ISHTIP at Penn, part 6

Session 4 | Traci Zimmerman (James Madison University), Moderator

 

Confederate Copyright: The Role of Nationalism in Designing a Copyright Regime

Shane Valenzi (Carmen D. Caruso Law Firm, Chicago)

Commentator | Shyam Balganesh (University of Pennsylvania)

 

In addition to examining the story of how the Confederates made copyright law, draws normative lessons for law and policy. Using history not just for its own sake. 

 

Rich paper (I very much agree), so broad summary only: 1790, 1831 federal copyright acts were fiercely protectionist, not extending protection to foreign authors.  This was not unnoticed—deeply contested, conscious choice, multiple failed reform efforts over the years, esp. post-1830.  Senator Henry Clay introduced multiple amendments in this area.  Tried to convince public that extension would benefit US authors.  British authors/supporters offered kitchen sink arguments: lack of protection allows American booksellers to free ride on foreign authors’ efforts, an unjust enrichment rationale; not protecting foreign authors results in mutilation and alteration of works, a moral rights rationale; harm to US authors b/c foreign-authored works were cheaper, an economic argument about indirect harm; American public, not authors, was harmed b/c of the uncertainty of various editions they received, a consumer protection argument (mirror image of moral rights argument).  Doesn’t tell us what they thought of purposes of copyright law; Britain didn’t have moral rights at the time.

 

None of these arguments proved persuasive.  The only thing the Senate cared about was protectionism/nationalism.  Primary difference b/t US and Confederate copyright acts was extension of protection to foreign authors—this was an issue of heightened salience at the time.

 

Civil War breaks out; 1861: enact an independent copyright act as a piece of federal legislation.  Why?  Driven almost entirely by desire to make England an ally of the South.  All the publishers the US sought to protect were located in the North.  A few years later, extended the Act retroactively to pre-1861 works.

 

Effect of Act was empirically minor: only 122 titles registered in 4 years.  All, intriguingly, focused on the preservation of Southern culture/distinctiveness of Southern way of life.  Great Britain never became an ally.

 

Qs: what other kinds of unified laws did the Confederacy pass?  How did they pick their subject areas? Why is legislation useful as a signal? Are there additional sources sending a signal of commitment to Britain?  If many laws were signalling, that argument gets stronger. Also, why enactment instead of enforcement as a credible signal?

 

Lessons: this part is provocative/controversial.  New intermediate variable: nationalism can be a cloak for access, progress, and other rhetorical devices. Confederacy didn’t seem interested in incentivizing access, furthering moral rights, spurring creativity; moral rights rely on human rights framework—he says it’s hard to reconcile w/slavery, but that’s not so much a problem b/c (a) slaveowners didn’t care much about hypocrisy, and (b) moral rights are fundamentally based on citizenship, so if you define that to exclude slaves you don’t have a problem.

 

Nationalist interests as step zero in the © debate: the current state of IP output in the nation at issue, plus diplomatic interests. Balganesh disagrees completely—collapses descriptive w/normative. This is descriptively true: nationalism did the work of eliding the real balancing exercise. But to claim that normatively as part of ideal structure is unconvincing and problematic. What does national output mean? 

 

Internationally: US in mid-19^th c, w/underdeveloped authorship and sophisticated distribution systems, is not much different than today’s BRICs, breeding ground for piracy. Lacked authorial output to match capacity. Thinks that’s untrue. BRICs have significant amount of authorial output; the question is what portion they seek to put in the genuine/mainstream marketplace.  India clearly has a lot of debate about optimal structure of IP policy. It’s not b/c India is a pirate nation or a net importer.  [And here an enormous bug distracted me, sorry.]

 

RT suggests possible further reading: Stephen M. Best, The Fugitive's Properties: Law and the Poetics of Possession (about copying and race in the 19^th century).

