Category Archives: Copyright

Pam Samuelson at the John Perry Barlow Symposium

(Left to Right) Mitch Kapor, Pam Samuelson, Trevor Timm, Cindy Cohn

This is from April 7, 2018. Complete transcription and video available here at the Internet Archive. (A complete index of all speakers is forming here on the Aaron Swartz Day website.)

Cindy Cohn: [01:16:30] Our next speaker is EFF current board member Pam Samuelson. Pam is the Richard M. Sherman Distinguished Professor of Law at the Berkeley Law School and co-director of the Berkeley Center for Law and Technology. She’s been a member of the Board of Directors of EFF since 2000, and is proud to have succeeded John Perry Barlow as the Vice Chair of that Board. Although Barlow did make us give him another role which was the Rockin Vice Chair. I think it’s the Rocking Chair. Yeah, sorry about that.

She is also co-founder and chair of the Board of the Authors Alliance, a Non-profit Organization that represents the interests of authors like Barlow who want their work to be more widely available and who want to take advantage of opportunities to share their work in digital networked environments. Her most Barlowesque writing was “The Copyright Grab,” published by Wired, in January 1996. Now I’m going to try to riff Cory a little bit. Cory wanted to point out that the Internet has these natural pairings between kind of what Cory called “loony-ass visionary types” and serious, incredibly well-informed, sober, razor sharp adult supervision. (Often, women.) [01:18:12]

And I certainly inherited your role (looking over at Mitch Kapor) as the hyperbolectomy person for John Perry and as Cory points out those pairings are frequently devastating to our audience. You line them up Barlow and we’ll knock them down with the logic. I think the original one of these pairings was Pam Samuelson and John Perry Barlow on the question of copyright and the Internet. Pam?

Pam Samuelson: So, as requested. I will start with a quote that I really like from John Perry Barlow. “Think of the net as an ecosystem. It is a great rain forest of lifeforms. Ideas, which like organisms, these patterns of cells for reproducing, evolving, adaptive information that express themselves, and schemes of carbon, require other organized organisms to exist. Imagine the challenge of trying to write a song if you’ve never heard one. As in biology. what has lived before becomes the compost for what will live next. Moreover, when you borrow or for that matter, “steal” an idea that first took form in my head, it remains where it grew, and you, in no way, lessen its value by sharing it. On the contrary, my idea becomes more valuable, since in the informational space between your interpretation of it and mine, new species can grow. The more such spaces exists, the more fertile is the larger ecology of mind. [01:19:47]

So, Barlow’s major contribution in the field of copyright. And, he really did.Was “The Economy of Ideas” article that was published in 1994 in Wired magazine. And honestly, it’s been cited 742 times in the law review literature. Which, I’m telling you; there are people in my field who would just die to get that many citations, ok? So, Barlow made an impact on my field, but the wider impact of that article was really to galvanize a lot of people in the community who kind of came to understand that copyright – this obscure thing that we didn’t really like to think about – actually had some impact on our lives especially on the Internet. [01:20:40]

So, I wanted to spend most of my time talking about a conference that I was at, in Amsterdam, in the summer of 1996. And one of the keynotes of that conference was John Perry Barlow and consistent with “The Economy of Ideas” article, he started talking about the vision of the digital future as digital information was vaporous cargo, which exists either as a pure thought or something like thought, voltage conditions, darting around the net at the speed of light. Copyright might have made sense to thrive in the analog world, because Gutenberg notwithstanding, it was still hard to make a book. But copyright in the digital era, he thought, just didn’t work at all. [01:21:35]

And he spoke of efforts to keep the sinking ship of copyright afloat as taking three forms:

(1) A frenzy of deckchair rearrangement.

(2) Stern warnings to the passengers that if she goes down they will face harsh criminal penalties.


(3) Serene glassy eyed denial.

The other keynote speaker at this particular conference was Bruce Lehman, who was, at the time, the Head of the Patent and Trademark Office, and the Chief Intellectual Property Officer for the Clinton Administration. And he had just published this white paper on intellectual property and on the Internet, in which every temporary as well as permanent copy of any copyrighted work anywhere had to have permission in order for those digital copies to be made. An ISP should be strictly liable for every infringement of users, they would have a responsibility to monitor everything in everybody’s files, in order to make sure that there was no infringement, and everything was going to be a locked up. There was not going to be any fair use anymore. We don’t need fair use, because everything can be licensed. And this kind of heavily proprietary really really locked down everything approach was scary because this guy was the head of the government in charge of this particular policy. OK? [01:23:02]

So what we needed was a poet to galvanize and to make us all really understand and appreciate what was an alternate future to that which Bruce Lehman was setting out for laymen. Barlow was a dangerous charismatic anti-Christ. And for Barlow, Lehman was the captain of the ship that was sinking, of copyright, and so having these two people go at it was really one of the things to really remember.

