Copy Catfight

Reason, March, 2000 by Jesse Walker

While it would be a good idea to repeal the cybersquatting and dilution laws, one could probably avoid even more trademark battles with more prosaic measures. Post suggests expanding the range of domain names: If eToys.com could have called itself eToys.toys, he argues, the problem might never have emerged in the first place. There is also, he adds, a case for adopting the so-called "English system," in which a lawsuit's loser pays the winner's legal costs. Such an arrangement poses some problems of its own, but it would clearly discourage frivolous, bullying suits.

For centuries, our popular myths have enshrined the "romantic" or "heroic" author, conjuring new books out of nothing but his solitary genius. This image is popular with nonwriters, because many of them do not know how writing is done, and it is popular with writers, because it flatters us. It is, however, untrue. Every book, film, and song in the world draws on an existing cultural commons. Creativity rarely, if ever, means inventing something out of nothing. It means taking the scraps and shards of culture that surround us and recombining them into something new.

When the government tells us we can't use those scraps without permission from Disney, Fox, or the Sherwood Anderson Trust, it constrains our creativity, our communications, and our art. It tells us that we cannot draw on pop songs the way we once drew on folk songs, or on TV comedy the way we once drew on vaudeville; it says we cannot pluck pieces from Star Wars the way George Lucas plucked pieces from foreign films and ancient legends. The consequences are staggering. Imagine what would have happened if, 100 years ago, it had been possible to copyright a blues riff. Jazz, rock, and country music simply could not have evolved if their constituent parts had been subject to the same restraints now borne by techno and hip hop.

Few would argue that artists shouldn't be able to make a living from their work, or that customer confusion is a good thing. But we've stood those ideas on their heads. Rather than promoting enterprise and speech, copyrights and trademarks often restrain them, turning intellectual property law into, in Jenkins' words, "protectionism for the culture industry."

Fortunately, the state simply isn't big enough to enforce every intellectual deed on the books. You can still find Alexander Thompson's Buffy transcripts on the Web, even though he's taken them down: Several fellow fans had already downloaded them and posted them to sites of their own. Copies of The Dark Redemption are still floating around--if the movie itself isn't online, people willing to sell you tapes are. Even The Cat NOT in the Hat! persists, not as a book but as a frequently forwarded e-mail. The overzealous enforcement of copyrights and trademarks may chill speech, but it won't kill it.

But the chilling is bad enough. Americans are not mere passive consumers, dully absorbing images invented in distant corporate laboratories. We hatch our own ideas and compose our own stories, drawing on pop culture without absorbing it blindly. We should look with disfavor on any law that tells us to shut up and get back on the couch.