Kembrew McLeod: Freedom of Expression

I am indebted to Robert Nagle, a commenter on the Gerard Jones affair, for pointing me to Kembrew McLeod's important book, Freedom of Expression: Overzealous Copyright Bozos and Other Enemies of Creativity. Should you wish to read it, you can download a free pdf version from the author's web site. And, if you care about personal liberty, freedom of speech, and all like that, I strongly recommend that you do.

It seems to me that European culture -- and for this purpose I take Europe to include North America -- has given the world almost everything of any value: certainly as far as material wealth and social organisation are concerned. But it is noticeable that, even within the overall envelope of European culture, it is all too easy for despotism, of one sort or another, to become the ruling paradigm. (You see? That word paradigm gets in everywhere sooner or later. But you also see what I mean, I hope. And if you don't, what I mean is that it is all too easy for the forces of darkness to prevail.)

And now, as if we didn't have enough to worry about, Kembrew McLeod comes along and tells us of the growing danger to our ability to say what we think, be inspired by a book or a piece of music to write a new book or piece of music, and even, it seems, to use certain gestures and groups of words. Just for starters, and just to prove how silly and dangerous a world we live in, Kembrew tells us that, while an undergrad, he trademarked the term 'freedom of expression'. So he 'owns' the term freedom of expression, in the same way that Fox News (bless them) 'own' the term 'fair and balanced'. (Fair and balanced! Ha! Pause while author tries to stop sniggering and regain a straight face.)

Thus Kembrew McLeod has the legal power, should he wish to use it, to prevent you or me from publishing (at least in the US) a book with the title Freedom of Expression. Which he would not do, he tells us. What he has done, just to emphasise the absurdity of a law which allows someone to trademark a few words like that, is to sue the giant phone company AT&T when they used the phrase freedom of expression in an ad.

Do you begin to get the idea? We live in a lunatic, lunatic world, in which legislation allows big companies to exercise iron control over what you say, write, and, if they have their way, think. For further example: Donald Trump has trademarked the words 'You're fired'; and not only that but he has also trademarked the hand gesture that accompanied the phrase when he used it on the TV programme The Apprentice. And, turning to copyright law, did you know that the song Happy Birthday to You is in copyright? It belongs to TimeWarner until 2030, and don't think they won't charge you a fee for using it at your kid's next party -- if they find out. No incidence of copyright infringement is too small for some of these greedy bastards.

I could go on. I could point out that, if you want to quote Martin Luther King's famous 'I have a dream' speech, in print, King's heirs and successors will expect you to pay $50 a sentence for the privilege. I could point out that the Church of Scientology has used the copyright laws to prevent Google from leading any internet searchers to sites which criticise said Church. And I could remind you, if you need reminding, that intellectual-property owners who take a dislike to your web site can easily make you disappear from sight by threatening your ISP. And I could warn you that, if you visit a privately owned shopping mall wearing a T-shirt with a slogan that the owners don't like, they can get you arrested. But there are limits to my endurance. I can read and quote only so much of this nonsense and downright wickedness before I throw up my hands and say The hell with it.

What you need to know is this. Recent US legislation, particularly the Sonny Bono Copyright Term Extension Act, and the Digital Millennium Copyright Act, have given additional powers to those whose greed, stupidity, and commercial shortsightedness know no limits. And the result is a potentially disastrous chilling effect upon artistic creativity and the interchange of scientific knowledge.

Here, to illustrate the practical problems which can arise from all this, are a few examples of relevant events in just the last week or so. I make no comment, please note, about the rights and wrongs of any of these cases; I simply note that these are instances where people have got their hand caught in the legal mangle, or where a big corporation is trying to do something to extend its powers.

Andrew Knight is trying to patent a storyline. Judith Kelly is accused of plagiarism. And Cambridge University has angered dons with proposed changes to rules allowing them to patent inventions; critics fear that the proposal to reform the system of intellectual property rights at the university will crush academic freedom, when the rights to ideas are no longer controlled by the creators. The University of Georgia Press has withdrawn Brad Vice's The Bear Bryant Funeral Train. And Amazon.com (which has already patented the one-click ordering system) has just been granted three further patents, including one on consumer reviews.

Fortunately, for the likes of you and me, there are a number of defenders of the faith. First, there are university professors such as Kembrew McLeod and Lawrence Lessig, who are intelligent, well informed, and courageous, and are telling it like it is. They are in the vanguard of the war, and it is a war, against those who wish to impose total monopoly control in copyright situations. They argue instead for the tradition of openness, maintaining that copyright law is intended to promote the dissemination of creative expression, not suppress it.

The second encouraging factor -- and it is a measure of how deep a hole we have dug for ourselves that I, who have never had so much as a parking ticket, should say this -- the second encouraging factor is the existence of a large number of young people who can only be described as anarchists. They are people who are simply not going to stand there and take this shit. Why should they? They have fifty years of active life ahead of them -- why should they allow what they see, read, listen to, and say, and create by way of art, be dominated by some corporate asshole?

In 2000, the Metallica guitarist Lars Ullrich made a very serious mistake. He volunteered to be the front man for an attempt to close down Napster, an attempt which included a personal visit to Napster HQ with lawyer and press accompanying him. A crowd formed outside, and a teenager screamed at him, 'Fuck you, Lars! It's our music too!'

And you know what? The kid was right.

No one is suggesting here that talent and hard work should not be rewarded. Far from it. Any and all digital availability of professionally published music, or prose, or images, should, in my view, be directed towards generating the maximum possible income for the creators. And so when Cory Doctorow makes free digital copies of his books available for download, he does so not out of any charitable instinct but because he thinks that that's his best marketing strategy. And I agree.

The point being made here is not that music should be free for everyone, all the time. The point is that it is not a smart move to alienate, and make criminals of, the people who are most passionate about your product. Music, in particular, is meaningless without an audience. And Metallica's fame and fortune had been built upon a fan base which, when the band was all but unknown, repeatedly violated the copyright laws by taping concerts and exchanging cassettes. Signs are that Lars Ullrich found out the hard way that he'd got it all wrong when he talked about piracy. So have thousands of others, including the big-time business executives who don't have a clue about what inspires the creative drive which results in their precious product; and who really don't understand how to get the best out of it in terms of revenue generation.

The publishing industry, bless its little cotton socks, seems intent on repeating all the mistakes that were made by Hollywood with the video-cassette recorder, and by the music industry twice -- with cassettes and then with downloads.

So -- what, if anything, is to be done?

Well, my advice, for what's it's worth, is that, to begin with, you should read Kembrew McLeod's book. Freedom of Expression is scholarly, learned, and yet informally written and readily readable; so maybe there's hope for America yet. I could have done with more sub-headings in the chapters, because I am a simple sort of fellow, easily intimidated by unbroken slabs of print.

Next, instead of playing Ain't It Awful, you should do something positive. You must have some expertise in something. Write it up, and post it on the internet for free. Instead of making a fool, and a nuisance, of yourself, by trademarking a phrase or trying to insist on payment for your work, give it away for free. Stick a Creative Commons licence on it (as on this blog). Encourage people to use it, transform it, make money out of it if they're smart enough.

Finally, don't -- please don't -- fall into that dreadful writer's trap of imagining that you are the next J.K. Rowling, and slap a big fat copyright sign on everything you write, complete with dire warnings about suing the arse off people who even quote it to a friend. Acquire a little dignity, and a little common sense. You and I should count ourselves lucky if we find half a dozen readers -- apart from Mum -- who will even bother to read our work through to the end.