 

Valenzi: Haven’t convinced myself about the normative conclusions.  When he discovered that there was a Confederate Copyright Act, his first question was why.  That has proven a difficult question to answer, but good enough for law review if not history journal.  Legal scholarship often uses history instrumentally.  No transcripts of floor debates before legislation passed, requiring conjecture for rationale for most Confederate legislation.

 

The legislature was quite active through the Confederacy—far more than they probably wanted/intended to be.  Not much passed in pursuit of creating int’l alliances, though. President Davis was urged to pursue an alliance. King Cotton strategy failed, as did their awful diplomats.

 

Research on patents was cursory so there may be more.  There were patents registered under the Confederate © Act.  As far as enforcement, there was almost none in district courts—only 1 case ever litigated.  A book of military tactics published in North, thus not eligible for protection in South, but Jefferson Davis asked the author—a Southern supporter—to republish in South; protection for earlier work was denied, and the result was amendment of law to make retroactive and law protecting that specific book.

 

Kara Swanson: there is a patent story here too.  Publishers could publish newspapers, pamphlets and books. Is this law designed to bring publishing to the Confederacy/domestic purpose as well?

 

A: Haven’t looked at newspapers but this is a WIP.  There was some publishing industry, esp. in Atlanta, and they did sometimes pay British publishers even before they were required to do so. There was concern in the US that if © were granted to British authors it would concentrate rights all in one NY publisher.

 

The first proposal for Confederate © Act was preceded by resolution that the Confederate Congress needed to respond to Emancipation Proclamation, and succeeded by compensation to a general whose horse died in battle. That’s quite a range. 

 

Jaszi: think about this story as of competing nationalisms.  Cultural and economic nationalisms are often in conflict. What do we know about “piracy” in the South? To what extent were reproductions coming out of Southern states, not just PA and NY?  IP clause of the Confederate Constitution is identical to US Constitution.  Southern diplomacy was not quite as disastrous as you characterize it as being—high water mark in end of 1862 when Gladstone came out as a big fan and said they were bound to win the war. 

 

RT: Descriptive, normative, pragmatic: third alternative (what should we predict, what tools are likely to work and likely to fail to lever changes).  Very clear that international relations arguments are key components of IP policy right now.  In fact arguably why they moved into TPP and other trade agreements is that nationalist interests proved too important to other nations; only when forced into some other deal would they agree to serve US (or at least big corporate) interests in IP.  But it didn’t work to get British support for the Confederates—analogies in 301 naughty lists; nothing China does is ever enough—Peter Yu’s work?

 

Sharing in Spirit: Kopimism and the Digital Eucharist

Aram Sinnreich (American University)

Commentator | Kristofer Erickson (University of Glasgow)

 

Reminded him of the Hacker Ethic: Weber’s concept of Protestant work ethic to try to understand hacker religiosity pervading the business world.  This paper explores a different religious group: Kopimists.  Protagonists: Isak Gerson, founder.  CTRL-C and CTRL-V are considered sacred symbols.  Kopimi symbol functions like a CC license. Contrasts copyright regime w/today’s globalized digital culture; what does a philosophy for/from the digital age tell us about the relation b/t philosophy and material social conditions more generally?

 

Is it mere pranksterism, a piece of absurdist political theater taken to its logical extremes? Originally a joke. Then someone got it registered as an official religion. Is it a hoax or tactic to tweak media appetite for spectacle or bypass © law?  And/or can we understand it as an authentic belief system, w/ideological integrity and consistency, ritualistic practices, and other hallmarks of religion?

 

Pranksterism: like/heir to Situationist detournement, which already had some copyright-oppositional practices in it? Aims to expose © as legally enforced ideological instrument by refuting it through a different legally sanctioned ideology. Situationists also wanted to draw attn to presence of ideology in the mass media image.  Bricolage: already directly confronting © through cutting and pasting. 

