from the infringement-as-restoration dept
One of the things I've never liked about copyright is its potential to be the functional equivalent of censorship. Sometimes this censorship comes about because an author didn't get permission to create his work in the first place (see: Richard Prince, JD California). While this unfortunately turns judges into cultural gatekeepers, it's been deemed a necessary balance between copyright law and the First Amendment, and harm to the public is arguably lessened by the fact that we don't know what we're missing; because the censored work is never able to reach and impact us, we've only lost the potential of its cultural contribution.
However, other times a work is created with the initial blessing of copyright, makes its mark on the public, then becomes effectively censored down the line due to licensing restrictions (see: The Wonder Years, Werewolf). This is much more culturally pernicious because it deprives the public of a work already in its lexicon, and the sense of loss is far more palpable as a result. Often, the only way to get the work back in the public's hands is to perform triage, excise the no-longer-licensed content, and try to be happy with a bastardized version of the work (see: WKRP in Cincinnati, The State).
What's interesting, however, is how we've seen the Internet step up to effectuate cultural preservation, when copyright law stands in the way. I recently picked up a DVD collection of Daria, one of the last good things MTV ever produced. The show had an immense impact on my childhood, in no small part because of how it helped frame pop culture for me with its liberal use of MTV-placed contemporary music, and I was incredibly excited to relive that experience. When I opened up the DVD case, however, I was greeted with the following message:
For those who can't see the note, it says in the pertinent part:
"So let's answer the big question right away: 99 percent of the music has been changed, because the cost of licensing the many music bites we used would have made it impossible to release the collection (and for many years did). So no, these aren't the shows as aired, but more like one of those astronauts in a TWILIGHT ZONE episode who returns from space and his wife can't figure out what's changed about him, until it slowly dawns on her that instead of a cool song from 1997 playing when he walks into the room, it's some tune she's never heard. Yeah, it's just like that."
Needless to say, I was disappointed. As I Googled around for more information, I could see
many other fans of the series felt the same, opining that, "when I watch the show without proper music it feels as though one of the main characters is missing," and "even to those who say they didn't pay much attention to the music, I think you'll still sense an absence." Then I stumbled across something else entirely. Something called "The Daria Restoration Project."
Essentially, certain Daria fans had taken to combining the high-quality video and spoken audio of the official DVDs with the music that accompanied the original broadcasts, either sourced from old television recordings or by manually inserting the pertinent songs. They're doing their best to preserve the fidelity of a major piece of culture that is currently only legally available to the public in crippled form.
And of course, their curating efforts are 100% illegal, punishable by hundreds of thousands (if not millions) of dollars in fines.
To be sure, copyright owners are supposed to be able to control how their works are used to create new works outside the bounds of ideas and fair use (
though we don't always get that right). However, allowing copyright licensing to prevent the public from accessing the proper versions of culturally-significant media,
after their creation and initial publication has already been sanctioned, almost smacks of a marketplace parallel to
the European "right of withdrawal." It not only presents a huge hurdle to the preservation of certain works, but robs the public of the value they placed in that media while it
was available to them.
While
the Internet is not nearly as "lawless" as many would like us to believe, there are certainly pockets of it where the traditional rule of law is less readily applied. And though this poses a challenge to society in some aspects, there is also undoubted utility in having these pockets able to function in the interest of the public, the proper beneficiaries of copyright law, when the legal state of play so radically conflicts with that interest. As a law student, I'm not happy when I see pirates doing a better job than copyright owners at preserving and spreading culture; after all, the Supreme Court recently noted
in its Golan decision that copyright law can serve its core purpose not only by incentivizing the
creation of works, but the
dissemination of them as well. Yet here we see copyright hurdles completely inhibiting the proper dissemination of legally-created works through economic censorship.
Well, as John Gilmore once said, "The Net interprets censorship as damage and routes around it." So until copyright law manages to untangle itself and properly serve its own fundamental purpose, I'm glad we can rely on pirates to do its job for it.
50 Comments | Leave a Comment..
RSS
