The image, the imagined, the imaginary – these are all terms that direct us to something critical and new in global cultural processes: the imagination as a social practice. No longer mere fantasy (opium for the masses whose real work is elsewhere), no longer simple escape (from a world defined principally by more concrete purposes and structures), no longer elite pastime (thus not relevant to the lives of ordinary people), and no longer mere contemplation (irrelevant for new forms of desire and subjectivity), the imagination has become an organized field of social practices, a form of work (in the sense of both labor and culturally organized practice), and a form of negotiation between sites of agency (individuals) and globally identified fields of possibility. -Arjun Appadurai, Disjuncture and Difference, Modernity at Large

Before we tackle the specific (specifically legal) questions of copyright, I’d like to jot down some notes on a broader subject: the processes of communal imagination (that we know as Culture) that are fundamental for a discussion of the “public domain”.

In a video linked from James Boyle’s The Public Domain, Wikipedia’s Jimmy Wales explains that the public domain is “a new kind of folk culture”, another speaker adds that it is “a shared culture.” I believe that, by definition, any culture is shared (and in a way, folkloric). Culture is precisely a set of signs, symbols, values and customs that a group of people have in common. For the Yoruba, all myths, songs, stories and historical accounts (all “cultural artifacts” intrinsic to their culture) are grouped together under the term “itan”; certain classical Arabic poets were so instrumental in defining genres that any later author who wrote in the same mode simply signed with the same name; holy books, though touched by many hands, are often attributed to a single “Spirit”. In the West, we are much more concerned with the “owners” of ideas, the individual authors who created (and copyrighted) the bits and pieces that make up our imagination. Nonetheless, it would seem that Jefferson was very conscious of the relationship between the part and the whole (thoughts and the cultures they inhabit) when he spoke of “an idea, the fugitive fermentation of an individual brain”. A thought, unlike an object, isn’t grounded in the physical world, and has the ability to spread like fire through individual minds until it is appropriated by an entire community. In this way, an idea cannot be owned and controlled like physical property, as soon as it is communicated it is in the public realm, and the limits of the public realm are almost impossible to trace.

I grew up in Colombia, where symbols of fervent religiosity (imported from Spain) and confused nationalism exist side-by-side with endless amounts of stolen (and beautifully perverted) images from US American culture. Bart Simpson taking a piss is a common motif airbrushed on the buses of my city. Obviously nobody pays attention to the illegal use of this copyrighted character, its makers and users are too far away from the real markets, but what will never cease to shock me is how popular it is, how communicable and significant the symbol “Bart Simpson” is to a people who are so distant from those who created it.

Theorists of modernity have often explained this through the rise of film and television (which in so many ways prefigured our use of the internet). Miriam Bratu Hansen (who died this week), claimed that Hollywood cinema was instrumental in the creation of a “modernist vernacular”, a sort of coherent visual language of types that could be communicated across nations and beyond tongues. This isn’t as Utopian as it sounds: it implies the creation of Mickey Mouse but also of the rigid stereotypes used to represent all cultures deemed foreign and exotic by Hollywood. But things have changed since Hollywood’s “Golden Era”, and though entertainment is still controlled by a few corporations (the same ones that desperately need copyright for their survival), more people are capable of speaking (and subverting, and reinventing) the common tongue. My point is that simply speaking the language implies using (stealing?) its parts. The (terrifying) essence of this is made obvious in Pop art: Marylin’s face is a powerful sign for an entire culture, and so it doesn’t belong to Warhol or MGM or even herself. It is simply another particle of a language and languages, strictly speaking, cannot be owned.

Chaotic tongue:

Mark Helprin makes an interesting point in his 2007 op-ed piece, “A Great Idea Lives Forever. Shouldn’t Its Copyright?” Arguing exactly what the title suggests, Mr. Helprin draws an analogy to property, noting that it would seem silly to us were someone’s property rights to be taken away by the government at a set point in the future.

