Paul Goldstein, Copyright's Highway: From Gutenberg to the Celestial Jukebox Hill and Wang April 1996 $21 cloth $12 paper ISBN: 0809015919

Ronald V. Bettig, Copyrighting Culture : The Political Economy of Intellectual Property (Critical Studies in Communication and in the Cultural Industries) Westview Press January 1997 $60 cloth $24.95 paper ISBN: 0813333040

Negativland, Fair Use: The Story of the Letter U and the Numeral 2 (with CD) Seeland/Mordam 1995 ISBN 0964349604 $19.95 paper

"Information wants to be free." Stewart Brand's slogan describes one of the fundamental realities of life on and off the Internet. "Information goods" and their analogues can be spread quickly and almost costlessly. It costs little for me to tell you the formula, to reveal which chemical compound is an effective drug, or to copy the book or the computer program. To the extent that there are costs, they are constantly falling. We have moved from the scribal illumination of manuscripts to the downloading of the Heaven's Gate website, and copying costs have fallen at every step. But if information wants to be free, we aren't always ready to sign the emancipation proclamation. If information -- and the books or recordings that share many of its features -- were indeed free, what would be the incentive for the next author, inventor or programmer?

This is not exclusively an information-age issue and the law of intellectual property is not the only answer to the question. Renaissance guilds guarded the secrets of their technology behind apprenticeships, restrictive contracts and arcane initiation ceremonies. Elizabethan theatres hired bouncers to eject those found copying down the words of a play. (A less dangerous method of filching a new script was to get an actor drunk and then just wait for the inevitable recitation of his lines. It does one's heart good to think that, four hundred years later, worthy scholars would be scratching their heads over sack-induced variations in competing versions of Marlowe or Shakespeare.) Information technology can provide methods to lock itself up; software companies sometimes encrypt their products, relying on digital fences rather than paper writs for protection. They may even structure their businesses so that the copy-able content is free -- aiming to recover their revenue from tied services and advertising. This was Netscape's original strategy. But at the end of this list of methods to solve "the copying problem" comes the law, and in particular, that branch of intellectual property law called copyright. And because the information economy now comprises such a significant portion of GNP, copyright law has been dragged out of its slightly eccentric legal resting-place to become an issue of international conflict, a new locus for debates over political access and monopoly power, even a question of civil liberties and free speech. Admittedly, the process has been going on for a long time now but its radical nature is increasingly apparent. It is as if admiralty law or the rule against perpetuities had suddenly become the linchpin of international capitalism.

Copyright's longtime insiders appear to find the attention both flattering and annoying; pleasantly surprised by the importance they are now presumed by their audience to possess, they nevertheless show occasional proprietary irritation as their field is pawed over by parvenus and policy wonks. How to explain the tenets of their faith to those who don't understand the copyright connotations of "sweat of the brow," or who think that "fixation" is something that only occurs in Bergman movies? The books reviewed here offer three very different answers.

Paul Goldstein, copyright professor at Stanford law school, acts as the consummate insider. His book "Copyright's Highway: From Gutenberg to the Celestial Jukebox" provides an urbane and marvelously readable capsule-history of copyright doctrine and policy from the printing press to the Internet. (The Celestial Jukebox of the title is an imaginary technological system combining satellite pay TV and the Internet. Text, music, video, research -- everything on demand.) Readable does not imply simplistic -- by personalizing the conflicts and cases that have marked the law's major transformations, he is able to cram a remarkably large amount of information and analysis into a small space. Debates over the definition of "public goods" in economics, or the conflict between the Continental and Anglo-American tradition of copyright are covered in a painless but thoroughgoing fashion. The tone is that of a learned guide showing you round a castle he knows and loves; every battlement prompts a new anecdote. Ronald Bettig, on the other hand, is a copyright outsider or at least a critic. "Copyrighting Culture" is a skeptical Marxist analysis that sees copyright law as another rigged system of property rights, ensuring that the rich get richer and the poor get prison even when Jean Valjean is stealing bytes rather than bread. As Goldstein is airily discussing the flying buttresses, Bettig is staring dourly at the dungeons. Finally, "Fair Use: "The Story of the Letter U and the Numeral 2 " by Negativland offers a different kind of outsiders' story; the perspective of a group of musicians who see copyright as the legal incarnation of a corporate aesthetic, an 'art form' made safe from critics because it really does have the force of law behind it. "Fair Use" (and its accompanying CD) present an absurdist documentary history of Negativland's forcible education in copyright law -- an education they gained largely from being sued by the record company representing the rock band U2. The record company did not appreciate Negativland's "parodic" sampling of U2's work, nor their use of the words "U2" next to a picture of the U2 spyplane on the album cover. Each of these books has strengths and weaknesses, but together they give a thorough -- almost stereoscopic -- picture of the politics of property in an information age.

