Regretfully, censorship has reared its ugly head on the Republican side and I feel compelled to speak up against it.
Lynne Cheney, wife of Vice President Dick Cheney, has pressured a publisher not to issue a reprint of a novel she wrote in 1981 entitled Sisters, a "historical romance" that includes "brothels, attempted rapes and a lesbian love affair."
It is clear in reading the AP account of this story that both the decision to reissue the novel and the pressure to cancel it stemmed from political considerations in an election year.
Please don't misunderstand me. I certainly prefer the Bush-Cheney ticket to any other viable alternatives.
Do I then wish to see the Cheney's embarrassed? No.
Especially over a so-called controversy that in may ways would create a "manufactured" outrage.
But at the same time, do I want to read a novel by Lynne Cheney featuring hot lezbo action?
Hell, yes!!!
Check out this one steamy passage that managed to find its way into the news wires -
"Let us go away together, away from the anger and imperatives of men. There will be only the two of us, and we shall linger through long afternoons of sweet retirement. In the evenings I shall read to you while you work your cross-stitch in the firelight. And then we shall go to bed, our bed, my dearest girl."
Ummm...ok. Maybe it's not that hot and steamy after all (unless cross-stitching does it for you).
But all kidding aside folks, this is a perfect example of how copyright laws operate as pernicious forms of censorship in this country.
Now I know that people correctly point out that "censorship" entails government action. But that is exactly what this is. Copyright enforcement is not a "natural" right. It is a wholly created government statutory scheme that prevents the dissemination of information - even though this government action is triggered at the behest of a private individual.
If you have a person blocking the distribution of a work among third parties specifically for political reasons, and the force of the federal government backs up that effort, then in my view it clearly qualifies as "censorship" under the classic definition. This is especially true when the individual in question has strong ties to the government.
Anyone who believes campaign finance reform is a genuine form of censorship would certainly then have to concede that the use of copyright laws in this instance would also qualify under that heading.
Once again government created copyright laws are being used specifically to withdraw an existing work from the public in the hopes that it will not affect political discourse in this country. If that isn't censorship, then I don't know what is....
In 2001, Cheney told a New York Times reporter that she couldn't even remember the plot of the novel.
Yeah....right.
And please spare me the recounting of the news wires that reported that no pressure was put on the publisher over this.
The publisher claims no legal action was threatened. But after initially deciding to republish the novel, they suddenly backtrack after a call from Cheney's attorney, and now declare that there was no desire "to put out a book that the author was not happy with."
Even if you choose to take that at face value, my argument still stands regardless of the motivations for the publisher choosing not to reissue more copies of the book.
Naturally, Lynne Cheney is not the only one allowed to engage in such tactics.
Just as I would be interested in reading Sisters, I would also love to get my hands on the radical anti-war manifesto The New Soldier that was partially written by John Kerry. That would certainly be even more relevant to this year's political debate than Lynne Cheney's book. You probably won't be able to find it though, since it too it out of print.
Once again, Kerry (or at least his supporters) are censoring this material by making the existing copies deliberately hard to find.
As the above linked press release states,
"The description in one of the Ebay listings reads, 'Due to the controversial nature of the book, most copies were pulled off the shelves when Kerry decided to run for office making this book a rare find.' "
I ask you again - is this not censorship?
Do I then advocate the forced publication of material whenever there is a demand for it? Of course not. That would be a form of indentured servitude on the part of the publisher who would have to bear the labor and costs involved.
What I am advocating for instead is a new understanding of "fair use" laws.
The principle would be simple - the scope of "fair use" rights to a copyrighted work should expand in a direct, inverse proportion to the underlying work's availability. If a work is no longer published, then the existing copies should be able to be freely copied for as long as it remains unpublished (in essence allowing to be in a "quasi-public domain" that could be rescinded once the work is widely republished).
This would provide proper economic incentives for publishers to keep works in constant circulation. If it would still be too expensive for the publisher to keep manufacturing works, then it would simply show that the copyright has lost its economic value to begin with, thus proving that the work should then be in the public domain.
This would fulfill the true purpose of copyright laws - to ensure the widespread creation and dissemination of works. Instead, copyright has evolved to become merely a coercive economic tool of private individuals (and more often corporations) who can then choose to make works disappear from society whenever embarrassing information outweighs economic considerations.