Why choose to perform an entire religion?  Target is not absurdity of organized religion, but absurdity of ©, its religious other.  Jedi-ism, Pastafarianism: other invented religions—a suitable tactic to be adopted to these aims?

 

Hoax: seeking legal protections to pirate w/impunity?  Again, Foucauldian tactic—maneuvering on a network of relations of social power.  Like medical marijuana advocacy in community of recreational users—by appropriating rhetoric of science and economics, activists advocate for decriminalization.  Normative political claims about ©: to keep source code hidden is comparable to slavery; IP laws are egregious violations of intellectual sovereignty and freedom.

 

Sacrament: Sacred valence of copying; similarity to monastic Christian principles/devotional practices—sharing of private information is detrimental, but sharing of public information is a sacrament. People decide for themselves: distribution of responsibility, antireligious sentiment: skepticism of moral authority is a core value. Suggests that monastic Christianity, copyright, and Kopimism can all be understood as governing information production during various periods related to technological development and information scarcity.  Monastic Christianity: sacred duty to spread the Word, which both proselytizes and allows humans to act in God’s image by creating the world through language.  Sharing the same bread = all part of the same world/system—same with sharing information.

 

Conclusion: though Sweden is one of the most agnostic/atheist nations in the world, Kopimism has attracted 1000s of active members (also chapters in dozens of countries). Religious rituals provide a benefit to people. Set of moral and ethical precepts and practices to navigage complex questions of power and identity in postindustrial society.

 

Questions: practical/operational Qs—how much does Kopimi symbol function as a license, like CC? How much is required for official recognition as religion?  Adolescent fantasy of Liberland, libertarian country at border of Croatia: declared itself a nation, but still dependent on roads, electricity, internet from neighboring countries.  Can we draw links to other libertarian politics, w/contradictory relationshps to state power/infrastructure?  Why chose religion rather than movement or political party as self-description? What are the costs and benefits of communicating politically in this way?

 

Sinnreich: relations to CC: not much.  CC is innovative, but this is not that.  Kopimism took advantage of new opening for new religions—first three times they applied they were rejected. Needed to demonstrate large base of members, religious texts, religious rituals: they backfilled/there were no texts or rituals until the state asked. Which perhaps supports the detournement/prank characterization. And maybe it did start that way. They acknowledge the inherent absurdity, but indicated deepening moral investment in belief system that seemed to surprise them more than anybody else.

 

Relation to libertarian politics/state power and infrastructure: great subject.  Unlike Sealand or Liberland, it doesn’t require infrastructure from elsewhere. You might say if Hollywood goes out of business they won’t have those films to share, but there’s no inherent contradiction in desire to stake out independence from copyright/postindustrial capitalism. The religion doesn’t require the existence of those laws and economies to function. That’s why it’s ultimately not a hoax or tactic.

 

That’s also why it’s a religion and not a political movement. Born of moral impulse that exists in social theory and legal argument: crossover w/Marxism, esp. libertarian Marxism: something inherently rotten/dehumanizing in postindustrial capitalism.  Datalove: a fundamental concept for Kopimists—through sharing information, you achieve empathy/Martin Buber-esque I-Thou relation that has been severed through industrial models of dissemination/alienation. Without living in a bunker, how do you reconnect w/other human beings when you’re structurally excluded from knowing one another? Datalove through active information sharing is an answer. Kopimism was an ethic before the religion existed; Kopimism’s ethics will persist after the religion fades—search for dignity in the networked society.

 

Q: what is the difference b/t ethical system and religion?  Is calling it a religion just another way to mediate culture through law?  Just using law in a different way.