The primary tension in Goldstein's book is that between the "copyright optimists" and the "copyright pessimists." Copyright optimists believe that the author has a right "rooted in natural justice" to "every corner of the market." Optimists would write a copyright statute that tilted decisively towards the author at every point, in every medium. The optimists' idea of copyright is both broad and long; it covers the widest possible range of uses for the greatest length of time. Thus the optimists' notion tends to reduce the rights or privileges available to the public and to future creators -- diminishing "fair use," say, by limiting the right to quote, parody or to photocopy for classroom use. The copyright pessimists, on the other hand, "accept that copyright owners should get some measure of control over copies as an incentive to produce creative works, but they would like copyright to extend only so far as is necessary to give this incentive, and treat anything more as an encroachment on the general freedom of everyone to write and say what they please." Goldstein uses the tension between the optimists and the pessimists to explore some of American copyright's defining controversies -- the photocopying of medical journal articles for researchers by the National Library of Medicine, for example. For the optimist, the right to a licensing fee for every page photocopied is simply another of the author's bundle of rights. For the pessimist, this kind of research-oriented copying falls within one of the fair use limitations imposed as part of the public's "price" for the grant of a state-created private monopoly, a monopoly called copyright. Indeed, says the pessimist, the privilege to make fair use copies actually serves the system's underlying goal -- like the copyright itself, it is a way of encouraging the production of future works. Implicit in Goldstein's presentation is the idea that this split between optimists and pessimists will actually ensure that copyright is able to adapt to new technologies: the dialectic as legal survival strategy.

As befits this theme, Goldstein strives to give a balanced presentation, yet his feelings appear to tilt towards the optimists -- their stories are told in richer and more sympathetic detail, their counter-arguments presented in greater depth. As more of a "pessimist" myself, at least in Goldstein's terms, I disagreed at times, particularly as he came to describe the future of copyright on the Net and beyond. The optimists seem willing to give copyright owners a range of rights that goes beyond what is either necessary or wise, curtailing the existing rights of readers and future creators in the process. The book would also have benefitted from a more detailed discussion of the optimists' "natural justice"; how can an idea of natural justice be detailed enough to support a specific, broad version of this most artifactual of all property claims? How can an extensive natural right can be squared with the debts we all owe to past authors and creators? Quibbles aside, Goldstein's lucidity, breadth and comfortable authority will probably establish Copyright's Highway as the introduction to the field, and one with a wide potential audience. A non-lawyer could read this book and come away with a solid understanding of copyright law and of the way it responds to social and technological change, while many a law student will bless Goldstein as exams approach.

Ronald Bettig's work takes a much more skeptical and less sanguine view of copyright. This book is an important and useful contribution to a surprisingly small marxisant literature on intellectual property. While Bettig generously acknowledges the earlier work of writers such as Edelman, he seems to have been most strongly influenced by the Bagdikian School of media criticism. As the liberal press was patting itself over the back for its commitment to free speech, Bagdikian was pointing out the astonishing economic concentration in the media industry and asking whether the stress in the phrase "marketplace of ideas" should be on the first word or the last. A large, and perhaps the weaker, portion of Bettig's book is the attempt to extend this analysis into intellectual property, to show that culture has been commodified by big business and that the legal name of the commodity is copyright. Again and again he points out that corporations try to have intellectual property rights defined to suit their economic interests and that this is often one of the guiding forces behind legal development. The point is not a new one but it is well-taken; in the United States copyright has been described as the most technically perfect example of "industry capture" of the legislative process. The use of the legal system for industry rent-seeking is often so obvious that it is embarrassing. If a cartoon called "Steamboat Willie" is shortly to enter the public domain as its copyright expires, bearing with it the first incarnation of Mickey Mouse, nothing is more certain than that the Congress will suddenly be convinced of the need to "harmonise" copyright law and add retrospective encouragement to those dead authors by protecting their works for seventy years after their deaths rather than a mere fifty. (Expect a surge in work-product from Hollywood's graveyards.)

But precisely because of the overwhelming crudity of these highly visible examples, there is a danger that some of copyright's more interesting and subtle features will be missed and this Bettig sometimes seems to do. Indeed to a certain extent this tendency is inherent in his method; the more one's analysis depends on economic determinism the more irrelevant the features of a particular legal area will seem. If you think law is the expression of the interests of the economically dominant class (or even more crudely, the will of a few big companies) why focus on copyright, or any particular legal category, at all? Everything that is true for property will be true for intellectual property. A reductionist method and a particularist study don't fit together well and there are moments in Bettig's book where the chafing between the two is obvious. In fact, there are significant ways in which intellectual property is unusual -- even from within a Marxist perspective -- which a reductionist analysis will simply miss.

To mention only a few examples: there is considerably more dispute about the desirability, role and extent of intellectual property -- even among defenders of the free market -- than there was about the desirability of private property in general. What implications does this have for democratic debate about copyright? In economic terms, how is it possible for there to be a single corporate interest, a single corporate vision of intellectual property? Surely corporate interests would differ both across a marketplace (for example, the tension between those companies who want an "open" or "closed" architecture for computer systems) and across time (for example, the difference between Microsoft's ideas of intellectual property before and after it had achieved market dominance in operating systems.) In ideological terms, isn't there something interesting about the fact that copyright goes, at least initially, to the creator of a work? How can we reconcile this fact (much limited in practice) with the tradition of a legal and economic system not otherwise keen to give those who labour property rights in their products? Is part of the attractiveness of the system its vision of rewarding creative labour -- that it offers to some of the workers of the word a right that Marx would have given to all of the workers of the world? In terms of international politics, how does the structure of international trade and the relative power of rich and poor nations change when the value of a product increasingly comes from its information-content, and the protection of that value increasingly comes from intellectual property?

