In Code and Other Laws of Cyberspace, Lawrence Lessig was over 10 years ahead of his time, but pointed to the fact that code, as in software, was as important to the realities of the online legal regime as the laws passed by governing bodies. There seems to be an increasing understanding that copyright, as we know it, is becoming obsolete.
Our notion of copyright, the exclusive right of an author/creator to control distribution, makes less and less sense as the technology evolves. Copyright, at it’s core, protected the author from exploitation from the owners of the printing press. Without copyright, the owner of the printing press would be able to create multiple copies of a book, article, etc., without compensation to the original author.
Consider as a thought exercise, a novel writer, who brings a sample to a press owner, who agrees to share the revenues with the author. Without copyright, that author would be able to collect from that press owner, but had no protection from dozens of other press owners taking that work and making copies without compensation. Copyright protected the author. Our founding fathers established limited protection, 14 years for registered copyrights, with another 14 year renewal available, which made the protection a limited time. With extensions and treaty obligations, Congress has extended the protection to around 100 years, give or take, depending upon whether it is published, (70 years after the death of author, or for corporate works, 95 years from publication or 120 years from creation, whichever expires first). This has insured that all works are protected seemingly forever.
However, in a digital realm, we are no longer worrying about the press owners, but everyone. Everyone with a computer is capable of duplicating any work, so copyright attempts to regulate everyone. In addition, the terms have been extended beyond anything reasonable, making the “public domain” trade-off merely theoretical. For a television show released in 2010, it will be in the public domain in 2105, when nobody will have the ability to duplicate the product. As culture speeds up, the lifespan of these works is measured in months or years, yet the copyright will last nearly 100 years.
In the computer space, we see the blatantly illegal Abandonware issue, where enthusiasts have archives of no longer available products available for download and possible emulation. While one might question the literary importance of early computer games, they certainly played a role in American and global culture, and the copyright regime makes it likely that these works will never be available. Publishers from the 1980s and 1990s are long gone, the copyright holders defunct or swallowed into larger companies, all with no interest in preserving the works of that time period. For every game like Civilization with endless sequels (and presumably originals maintained and later republished as Flash games or equivalent), there are plenty of games that were exciting but the company went defunct, and changing architecture makes it impossible to maintain.
If I want to show my son the games of my youth, the laws of copyright may not apply (the disks/cartridges may be in a box at my parents house), but with no way to play them, the laws of code render them gone. The copyright system simply has no way of maintaining preservation of our digital past. Websites go up and down, articles disappear or are archived, and the only record may be a print out that someone grabbed at the time, threw in a box, and has no legal right to republish.
The intersection of law and code is interesting, because the code permits saving the file and ANYONE republishing it, while the law prohbits anyone from doing so. Alternative, in the case of abandon ware, the law permits me to own and play my purchased copy, but doesn’t permit any reasonable way of actually doing so without the works of those flaunting the laws.
Napster may be long gone, but for over 10 years, nobody assumes an obligation to pay for anything, just choosing to for convenience. Copyright is increasing a blunt instrument, simply at odds with how people publish and consume content. Youtube lets anyone with an interest parody something, but leaves the enforcement of fair use to the increasing lawsuit nervous companies to simply take down something that uses a few seconds of clips. The meaning of copyright needs to be reconsidered when everyone can duplicate, creating of content may be increasingly expensive, and our culture may simply be at the mercy of technology.
Decades of movies that will never be released in a digital format may exist in people’s VHS collection, but without a way to play them, they’ll simply be lost. Culture is important, and who knows what future historians will be interested in when researching culture of the 20th and 21st century. Some of our early writing samples are of mundane things, simply because they survived, and it is tragic if we simply litigate our creative history out of existence. Current copyright is obsolete, and a new line needs to be drawn to preserve our culture and our rights.
Disney may not be interested in re-releasing Song of the South, but should they be allowed to keep it out of the nation’s cultural archive?