This would also prevent unfair business practices such as Disney taking video titles off the market for years at a time in order to artificially increase prices and demand for their products.
Once a work is published, it should remain published. If a copyright owner can no longer afford to publish, then people should be allowed to freely copy and distribute the existing copies of the work.
In essence, this idea would allow the most efficient marketplace distribution system to operate. If a distributor will not, or cannot continue to distribute creative works, then the marketplace should allow third party competition to step in and do the job for them.
It is the consumer demands that should be paramount in copyright schemes, not the desires of authors and their chosen distributors.
Obviously if you believe that copyright should be only about authors and companies making money, then you will disagree with this call to arms. If that's the case though, don't ever let me catch you reading a copy of "The New Soldier" unless you have paid the several hundreds of dollars that the book currently goes for on the street.
If however, you believe as I do - that copyright should be about creating the most efficient mechanisms to create as many works as possible and distribute them as widely as possible, then you can no doubt understand how troubling Lynne Cheney's actions are.
If Sisters and The New Solider can't be purchased for a reasonable price, then I can only hope someone illicitly posts a copy of each of these works on the Internet for people to freely download.
Then they can properly decide what relevance (if any) these works have to the political debate in this country.
Yeah, it's such a horrible act of censorship that she refuses to let a publisher sell something that she owns the rights to.
Posted by: The Angry Clam at April 9, 2004 07:07 AM (Permalink)Why do you assume that she owns the rights? Not all authors do.
In any event, I agree with Justin that a "use it or lose it" rule would make more sense than the current rule, which allows copyright to be used as a tool of censorship rather than to protect the commercial interests of authors. The only saving grace is the fair use doctrine, which allows us to publish enough of Cheney and Kerry's books to embarass them almost as much as a re-release of the older works would.
Posted by: Xrlq at April 9, 2004 11:31 AM (Permalink)Milwaukee Public Library has several copies of The New Soldier available, but I'm afraid the collection does not include Sisters unless it was published under a pseudonym.
Angry Clam posts a reponse that purports to address the issue when in fact it manages to avoid it behind a sarcastic comment based in questionable fact which doesn't really contribute to the debate or any of its ideas.
It is seemingly typical of him to be a contrarian when commenting on my posts.
I don't know what I have done to inspire such reaction. Perhpas it is simply a loss of pride for having schooled him in issues concerning libel and the First Amendment? http://www.calblog.com/archives/003471.html
In any event, I will still assume that the disagreement here is genuine, so let me put the questions to Clam directly:
Do you believe that those who origianlly bought "Sisters" should have the right to make copies and pass them along to others who might wish to debate broader social issues that might crop up during a Presidential campaign?
Do you believe that Cheney should be able to control what is done with copies that third parties have already bought? If I had a copy that I paid for, should she still be able to dictate what is done with it?
I take it that you also believe John Kerry should be able to stop publications he wrote that might embarass him about his anti-war activism?
Do you feel that Kerry's desires in this regard should trump the public's desire to know about him as a Presidential candidate?
Would you feel the same way towards papaers on other public policy matters written by candidates that directly contradict the positions they take once they get into elected office?
Apparently Clam feels that intellectual property is akin to real property and that individuals should be able to wipe away entire works and force them down a rabbit-hole if they later prove to be embarassing. (Even assuming the Cheney owns the rights in the first place, which is likely not the case as XLRQ points out in his comment.)
It's a difference of philosophy to be sure. And Clam is free to disagree with me on this, just like he apparently disagrees with me on many issues.
But let's not avoid the real and practical consequences of such a philosophy - creative works being lost forever, public figures being able to hide information about their past which could potentially be important, and a further stifling of public debate.
Posted by: Justin Levine at April 9, 2004 06:45 PM (Permalink)I just clicked on the link that XLRQ provides in his comment above, and I encourage everyone else to do the same.
It provides a fascinating example of this debate.
There has often been a debate over allowing "The Anarchist's Cookbook" to be published in a free society.
I completely understand the impulse of the side that would like to ban that publication - but I would still maintain that the debate over the "Cookbook" should be confined to the classic issue of protected speech vs. the proactive encouragement of violent action.
That is an issue with legitimate gray areas - no doubt.