It is not that Bettig fails to consider these issues; indeed his book provides a thoughtful commentary on all of them, with particularly strong chapters on the economics of intellectual property and its international dimensions. It is that these analyses have to be developed at a tangent to his main argument and their significance is constantly being undermined by an underlying determinism. Like most determinist world views, this one produces an Eeyore-esque pessimism about the possibility of any productive political change. What's the point? The system will coopt incremental change and revolutionary transformation is impossible. Bettig recognises the tendency towards gloom, doom and apathy and strives in his last chapter to take the viewpoint of "the Marxist optimist" rather than "the Marxist pessimist." Unfortunately, Marxist optimism seems to consist mainly of chiding postmodernists and identity politicians for their flighty selfishness and exhorting them to work together to overthrow global capitalism. The economic and ideological complexity and practical clash of interests revealed within intellectual property by his own excellent book might have provided Bettig with better cause for optimism.

The members of Negativland share a number of things with the other two authors. The band seems to fit Goldstein's "copyright pessimist" category, they are skeptical of expansive intellectual property claims and they stress the extent to which all art depends partly on the appropriation and breakdown of prior art -- a sort of fertile cultural compost heap. With Bettig they share a concern about the commodification of culture and the effects that this commodification can have on the freedom to speak and create. Being sued for their U2 parody merely gave them the opportunity to explore both of these ideas under pressure. Negativland's legal defense was complicated by the fact that they clearly saw the whole legal process as an extraordinarily complex piece of performance art, but that didn't stop them from producing an iconoclastic critique of copyright and memorialising it in this book. The CD, captioned "Copyright Infringement Is Your Best Entertainment Value," provides a (fairly disappointing) example of Negativland's sampling practices, but does not contain the original controversial single -- which remains under a legal cloud. In the book itself, letters from lawyers and record companies are juxtaposed with newspaper articles, scholarly discussions, artistic manifestoes, and Supreme Court decisions -- one of which provides at least a partial retrospective vindication of some of Negativland's claims. After the settlement of the Negativland suit, the Supreme Court ruled that it was not a violation of copyright for the rap band 2 Live Crew to produce an obscene parody of the Roy Orbison song "Pretty Woman." As Justice Souter saw it, 2 Live Crew's injunction to the "big hairy woman" to "let the boys jump in" marked parody's "joinder of reference to ridicule" and was sufficiently transformative to be protected as fair use even though --like a devastating theatre review -- it might have an effect on the market for the original work.

"Fair Use" is packed with ironies. Negativland persuaded Francis Gary Powers Jr., the son of the man who flew the real U2 spy plane, to write a generous if bewildered introduction that nevertheless makes the point that U2's record company were suing Negativland in part for appropriating a name that U2 themselves had appropriated. At another moment, some of the members of Negativland, in an inspired combination of agitprop and covert infiltration, actually worked their way into an interview being given by U2's Dave Evans (a.k.a. 'The Edge') to the alternative magazine Mondo 2000. Evans spoke happily about U2's "Zoo TV" concerts which featured giant screens showing a flashing collage of images "sampled" from satellite TV and mixed with live feed from the concert. The Negativland imposters asked if this appropriation posed any legal problems. Evans reacted perfectly. "I don't think there is a problem.. I mean in theory I have no problem with sampling. I suppose when a sample becomes just part of another work then its no problem." When informed whom he was talking to, Evans' response was "Ahhhhhh!" To be fair to Evans, the record company was less upset by the parody than by the possibility that U2 fans would mistake the Negativland record for a new U2 release and buy it under that misapprehension -- a possibility that the members of Negativland admitted they "liked." Their attitude seemed to be that artists are supposed to upset the expectations of the audience; what could be better art than the unsettling surprise produced in someone who thinks they have bought more of U2's rather pompous rock and instead find they have a Negativland parody? The problem, which this book puts its finger on, is that in a record store one is confronting the audience as a "consumer entitled to be free from product confusion" rather than as "citizen whose artistic expectations may and should be subverted." The members of Negativland saw themselves as Brechtian figures, shouting "this is just a play!" at the audience; U2 saw them as hucksters selling imitation Rolexes to rubes. Verfremdung or just plain old fraud? In "Fair Use," as in the other two books under review, intellectual property law has become the boundary line, or perhaps the hinge, between art and commerce, between 'free speech' and economic monopoly, between public culture and private property.

James Boyle is professor of law at American University in Washington DC. His most recent book is Shamans Software and Spleens: Law and the Construction of the Information Society (Harvard 1996).