Now it’s important actually that John Perry Barlow’s essay about this new economy, and the speeches that he gave, really did galvanize a lot of organizations and a lot of people, to become copyright activists. And I think that was a really important thing. Part of why was so different was that civil liberties organizations typically have thought “Oh copyright doesn’t matter, it’s a business law subject. It doesn’t have anything to do with us. And Barlow really got that copyright had a civil liberty dimension that we all really needed to appreciate, and we needed to make our voices about what copyright should do available to the world. [01:24:24]

So a favorite passage that I have from him about that is:

“When the primary articles of commerce and society look so much like speech as to be indistinguishable from it. And when the traditional methods of protecting ownership have become ineffectual attending to the problem with broader and more vigorous enforcement will inevitably threaten Freedom of Speech. The greatest constraint on your future liberties may come not from the government, but from the corporate legal departments laboring to protect, by force, what can no longer be protected by practical efficiency or by social consent.”

I think these kinds of words really inspired those of us connected with EFF, to really go out there and defend fair use. To defend our Freedom of Expression. To push for policies that were much less awful than the policies of Bruce Lehman was going for and if you think that copyright isn’t in too bad shape today, it’s partly because that galvanizing, which Barlow was part and parcel of, really worked. [01:25:32]

And the positive values of sharing have inspired so many other organizations, and I think it’s important to say: Many of you out there use Creative Commons licences, you enjoy the sharing of content, and John Perry was there at the launch of Creative Commons and it is now global and millions and millions of people use it, and it’s part of his legacy too.

So thank you and let’s celebrate his life.

Interview with “Idealist” Author Justin Peters: New Book About Aaron Swartz and His Greater Role In Copyright History

idealistIn the days immediately following Aaron’s death, Justin Peters was one of the many reporters that contacted me in the hopes of figuring out what happened.

I wasn’t much help at all figuring that out, because, at the time, I had no idea about the situation, except what I had read in the press.

What I could tell them about was Aaron in his youth, what it was like working with him when we were starting Creative Commons, a bit of the ideology behind it, and some of the movements that followed.

Most of the reporters weren’t as interested in Aaron’s history as much as the tragedy at hand. Justin Peters, who was writing an article for Slate magazine, was different. He seemed to care not only about what had happened, but also, what events could have possibly led up to that outcome, on a historical scale, in the context of everything else going on during the time.

Justin Peters, Author of “The Idealist”

He was obviously trying to understand a lot more than the basic facts of what had taken place. He was asking real questions, trying to get to the bottom of the mess, but also asking the larger, looming questions, like: how could something like this happen in our democratic “free” society? How do things exist in our country like having to pay by the page to access the law (as is the case with PACER) or having to pay $50 an article to access anything more than the abstract of a scientific journal (unless you had already bought your way into a prestigious university)?

We talked about a lot of subjects that might have seemed tangential to many. Aaron was involved in a lot of different important projects, all at once. Justin seemed to be trying to understand how it all fit together. I spoke to Justin for a long time on two separate occasions. The second time we spoke, he admitted that he wanted more information for something “that might go beyond this story for Slate.”

The Slate article came out and was quite comprehensive. A few months later, I heard that Justin had gone on leave from his job to write an entire book on Aaron Swartz.

That book just came out January 12th. It’s called The Idealist.

I caught up with Justin to ask him about what kinds of things he learned in the process of writing the book.

Lisa: How was it that you came to realize that you really felt the like to wanted to create a book on this topic?

Justin: Even though the Slate article turned out to be 15,000 words long, I felt that I was barely scratching the surface of the story of Aaron’s life and the circumstances of his death. In order to tell the full story, I would have to explain just how we got to the point where academic research papers were considered private property, and downloading those papers without explicit permission could be deemed a federal crime. And I eventually realized that the only way to adequately answer these questions – which seemed so central to understanding Aaron’s story – would be to write a full-length book. Once I came to that conclusion, there was no turning back.

Lisa: Did anything specific make you say to yourself – I want to keep going with this. (When you were researching.)