But I am steadfast in maintaining that nobody should ever use copyright laws to suppress the "Cookbook". They should instead be upfront about matters and say that they feel the book would contribute to violence by radical groups such as potential terrorist cels in this country.
That way the debate would be properly maintained on the core First Amendment vs. public safety issues involved - and not be deliberately hidden or obscured under a side issue of economic distribution arguments that copyright was allegedly designed to further.
Posted by: Justin Levine at April 9, 2004 06:59 PM (Permalink)The assumption was based on her ability to actually block publication. Usually you can only get away with that if you have some sort of control over the rights to the material.
And generally, I comment sarcastically to your posts because they're dedicated to undermining intellectual property rights as expressed in copyright law.
Now, to address your points in order.
I believe that if some other entity did in fact buy the rights to "Sisters" then they may exercise those rights to distribute the book again. However, I would point out that if that is truly the case, Lynn could not have blocked republication except through persuasion. Also, owning a copy is not the same as owning "rights."
I believe that Cheney should not be able to control what is done with your specific copy. However, it is entirely within her rights to prevent you from copying or distributing anything other than your original physical copy of her work, as she has not assigned the right to do than that to you.
If John Kerry still maintains the rights (perhaps he owns the rights to a book, for example), he may indeed stop publication of that book. However, people often do not own the rights to recorded interviews, etc. that they have given, which is the more likely source for such embarassment.
Yes, if they own the copyrights to them. You don't lose your property simply by being a public official.
Intellectual property rights are of equal importance as real property rights, yes.
Finally, many of your arguments against intellectual property are analogous to arguments against real property. Tell me, if we should be able to disseminate works that public figures own the rights to without their permission, why couldn't we also root around in their house? I mean, maybe John Kerry has a big stash of "Stud Puppy" magazines in his sock drawer or George W. Bush has a "decorative" water pipe in his ranch down in Crawford. THE PUBLIC WANTS TO KNOW! We should be allowed to invade the property of these men to find out.
That is, essentially, what you are arguing for, except in the realm of copyright rather than physical property.
I want none of it.
Posted by: The Angry Clam at April 9, 2004 07:17 PM (Permalink)At least now we get to the root of the debate.
You believe there should be no difference between intelectual property and real property.
"Tell me, if we should be able to disseminate works that public figures own the rights to without their permission, why couldn't we also root around in their house?"
Quite simple really. There is a finite amount of real property (which gives it its true value). For all practical purposes, there is an infinite amount of "intelectual property" which can be copied and distributed without displacing other's property.
I myself am a proud proponent of real property rights.
But I would think that any defender of real property rights would understand that it is scarcity which provides the only real value to property. Perhaps this fundamental tenant has been lost on you somehow.
So to more directly address your hypothetical - if it were possible to wave a magic wand and COPY the house of a public figure without displacing him in his original house, then the tenants of freedom should allow us to do so.
But of course we can't. A physical house if finite. We can not control it without extinguishing the original owner's control of it.
That is where your analogy breaks down and why I completely reject your assertion that "many of [my] arguments against intellectual property are analogous to arguments against real property."
I have posed other questions chalenging your equation of intelectual vs. real property on your own site. But I now have some others for you that are inspired by your post above.
If Congress were to suddenly withdraw their latest 20 year extention of copyright terms for works already in existence, do I take it that you would consider it to be a Constitutional "taking" under the Takings Clause?
"However, people often do not own the rights to recorded interviews, etc. that they have given, which is the more likely source for such embarassment."
This begs the question Clam - Why don't people have the rights to their recorded interviews if you truly feel it is no different than real property?
It isn't solely scarcity, it's also utility that gives property value.
That's why coastal land in Malibu is worth a lot more than coastal land in, say, Algeria.
Intellectual property might indeed not be as scarce as physical property, but its value is derived from its utility, which is very real.
As for the Congressional extension of copyrights, no it is not- see Brown v. Legal Foundation of Washington, where property interests created by statute are not subject to takings limitations as a result of the limitations by statute (in that case, it was interest on trust accounts).
As for people not owning rights to those things, it is because, by giving the interview to another entity, or appearing on a television broadcast, they have relinquished their rights to statements, or their image as broadcast. It's no different conceptually than sending in a letter to the editor, where one relinquishes their rights to the letter (or, usually, grants the newspaper various reproduction rights) in exchange for publication.
