcast rights. In 1994, Republic, now a property of
Spelling Entertainment, licensed those rights to NBC. And the network has shown "It's
a Wonderful Life" as part of its holiday programming for the last five years.
Should Auld Copyrights Be Forgot
To proponents of the copyright status quo, the Republic's success is proof positive as to why copyright protection is a good thing. By maintaining a monopoly on distribution, corporations such as Viacom, now a subsidiary of CBS, are able to guarantee product quality for the audience, defending the reputation of artists such as Capra and Stewart.
To opponents of the status quo, however, a different message emerges. Sunday's broadcast of "It's a Wonderful Life" comes just one year after the Sonny Bono Copyright Term Extension Act, Congress' 1998 decision to expand copyright protection to 95 years from first publication from the previous rule of 75 years. Today the movie stands as a prime example of the flaws in copyright law as it currently stands. What once stood as a shield designed to protect artists and creators, now serves as little more than a weapon in the powerful legal arsenal of U.S. multinational corporations.
"The irony of the 'It's a Wonderful Life' story is that the whole reason people see it and the reason it has become seen as an uplifiting classic message during Christmas time, during the most corporate-saturated, most eyeball-intensive time of the year, the whole reason it's worked its way into the structure of American Christmas is because of a corporate mistake," says Eben Moglen, professor of law history at Columbia University and general counsel for the Free Software Foundation.
In his online essay "Anarchism Triumphant: Free Software and the Death of Copyright," Moglen pulls the world of Hollywood make believe, Internet-based software development and the emerging hot-button issue of software patents together by citing Article I, Sec. 8 of the U.S. Constitution.
Titled "Powers Granted to Congress," Section 8 outlines the powers granted to Congress in the realm of patents and copyrights: "To promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."
According to Moglen, the chief problem with the current state of copyright law lies less with the open-ended nature of terms such as "progress" and "limited times" than with the traditional legal and economic philosophies used to interpret them. While creators deserve the chance to protect their work, Moglen maintains that 200 years of copyright and patent law have created an environment in which intellectual property has been lumped into a legal ownership category similar to real estate and other scarce commodities.
The success of free software efforts such as GNU/Linux, Internet standards and even public domain works such as "It's a Wonderful Life," on the other hand, proves that intellectual property -- unlike scarce commodities -- actually rise in value the more they are given away.
"The rules are being bent in two directions," writes Moglen, noting the corporate vs. community stress being placed on the intellectual property definition. As a historian, Moglen says it is only a matter of time before such stresses demand a turbulent return to equilibrium. "Software -- whether executable programs, music, visual art, liturgy, weaponry, or what have you -- consists of bit streams, which although essentially indistinguishable are treated by a confusing multiplicity of legal categories. This multiplicity is unstable in the long term for reasons integral to the legal process," he writes.
To Moglen, that equilibrium lies much closer to the anarchistic production modes of the Internet, where the cost of distribution tends to zero and the ownership of the original negative print carries no weight when all derivatives retain the same quality. Moglen expresses little doubt that the Internet's influence in stimulating human output will short-circuit the current legal mindset that views intellectual property as a scarce resource to be coveted and protected -- much like beachfront property. Still, he sees a fierce battle as legacy IP-owners adjust to the change.
"We've got this iron triangle," he says. "The content manufacturers in Hollywood have money. They use that money to fund campaigns that influence the legislative process. Those campaigns, in turn, pay television stations for advertising, so the media outlets prosper. That's a circle and that's a vicious one."
Granted, the parallels between an artistic work produced by a paid studio crew and a free software program written by volunteer programmers only go so far. Still, most legal observers say it's only a matter of time before the fire burning within the Internet free software community leaps the property line over into mass-market entertainment arena.
In many ways, it already has. Witness the Recording Industry Association of America's battle against the MP3 standard. The success of films such as "It's a Wonderful Life" prove that the same potential exists within the film entertainment world as well.
Still, if the story behind "It's a Wonderful Life" serves as a parable for free software advocates, it's a parable that follows an opposite story arc to the one detailed in the movie. How should free intellectual property proponents view the unhappy ending in which CBS and NBC trade integers on a spreadsheet while Frank Capra's corpse spins counter-clockwise in its grave?
Eric Eldred, founder of Eldritch Press and chief plaintiff in Eldred v. Reno, a case that failed to overturn the Sonny Bono Act in U.S. District Court this summer, sees it as a sign that copyrights -- even free software ones -- can overstay their welcome, coming back to haunt even the creators they were meant to protect.
"Open source people would be happy to have a copyright that extended forever as long as it was license for free," Eldred says. "I would rather have a short copyright term, and I would then like, at the end of that term, to have the work go into the public domain and anybody would be free to have a derivative work made from it."
By using free software licenses, itself a form of copyright, Eldred hints that free software proponents might actually be strengthening the machine they're trying to disable. By advocating a short-term limit on copyrights altogether, Eldred says, Internet denizens can strike a blow against corporate subsidy.
"The public domain should be considered like our environment, like the water underneath our land," he says. "What's happening is that private corporations are sucking up that water and privatizing. Sooner or later it's going to be harder and harder for them to get that water, which means it's going to be harder for us to get the water, as well."
However, painting the future of copyright law as a Potterville vs. Bedford Falls dichotomy -- that is, a battle between continued long-term protection and throwing every piece of intellectual property into the public domain hopper -- is an oversimplification that irks even intellectual property reformers such as Richard Stallman.
"I wouldn't say that I'm against copyright," says Stallman, founder of the Free Software Foundation and one of the leading minds behind the General Public License, a.k.a. copyleft, a software license which uses copyright protection to guarantee that programs make their source code available and that derivative works remain as freely copyable and distributable as their parent works. "What I stand for is that software should be free. Under the current system, copyleft is very important," says Stallman.
Stallman says he would favor a drastic reduction of copyright duration. Three years and ten years in the case of novels are both reasonable rates, he says.
"I was at a science fiction conference, where I mentioned that 10-year total on a panel," he says. "One of the authors sitting next to me said it was outrageous. He said there should be no excuse for copyrights going any longer than five years."
Still, the unique nature of software, where distributed binaries can fall within public domain while the more crucial underlying source code remains as proprietary as the original formula for Coca Cola, makes it impossible to endorse across-the-board solutions. Instead of creating new problems by oversimplification, Stallman says he prefers to use available tools to bolster artistic and expressive freedom. For the moment, those tools include the same copyright laws used by software companies and Hollywood studios.
"Copyright is only a means to an end," he says. "That's all it can ever be. The stated end is to promote progress. That's the only thing which, under our Constitution, can justify it."
Sam Williams is a freelance writer covering high-tech culture and new media. His work appears in the San Francisco Examiner.