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Writers on the Information Plantation
A Panel Presentation at the CPSR Conference "Net Worth, Net Work: Technology & Values for the Digital Age"

by Bruce Hartford

CPSR News Volume 15, Number 4: Fall 1997

"Access to knowledge is the superb, the supreme act of truly great civilizations"
-Toni Morrison, 1986

In recent years debate has exploded over the role of copyright and intellectual property in cyberspace. Unfortunately, this discussion has been almost exclusively posed as a conflict between publishers/distributors and information consumers. The voice of those who actually create intellectual property has had to struggle to be heard.

The National Writers Union addresses this issue from the following premises:

1. We do not believe that reading is a crime.
2. We do believe that writers/creators have a right to earn a living from the fruits of their labor.
3. We think that society needs independent voices.

When we look at the new information technologies, we see an information revolution as profound and far-reaching as the one triggered by Gutenberg's printing press. The printing press was not merely a more efficient hand-scribe - it totally transformed the way in which information was created, reproduced, sold, and consumed. It created information markets and formats undreamed of in the medieval quill-pen universe. The printing press brought into being new economic institutions and relationships and altered old ones beyond recognition. We're now experiencing a similar revolution, but instead of time being measured in centuries, it is happening in a decade or less.

Revolution by and for the Rich and Powerful
Normally, we tend to associate the word revolution with the have-nots rising up against their oppressors to demand greater freedom and a more equitable sharing of wealth and resources. But what we are seeing in today's information revolution is an economic coup d'etat in which the media and information cartels are ruthlessly moving to corner and control an essential element of world economic and intellectual life.

In a report to their stockholders a few years ago, TimeWarner predicted that by the year 2000, the vast majority of all information would be disseminated by seven international media conglomerates, and asserted that they intended to be one of those seven. Today they are well on their way to achieving that goal.

But this is nothing new. The robber barons of the railroad age tried to do the same thing with transportation, and for a time they succeeded. They used their power to ruthlessly destroy farmers and workers and small businesses until, in self defense, the people formed granges and unions and business associations to curb that monopoly power. In the immortal words of Yogi Berra, this is "Deja vu all over again."

And just as government around the turn of the century aided and abetted the railroad barons, today it plays the same role for the information barons. The Clinton administration's White Paper on Intellectual Property and the National Information Infrastructure, for example, ranks right up there with the unilateral transfer of indian lands to the Union Pacific railroad as an example of Washington's rush to serve the needs of the least needy. Or, as they say inside the beltway, "Might makes right, and campaign contributions win elections."

A burglar sneaks into your home, and a pickpocket robs you by stealth. The media barons and their government assistants work the same way. If they can pass the legislation they want, they do so. But if they can't, they accomplish the same ends through international treaties like WIPO and GATT. Or through bureaucratic revisions of the Uniform Commercial Code.

Information Should Be Free
On the other side of the debat, are those who reject the entire concept of intellectual property and advocate that "information should be free," meaning that there should be no commerce in information and that all forms of knowledge should be distributed and shared without cost or payment.

The problem with that ideal is that information does not spontaneously come into existence. Information, intellectual property, is the product of human labor, and the people who create it, writers, artists, musicians, etcetera, have a moral and economic right to be fairly paid for their labor.

The fact is that intellectual property is, in a sense, a commodity. And like the farmer who produces food, those of us who do the work to produce information and knowledge have a right to make a decent living from our craft. And if we can't make a living, we can't continue to do the work.

To Have and Have Not
But we also have to recognize that in some respects information is fundamentally different from all other commodities.

If I buy a burrito and I use it, it's gone. But information can be used without being used up. If I buy a radio and I give it to you, then I don't have it anymore. But with these new technologies, I can acquire intellectual property and share it with you and keep it at the same time.

Information is as much a necessity of intellectual and economic life as food is of biologic life. Not only is it morally wrong to deny people the necessities of life, it's impractical. When people can't afford to buy food, they steal it. And if they have to cut off Marie Antoinette's head to put bread on the table for their kids, they will do it.

Furthermore, despite our culture's deification of the individual entrepreneur, the truth is that human advancement is a collective process. It is in the long-term interest of society as a whole to provide educational opportunities to all, rich and poor. Today we benefit from the investments our ancestors made in the education of our parents and grandparents. Today, and even more certainly tomorrow, access to the world's electronic infosphere will be as essential to education as are schools and libraries.

And as citizens we know that without full access by all to multiple sources of news and information, democracy itself is a myth.