Posted by: The Angry Clam at April 9, 2004 08:38 PM (Permalink)Censorship? She's the author, for goodness' sake!
Fair-minded individuals understand censorship to involve a person unfairly restricting another person's free-speech rights.
To call an author's attempt the direct the dissemination of one's own writing as "censorship" is to quite messily torture the meaning of language.
But to call it "the worst form of censorship," is to move from ludicrosity to dishonesty.
Posted by: Clark at April 9, 2004 08:42 PM (Permalink)Clam, your admittance that Congressional extensions of copyrights do not trigger a "takings" analysis only proves my point - that so-called "intellectual property" can not be equated with real property (unless you would argue that a Constitutional taking could be nullified simply by Congressional decree).
Or do you perhaps feel that any rights that we have in real property are solely created by statute that can be taken away by a mere act of Congress?
If you admit that the answer is no - then perhaps you need to ask yourself why certain forms of "property" need to be created by statute to begin with and what ends do such measures serve?
As to your argument that utility gives property value beyond scarcity - that is a mere word game, since it is scarcity that defines utility.
To use your own example - if the land by Malibu could simply be copied and pasted on to Algerian territory (or any other place in the physical universe), therby creating the same atmosphere as Malibu, then the original land in Malibu would cease to have its value (or at the very least, would have the same value as any land in Algeria). So I'm afraid that your your agrument doesn't hold up there.
Posted by: Justin Levine at April 10, 2004 02:56 PM (Permalink)Clark,
I wonder if you even bothered to read my entire post.
I made it quite clear that it is not Cheney's attempt to to stop the reissuance of her novel that is the problem itself. It is the fact that copyright law prevents thrid parties that have already purchased the book as their property from distributing the work to others in the face of the distributor's refusal to create more copies that is the problem.
Since such "rights" are created entirely by government, then it is certainly fair to designate it as censorship.
I took quite a bit of time to explain the government nexus in my post, yet rather than engage it with argument, you merely label it as "dishonest" without providing any justification.
What if the "author" in this instance wasn't the wife of the vice-president, but the vice-president himself who did the same trick with a policy paper that he wrote while at a private think tank that turned out to be embarassing for him since it contradicts his stated policies while in office.
I take it you would simply consider that to be an "author" simply engaging in his "rights" and that censorship would not be part of the equation here?
Posted by: Justin Levine at April 10, 2004 03:05 PM (Permalink)Clam,
I negelected to comment on your argument regarding taped interviews in my last post.
As for people not owning rights to those things, it is because, by giving the interview to another entity, or appearing on a television broadcast, they have relinquished their rights to statements, or their image as broadcast. It's no different conceptually than sending in a letter to the editor, where one relinquishes their rights to the letter (or, usually, grants the newspaper various reproduction rights) in exchange for publication.
This answers again begs more questions that it actually answers.
Why do you hold that such people "religuish" such rights? Certainly there is no formal agreement or contract that relinquishes such rights on the part of the interviewee. Why don't you just assume that Cheney and the publisher have reliquished their rights to the public domain when they refuse to distribute their works? In either case, it is simply a leap of faith on your part.
Here is another example for bith you and Clarke: As you may or may not know, NBC once ran an interview with Juanita Broadderick (sp?) on their show Dateline wherein she accused Presdient Clinton of raping her while he was the attorney general of Arkansas.
NBC has refused to replay that segment, and has refused all NBC affiliates or any other media outlet from re-running that segment.
Copyright laws prevent other people from distributing that show or airing it for public display. The only reason individuals were allowed to video tape that segment was beacuse of a 5-4 Supreme Court decision in 1979 (Sony v. Universal City).
I take it that you both feel that this segment should never be played again in order to judge Broadderick's veracity unless NBC agrees to it? That it should just dissappear down the balck-hole of collective memory?
And if they never agree to it - I take it that you feel that copyright laws that are passed and enforced by Congress, a governmental entity, have absolutely no relationship with the word "censorship" in this instance?
Posted by: Justin Levine at April 10, 2004 03:15 PM (Permalink)IIRC, Germany pulled a similar trick to get Mein Kampf banned, by having the State of Bavaria buy up the rights and refuse to license them to anyone.
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