We all know why this happens, though; we want “to promote the Progress of Science and useful Arts.” But as Mr. Helprin points out, we are harming innocent artists in the meantime. There is a balancing act in play: if the copyright protection is too great, then we hamper the creativity of new artists who want to draw on old material without licensing it or risking a lawsuit; too little, and we give artists, scientists and authors no incentive to create new works at all, as the public will steal them. One might argue that 70 years is, in fact, much too long; most artists will no longer be around to enjoy their royalties by then anyway, and we stunt creativity in the meantime. Mr. Helprin would disagree. Think of the families, the descendants, and perhaps even the family friends and third cousins of a brilliant author such as Mr. Helprin. How cruel it is to remove this source of income and sense of pride that comes from owning a copyright! After all, in America we encourage people to become phenomenally wealthy to the point where their descendants do not have to do a day’s work in their lives. This privilege, however, seems doomed to run out for the children of authors and artists, but not of the children of corporation owners, whose stock in the corporation will never be eliminated or lose value as long as the business continues to prosper.

Surely this is a massive disincentive for artists and authors to create new works! Just because some creators are willing to work for free does not mean that we can inhibit the capitalist rights of those artists who choose to do it for a living. Or can we?

Lessig’s communist hippies henchmen boys want everything to be freely shared. They argue that creativity is hampered by current copyright, noting that music, science and art have always evolved in the past by building on the work of other people. “If I have seen further, it is by standing on the shoulders of Giants,” a famous man once said, but did he ever stop to consider the royalties he owes to the Giants? If he cannot pay a licensing fee, he cannot stand on their shoulders. This is how our country works. An alternate solution that Lessig’s copyright terrorists boys might consider is maintaining copyright forever, but drastically increasing the bounds of fair use, and clarifying those bounds so that progress can occur. A reasonable man might see that the Progress of Science and useful Arts is the goal here – not only what the founding fathers intended, but also what is of greatest benefit to society. Mr. Helprin, however, sees The One Truth: that this is all a set-up to ensure that the creator of an idea can get not only credit for it, but also the ability to profit from the idea for the rest of time, never mind the cost to society. He defends this by noting that Congress cannot infringe other people’s rights just because it is for the public good. If Mr. Helprin paid a licensing fee to stand on the shoulders of a Giant, he might see that Congress actually does this sort of thing all the time. For example, Congress takes the money of every citizen with an income and uses it for the public good, calling this ridiculous notion “taxation.” The government also reserves the right to take one’s house, if it is blocking an important road; the homeowner is given compensation, but it is still a clear example of the public good trumping an individual’s rights. Mr. Helprin’s argument about the “infringement of individual rights” could, in fact, be used as a justification for doing away with laws entirely. Laws exist to balance individual rights with public good. The police infringe my right to drive 100 mph all the time, citing “public good” as a reason for the existence of the speed limit.

Finally, there is an important distinction between physical and intellectual property which escapes Mr. Helprin. By building something on top of a house, the house and its occupants are adversely affected. By making a piece of property useable by the public, it affects the pleasure of its owner. With intellectual property, there is no harm done to the original work when it is modified or cited. We don’t want to do away with copyright entirely; it’s important to give the author credit and the ability to profit from his creation. This is why copyright exists: to incentivize the creation of new work by protecting it. But there is no reason to make this protection last forever, or even as long as 70 years. Plenty of people create art for free with no expectation of financial remuneration, nor any intention of ever using a copyright to protect it at all. Other artists want their dues, but recognize that they all mix and remix and that this is an essential part of the growth of culture. 70 years is already a huge damper on this. As long as we can ensure that the truly talented artists are able to make a comfortable living (and thus can devote their lives not, for example, to a second job but rather to doing the absolute best job they can with their art) and are appropriately credited (because fame is a better drug even than money), we should keep the benefit of society as our primary concern.

In 2007, Mark Helprin wrote an editorial entitled “A Great Idea Lives Forever. Shouldn’t Its Copyright?” Larry Lessig, the Aragorn of anti-copyright, replied,

“So I’ve gotten (literally) scores of emails about this piece by Mark Helprin promoting perpetual copyright terms. ‘Write a reply!’ is the demand. But why don’t you write the reply instead. Here’s a page on wiki.lessig.org. Please write an argument that puts this argument in its proper place.”