Justin: In August of 2014, I went to Champaign, Illinois to look at the personal papers of Michael Stern Hart, the founder of Project Gutenberg. At that time, the book was not going well: the chapters weren’t coming together, I was struggling to connect the history sections with the Aaron Swartz sections, I was close to blowing my first deadline, and I felt stymied by my own authorial limitations and basically wanted to just give up on the project. And then Hart’s personal papers turned out to be really, really fascinating and rich in detail. The two days I spent in the archives there, researching the genesis of Project Gutenberg and the life of its creator, really gave me a second wind—and gave me an obvious bridge between the history chapters and the modern-day chapters. I walked out of the archives saying “I know how to do this now! I have to tell this story!”

Lisa: Let’s talk about that. It sounds like you had one vision of the book going, that wasn’t working out, and you became inspired after looking through the personal papers of Michael Stern Hart.  How did you even end up looking at his papers? How does Project Gutenberg tie in with Aaron’s greater story?

Justin: Yeah, that’s basically right. I had always known about Project Gutenberg, but I didn’t realize that it had been around in one form or another since 1971. When I learned that, I started thinking “Wow, that’s super early! I bet there’s a good story there.” I love archives and primary sources—there’s no better way to learn about a person than to examine his or her own writings—so when I learned that Hart’s papers had been preserved at the University of Illinois, I booked a ticket to Champaign almost immediately. And as soon as I started examining his papers, I found that Hart sort of reminded me of Aaron, in terms of his idealism, his precocity, and his interest in free culture. Project Gutenberg was perhaps the first digital attempt to digitize public domain material and bring it to the masses for free. I see Hart as a kindred spirit to Aaron, and the story of Project Gutenberg as very much a predecessor to Aaron’s own work with the public domain.

Lisa: Do you see what happened to Aaron as sort of the latest chapter in an ongoing struggle between Copyright and the Public Good?

Justin: That’s absolutely right. This struggle has been going on for literally centuries. Over the last several decades, the people who have advocated for longer copyright terms have been winning. They’ve been very successful in not only lobbying for laws that support their position, but in making the argument that longer copyright terms serve the public good; that functionally eternal copyright benefits the public by ensuring that authors will see more profit from the sale of their works, and thus hopefully write more works. Every time a new communications technology becomes popular, this struggle renews itself, with increasing ferocity. Aaron was, in part, a casualty of this struggle.

Lisa: My takeaway from the early chapters in the book was that The Statue of Anne’s existence was never actually to “protect authors,” but rather, was aimed at securing publisher’s profits, from the beginning. Is that correct?

Justin: The British publishers and printers who lobbied for the Statute of Anne in the early 18th century wanted to protect their own interests first and foremost. They knew that a copyright law would help stabilize their own businesses and their own profits, and help stifle competition in the industry. And they realized that the best way to obtain that law was to convince Parliament that the law was primarily meant for the benefit of authors and readers. The printers were being disingenuous, and they knew it.

That said, the Statute of Anne did end up helping authors. That’s important to acknowledge. By decreeing that copyright belonged to the author, as opposed to the publisher or printer, Parliament gave British authors a measure of control over their own works, and framed copyright as a production incentive instead of just a censorship tool. Authors in England had absolutely zero legal standing prior to The Statute of Anne. The Stationers’ charter didn’t mention authors at all; it was all about giving printers absolute and perpetual control over the works they published. By saying — however disingenuously — that authors themselves held the right to copy their own works, the Statute of Anne at least advanced the notion that the author was an integral part of the publication process, and I think it’s fair to interpret this as a step up for authors from where they were before.

Lisa: One last thing: Am I to understand that Noah Webster of all people is mostly to blame for convincing our country’s early politicians to adopt  systems much like England’s copyright infrastructure, state by state, after The Articles of Confederation were established?

Justin: If anyone deserves the title of “The Father of Copyright in America,” it’s probably Webster, who, as a young man in the 1780s, went around lobbying the various state legislatures on behalf of authorial copyright. Before he compiled his famed Dictionary, Webster was a tremendously ambitious young striver who had written a spelling textbook that he hoped would become nationally popular, and in the process, make him rich and famous. So he spent years making the case for copyright—and for himself—to legislators and civic leaders across the new nation; when Congress passed the first federal copyright act in 1790—the law was based on the Statute of Anne—Webster took credit for having brought the matter to the nation’s attention.

Lisa: You just wrapped up your book tour, but you mentioned you were open to doing more book signings or events in the future?

Justin: Yes. Please contact me on Twitter @justinrevett or email me at: justintrevett at fastmail dot fm, if you’d like to try to bring me to an event in your town. Thanks.