 

A: I’m not under the misapprehension that I’m qualified to decide what counts as a religious order.  I’ve done a lot of survey work internationally using qualitative responses to examine ethical frameworks people employ to decide whether a reuse of information is valid or not. We’ve identified 12 different ethical frameworks: making money; homage or bastardization; etc.  By cross tabulating those frameworks w/more empirical demographic information, we’ve discovered that nationality, race, age, gender, income levels predict different ways of thinking, drawing on predigital ethics imported into digital world. I think about very immediate frameworks about judging permissible behavior.  Those are the kinds of questions ethics are good at addressing. As I understand it, what distinguishes a moral/religious system from an ethical one is the broader framework that serves as a model for how the universe is organized and what our place in it is and should be; ethics emerge from that larger model. And I see that larger model in Kopimism.

 

The modern individual is a social conceit whose time has basically expired. If all of our moral systems are rooted in the conception of the modern individual, and our legal and economic systems are rooted in a conception of a transactive relationship based on industrial capitalism, then as those foundational precepts evaporate they have to be replaced by something new. What is that? Kopimism is interesting b/c it’s not merely ethical but has an integrated comprehensive view of the world that supersedes the centuries now ending and offers opportunity to give us continuity w/human history even as we let go of deeply held conceits underlying this era.

 

Q: are they seeking protection from the state apparatus?

 

A: no.  There is zero chance anyone will get shielded from © through a religious exemption. This isn’t Rastafarians asking to be able to smoke pot.  More a statement of purpose. The act of registering Kopimism was more a call to arms than tactical solution to a legal problem.

 

Q: Europe has tradition of state-funded religious communities.  Creating a new one is kind of a sport.  Check the relationship between the state’s metaphysics and your own community.  Maybe they’ll get funding one day, or at least infrastructure. 

 

A: Pastafarianism is done to make the point that religion is bull, and the state has no business sanctioning religion as an institution or religious exceptions as a category. I think that’s a great political exercise. That’s not solely what Kopimism is. Kopimism could have done that much more efficiently if that were its goal. Its moral resonances wouldn’t be the same—not an integral quality from text to text. There is surely an intentional element of situationism/critique of state’s role in Kopimism but it evolved into something more than that, in part b/c of need to codify moral impulse of repulsion at dehumanizing effects of postindustrial capitalism applied to information exchange.  © maximalism’s approach to communication and info sharing provokes a revulsion that finds a voice in Kopimism that doesn’t appear in Jedi-ism or Pastafarianism.

 

One blogger on Patheos blog had a very negative reaction to Kopism—consulted religious experts, including a Patheos blogger/convert to Catholicism.  He felt very differently than the other Patheos writer.  Was very interested in resonance b/t logos theology and Kopimism.  Diversity of viewpoint is justified. 

 

Madison: paper is framed as challenge to this set of practices. IP law is default/norm and this is the exception in need of exploration/explanation. You might reverse that set of questions: why isn’t this the norm as an ethical system?  IP as faith-based social practices—Mark Lemley’s recent paper.

 

A: that is the Kopimist approach to ©. I didn’t frame the article that way b/c of my audience, which will be of skeptics who at least reflexively support ©. But that’s exactly the point they want to make.

 

The people I talked to who were ordinary adherents thought about an ethics of sharing—revenge porn, nuclear launch codes—they weren’t absolutists. Sharing was about the social effects of regimes of sharing. Seeking equalization in power relations through disrupting traditional regimes of information sharing. Wikileaks, Hollywood = good sharing through evening power relations. Sharing nude photos would be bad sharing—takes more power away from powerless.

 

Q: this paper could be a chapter in a theology of Kopimism/a sacred text.  Kopimism’s founder said he started it b/c he thought it would lead to some interesting conversations—a lot of contingency in founding. A small and diverse group.  Premature to reify the phenomenon.  Ability to get attention through grand gesture matters in © activism. 

 

A: By calling something a religion, you make it a big deal and that might just mean a big deal for attracting attention. But I thought he also considered it a big deal in terms of the human condition; restricting to legal argument would be inappropriate to the gravity of the crisis.  But that’s my read of it. I wouldn’t use the mantle of religion b/c I lack the faith required. But the philosophy resonates w/me.