327 edits and four years later, you can still find the ongoing rebuttal that Lessig never had to write. Perhaps most importantly though, all these authors gave their work away, copyright-free, for free. Since other people have already rebutted Helprin, I’d like to ask a different, trickier question:

Why do people do things for free?

I hope Mr. Helprin has an answer. I hope he wrote his books not just for a nickel every time they sold a copy, but so his ideas could reach across the page and touch everyone that read his thoughts. Before Mt. Everest killed him, George Malloy was asked why he climbed mountains, and he replied, “Because it’s there.” It is natural in all of us to work, and strive, and create, even if it costs us dearly. Copyright law does not strongly incentivize creation. It encourages corporate sponsorship of creation, it creates paths of monetization and control for art, but for the most part, I believe people don’t do things for a buck.

Francis Ford Coppola on film: “Who says art has to cost money? Who says artists have to make money?… Try to disconnect the idea of cinema with the idea of making a living and money.” To be clear, I think Coppola is wrong. I think the best artists will make money, will warrant patronage, and profit from their skill. But for the first time in history, it might not require resources to be an artist: the skill and publishing costs have fallen so far that we all can contribute. Coppola says that in olden times, artists didn’t make money. Back then, only the fabulously wealthy could engage in art and culture: they were the most opulent extravagances. Today, we have Google Art. Anyone can see the great classic paintings, in exquisite detail, with a $300 computer and an internet connection. But we also have icanhazcheezburger. Anyone can make the next great meme with a $300 computer and an internet connection. Art today is consumed more widely and made by more people than it ever has been before. Justin Bieber’s hit single “Baby” has grossed 455,000,000 views in under a year on Youtube. (Did that freely available art hurt Bieber’s success? Probably not, claims Google.) As audiences and producers change, it’s important for our societal standards to push past thinking about copyright as a way to restrict or monetize things, and instead think of most creative contributions as a donation into the community: once unshackled onto the internet, don’t attempt to re-cage it, and certainly don’t try to force people to pay for it.

Social psychology has grappled with questions about why we help people. From Latane & Darley, we get the Bystander effect. Yet the internet is teeming with bystanders, and people still help out, enough to generate wonderful resources like Stack Overflow, Yahoo Answers, and Youtube comments (ok, so sometimes they aren’t wonderful resources). The most relevant ideas in internet helpfulness, and the things that might push us past copyright in creative endeavors, are the following:

• Imitating other helpful people

• The Internet alleviates a lot of time pressures

• Similarity, or lack thereof

Imitating other helpful people

It’s well known that some communities foster excellent helpful communities, while others are rife with suspicion, bigotry, and hatred. The internet does occasionally produce the Gabriel theory of greater internet fuckwad theory. Yet there also exist places on the internet where trolling is hated and injustices corrected.

By building internet communities where stand on each other’s creative works, via remixing, memes, and constructive criticism, it’s possible to build a post-copyright world. We naturally imitate other helpful people: join a community of helpful artists, and you’ll be inclined to give away your creative works too.

No time pressures

When hurrying by a man lying face-down in a pool of blood on the sidewalk, you might be too distracted with your own hurried life to even notice him, much less help him. This is an embarrassing yet real tendency of humans. Yet the internet is usually engaged in leisure time, when you have no pressures. Therefore, people on the internet consistently undertake projects that take hundreds of hours to produce something that they never profit a dime on.

Similarity

Finally, the internet is faceless. We are brought together by shared interests, or similar aspirations. Does the internet reveal profound bigotry and prejudice? Yes. But is it possible to externally check if the person you’re IMing is white? Or judge the age of the previous commenter? By removing these prejudices, we break away from our implicit associations and prejudices, creating a freer world where we are more likely to help those of us that are externally different.

The great hippie commune never happened for a lot of reasons. Most importantly, humans need production to exist. Production of food, of machinery, of services. But we have the opportunity for a different kind of commune, one of shared knowledge and creativity. Production of an idea is a long and arduous process. But its reproduction is a few kilobytes across a wire, around the world a billion times over again. If Bieber can do it, if Wikipedia can do it, we can build a communal expectation of free. Once we’re all helping each other, we’ll have made an intellectual community we ought to all be proud of.