An open copyright casebook, featuring AI, Warhol and more
Up-to-date, erudite, and free!
I’m coming to Defcon! On Aug 9, I’m emceeing the EFF Poker Tournament (noon at the Horseshoe Poker Room), and appearing on the Bricked and Abandoned panel (5PM, LVCC — L1 — HW1–11–01). On Aug 10, I’m giving a keynote called “Disenshittify or die! How hackers can seize the means of computation and build a new, good internet that is hardened against our asshole bosses’ insatiable horniness for enshittification” (noon, LVCC — L1 — HW1–11–01).
Few debates invite more uninformed commentary than “IP” — a loosely defined grab bag that regulates an ever-expaning sphere of our daily activities, despite the fact that almost no one, including senior executives in the entertainment industry, understands how it works.
Take reading a book. If the book arrives between two covers in the form of ink sprayed on compressed vegetable pulp, you don’t need to understand the first thing about copyright to read it. But if that book arrives as a stream of bits in an app, those bits are just the thinnest scrim of scum atop a terminally polluted ocean of legalese.
At the bottom layer: the license “agreement” for your device itself — thousands of words of nonsense that bind you not to replace its software with another vendor’s code, to use the company’s own service depots, etc etc. This garbage novella of legalese implicates trademark law, copyright, patent, and “paracopyrights” like the anticircumvention rule defined by Section 1201 of the DMCA:
Then there’s the store that sold you the ebook: it has its own soporific, cod-legalese nonsense that you must parse; this can be longer than the book itself, and it has been exquisitely designed by the world’s best-paid, best-trained lawyer to liquefy the brains of anyone who attempts to read it. Nothing will save you once your brains start leaking out of the corners of your eyes, your nostrils and your ears — not even converting the text to a brilliant graphic novel:
Even having Bob Dylan sing these terms will not help you grasp them:
https://pluralistic.net/2020/10/25/musical-chairs/#subterranean-termsick-blues
The copyright nonsense that accompanies an ebook transcends mere Newtonian physics — it exists in a state of quantum superposition. For you, the buyer, the copyright nonsense appears as a license, which allows the seller to add terms and conditions that would be invalidated if the transaction were a conventional sale. But for the author who wrote that book, the copyright nonsense insists that what has taken place is a sale (which pays a 25% royalty) and not a license (a 50% revenue-share). Truly, only a being capable of surviving after being smeared across the multiverse can hope to embody these two states of being simultaneously:
https://pluralistic.net/2022/06/21/early-adopters/#heads-i-win
But the challenge isn’t over yet. Once you have grasped the permissions and restrictions placed upon you by your device and the app that sold you the ebook, you still must brave the publisher’s license terms for the ebook — the final boss that you must overcome with your last hit point and after you’ve burned all your magical items.
This is by no means unique to reading a book. This bites us on the job, too, at every level. The McDonald’s employee who uses a third-party tool to diagnose the problems with the McFlurry machine is using a gadget whose mere existence constitutes a jailable felony:
https://pluralistic.net/2021/04/20/euthanize-rentier-enablers/#cold-war
Meanwhile, every single biotech researcher is secretly violating the patents that cover the entire suite of basic biotech procedures and techniques. Biotechnicians have a folk-belief in “patent fair use,” a thing that doesn’t exist, because they can’t imagine that patent law would be so obnoxious as to make basic science into a legal minefield.
IP is a perfect storm: it touches everything we do, and no one understands it.
Or rather, almost no one understands it. A small coterie of lawyers have a perfectly fine grasp of IP law, but most of those lawyers are (very well!) paid to figure out how to use IP law to screw you over. But not every skilled IP lawyer is the enemy: a handful of brave freedom fighters, mostly working for nonprofits and universities, constitute a resistance against the creep of IP into every corner of our lives.
Two of my favorite IP freedom fighters are Jennifer Jenkins and James Boyle, who run the Duke Center for the Public Domain. They are a dynamic duo, world leading demystifiers of copyright and other esoterica. They are the creators of a pair of stunningly good, belly-achingly funny, and extremely informative graphic novels on the subject, starting with the 2008 Bound By Law, about fair use and film-making:
https://www.dukeupress.edu/Bound-by-Law/
And then the followup, THEFT! A History of Music:
https://web.law.duke.edu/musiccomic/
Both of which are open access — that is to say, free to download and share (you can also get handsome bound print editions made of real ink sprayed on real vegetable pulp!).
Beyond these books, Jenkins and Boyle publish the annual public domain roundups, cataloging the materials entering the public domain each January 1 (during the long interregnum when nothing entered the public domain, thanks to the Sonny Bono Copyright Extension Act, they published annual roundups of all the material that should be entering the public domain):
https://pluralistic.net/2023/12/20/em-oh-you-ess-ee/#sexytimes
This year saw Mickey Mouse entering the public domain, and Jenkins used that happy occasion as a springboard for a masterclass in copyright and trademark:
https://pluralistic.net/2023/12/15/mouse-liberation-front/#free-mickey
But for all that Jenkins and Boyle are law explainers, they are also law professors and as such, they are deeply engaged with minting of new lawyers. This is a hard job: it takes a lot of work to become a lawyer.
It also takes a lot of money to become a lawyer. Not only do law-schools charge nosebleed tuition, but the standard texts set by law-schools are eye-wateringly expensive. Boyle and Jenkins have no say over tuitions, but they have made a serious dent in the cost of those textbooks. A decade ago, the pair launched the first open IP law casebook: a free, superior alternative to the $160 standard text used to train every IP lawyer:
https://web.archive.org/web/20140923104648/https://web.law.duke.edu/cspd/openip/
But IP law is a moving target: it is devouring the world. Accordingly, the pair have produced new editions every couple of years, guaranteeing that their free IP law casebook isn’t just the best text on the subject, it’s also the most up-to-date. This week, they published the sixth edition:
https://web.law.duke.edu/cspd/openip/
The sixth edition of Intellectual Property: Law & the Information Society — Cases & Materials; An Open Casebook adds sections on the current legal controversies about AI, and analyzes blockbuster (and batshit) recent Supreme Court rulings like Vidal v Elster, Warhol v Goldsmith, and Jack Daniels v VIP Products. I’m also delighted that they chose to incorporate some of my essays on enshittification (did you know that my Pluralistic.net newsletter is licensed CC Attribution, meaning that you can reprint and even sell it without asking me?).
(On the subject of Creative Commons: Boyle helped found Creative Commons!)
Ten years ago, the Boyle/Jenkins open casebook kicked off a revolution in legal education, inspiring many legals scholars to create their own open legal resources. Today, many of the best legal texts are free (as in speech) and free (as in beer). Whether you want to learn about trademark, copyright, patents, information law or more, there’s an open casebook for you:
https://pluralistic.net/2021/08/14/angels-and-demons/#owning-culture
The open access textbook movement is a stark contrast with the world of traditional textbooks, where a cartel of academic publishers are subjecting students to the scammiest gambits imaginable, like “inclusive access,” which has raised the price of textbooks by 1,000%:
https://pluralistic.net/2021/10/07/markets-in-everything/#textbook-abuses
Meanwhile, Jenkins and Boyle keep working on this essential reference. The next time you’re tempted to make a definitive statement about what IP permits — or prohibits — do yourself (and the world) a favor, and look it up. It won’t cost you a cent, and I promise you you’ll learn something.
If you’d like an essay-formatted version of this post to read or share, here’s a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:
Image:
Jenkins and Boyle
https://web.law.duke.edu/musiccomic/
CC BY-NC-SA 4.0
https://creativecommons.org/licenses/by-nc-sa/4.0/
