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Electricity and Intellectual Property Rights

October 26, 2009
  • Marshall McLuhan: Understanding Media
  • Jonathan Lethem: The Ecstasy of Influence: A Plagiarism
  • Joy Garnett and Susan Meiselas: On the Rights of Molotov Man
  • NYT (AP): Artist Admits Using Other Photo for ‘Hope’ Poster

Reading McLuhan after Walter Benjamin makes me long for a trip back to the dawn of the electric age.  The wonder with which they both speak about electricity and the motion picture completely transforming the way we think about the world leaves me wishing that they did not seem so normal now.  It does help “to get our bearings,” as McLuhan notes, “to visit a society where that particular [technical form of human expression] has not been felt.”  Reading early commentators, when the experience of the new technique was great, is instructive too.  In his Education, Henry Adams described the transformational force of the electric dynamo as being so great, that to his mind it was for our culture the symbolic center as were the cathedrals for the middle ages.  He was speaking at the turn of the last century of course, and I don’t think the dynamo holds quite the power over our imaginations that it did then.

In the context of the industrial revolution, the transformative scale of electricity is hard to grasp relative to first horsepower, then water power and then the steam engine.  Gone is the noise, the smell, all replaced with a silent ubiquity.  You can walk into a room and touch a button for light where once you needed to light a kerosene lamp.  You can pick up a phone and speak to someone on the other side of the Atlantic.  You can sit on your couch and watch an image on a glass screen of Neil Armstrong land on the moon.  McLuhan paints a vision of each technology effectively eating the one previous as human society expands in scale and pace: that the familiar medium is the content for the unfamiliar.

That electricity has eroded not just space and time, but the boundaries between the things that we make.  Although not explicitly, both McLuhan and Benjamin speak to the issues of intellectual property.  If, as Benjamin argues, the reproduced work has been stripped of its aura, then that process also casts doubt on the creator’s claim of authorship.  If, as McCluhan argued, the “American stake in literacy…is totally threatened by the electric technology,” and electricity with its immediacy is returning us to a kind of oralic culture, then intellectual property rights which were not constructed of it are an inadequate structure within which to operate.

I read Lethem with an open mind, but confess that I probably began it as one of the “empiricists of our market culture”, having for a long time thought that failure to protect intellectual property would result in a loss of innovation.  This is of course an inherited opinion, and more or less untested, but growing up when I did and watching the failure of the communist experiment, it has a certain resonance.  People do need to be rewarded, but this doesn’t necessarily need to take the blunt form of monetary enticement in every case.

I am no student of intellectual property law, but for a layman Lethem makes a strong case for the reform of copyright law.  Ideas have a life of their own, moving from mind to mind, between media, and transforming in the process, just, as he notes, language does.  At an individual level, if we stopped each other mid-sentence every time someone developed an idea of ours to remind them that they were developing OUR idea, we would cease to converse.  Copyright and patent laws are in this sense conversation stoppers.  Worse, they are like walls at national borders erected to prevent migration.  In the short-term, perhaps this preserves stability, but in the long-term, it is disastrous for the depth and expanse of the cultural commons.

Perhaps the more fundamental issue is the manner in which our society compensates and rewards the producers of added intellectual value.  Many of these cases are not fought by individual artists or inventors who added the value in the first place, but by large corporations.  These are feudal wars.  In some cases the added value was developed in-house, in others it was purchased, and in others still it was simply stolen outright. It is stealing, though, only in the sense that it was taken from the commons.  I did like Lethem’s comment that there are many aspects of society that need to be protected from market forces: I imagine he means fostering artistic and technical development as well, and I would like to see this idea developed further.  I don’t know if it has to lead to subsidization, but I am not sure what other model we have: we have never been much of a country in that regard, and when we have, it has not always been so impressive.  Deducing that it cannot be so, however, is fallacious—it may never have successfully achieved a momentum of its own for the very fact that it was not encouraged.

In the context of Lethem’s outstanding summary of the problem, it was interesting to see the two other articles in a sense as reports from the battlefield.  They were both dispiriting at some level, and I wonder how much of it is the result of the complexity of copyright law, and how much is a basic failure of will.  Shepard Fairey’s “brain-dead move” of misrepresenting even to his own legal team the photo from which he was working is so absurd that it begs the question of why the battle is going on in the first place.  Whichever photograph he based his print on, he clearly did not change it radically, but the very idea that that is being argued out by lawyers seems ridiculous because he still added value.  Nonetheless, there is no easy answer here—it is not clear to me whether the original photographer has a dog in this fight, or if it is just the AP—but it is clear that they both should get some credit, and that Fairey should not be able to claim some sort of unattributable degree of originality.

Joy Garnett, too, did not radically transform Susan Meiselas’ photograph, but it is still a fresh point of view. She, however, should probably have taken more care in identifying her source at the outset.  Her argument for the manner in which she accumulated her images seemed a bit lazy, but I can easily imagine working the way she did.  Susan Meiselas’ contention that she had her lawyer go after Joy Garnett primarily to contextualize the original photograph seemed disingenuous, but her argument about contextuality was interesting in itself.  While reading the Shepard Fairey piece, and before reading this one, I had asked myself why Obama wasn’t involved in the fight with AP, given that the remarkable features are his alone, but obviously that idea was tested in court some time ago.

As Lethem says, intellectual property law is an ongoing negotiation.  At this juncture, it needs to be relaxed so that it better reflects the way that ideas freely move.  That being said, those that add value still need to eat, and copyright laws are theoretically there to reward them.  That they have been gobbled up by corporations, that they have been extended far past the life of the one who added value, or that individuals do not have the resources to invoke the laws on their own behalf are all problems that should and can be addressed.  It is unlikely that we would ever have a world in which there was no protection of intellectual property whatsoever, but it is worth a thought experiment.  Somewhere between there and where we are is probably more akin to what Jefferson had in mind.

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