Thus, the National Writers Union is committed to the fight for full access to the new information universe for everyone, regardless of income. As writers we do not support the position of the Microsofts and the Time-Warners who view all forms of copying for any purpose as criminal violations of copyright.

Reading is not a crime.
As writers, we do not oppose individuals sharing the information that we created for their personal, private use. End users have long been able to lend books to friends, photocopy cartoons and articles to pass around the water cooler, and quote (and misquote) things we have written and they have read. The fact that the new technologies make it easier to share information does not make such sharing wrong.

What we do oppose is anyone making money from our work without obtaining our permission and without passing along to us a share of the income. Thus, for creators, the crucial dividing line between permissible private use and copyright violation is the division between commerce and personal use.

For example, I do not care if you like my poem and post it on your web site. But if you start selling my work, or selling advertising on a site where my work is displayed, or using my work to promote your site, then you are engaged in a commercial use of my work, and you must obtain my consent and grant me some share of the income.

Much of the current debate has been focused on the technical details of digital copying. There have been fierce arguments, for example, over the copyright implications of the temporary copies stored in computer memory when users view web pages. In our view, this is the wrong approach. With technology changing so fast it is futile to base copyright principles on specific technologies or media. The issue is not whether or not a copy is, or was, created or for how long it exists. The real issue is for what purpose the copy came into existence. If a copy is made for the purpose of private use, it should not be considered a copyright violation. If a copy is made for commercial purposes, then copyright law should apply.

Which brings us to the issue of "fair use." In the broadest sense, the infosphere, the total sum of humankind's knowledge and wisdom, is the collective product of all and the birthright of every individual. All new knowledge, every single piece of new intellectual property, is built on the intellectual foundation of what has gone before. You cannot be a writer, or any other kind of creator, without also being a reader and a researcher.

Copyright has traditionally recognized the concept of "fair use," allowing authors to legitimately use and quote portions of someone else's copyrighted work as part of their own creation. The definitions of what is, and is not, permissible fair use are widely known and accepted. The traditional interpretation of the fair use provision of the Copyright Act takes into account the need for an unimpeded flow of information, and at the same time acknowledges the legitimate interests of those who own copyrights. There is no reason or need to change that in the digital age.

Information Super-Highway or Information Plantation?
It's time to stop touting the mythic "information super-highway" and start examining the "information plantation."

One of the worst abuses in American economic history was the sharecrop system. To briefly recap, the cropper worked the land all season for no pay. The cropper bore all risk from flood, drought, boll weevils, locusts, and God's other dangers. At harvest time, the cropper had to sell the crop (if there was a crop) to the landowner at whatever price he chose to grant. All downstream benefit and value from that crop then went entirely and exclusively to the master.

Let us look now at the lot of freelance writers. The number of publishers is steadily declining through mergers and monopolization, while prices and terms are increasingly being set on an across-the-board basis. An editor assigns a story, this many words on that subject for a minuscule fee, take it or leave it. We do the work, we turn in the manuscript. Maybe the editor accepts it, maybe not. Maybe it's rejected because a rival publication just ran a similar story, or the editor's boss had a change of interest, but whatever the reason, we did the work but we don't get our pittance.

If they do buy the story, they now insist we sell them all rights for the same small fee that they used to pay for First North American Serial Rights (1NASR). In other words, we used to sell them the right to be the first publication in North America to print our story, and we were free to make a little something extra by selling our foreign, anthology, reprint, and electronic rights. Now they not only insist on taking everything and denying us all downstream income, but they word the contracts to grant them all rights resulting from any media or technology that might someday be invented in the future.

Not only are the media cartels coercing us to sell all future rights to our work for no increase in pay, but they are unilaterally seizing and abrogating to themselves electronic and database rights to works we sold them before these new technologies even existed. And that issue is the heart of the Tasini versus New York Times lawsuit being supported by the National Writers Union. Those at the New York Times claim they can resell to electronic databases like Nexis work that we originally sold to them on a 1NASR basis. We say that is a gross and outrageous violation of our copyrights.

What really threatens creators is not personal copying by readers, but the concerted effort on the part of publishers and media conglomerates to force us into this modern form of economic peonage.

To carry the plantation analogy further, one of the darker corners of our economic landscape is the treatment and situation of migrant farm workers. Temporary work, low pay, no rights, no benefits. Now we see that high-tech creators are being forcibly converted from permanent to temporary employees. Not just writers, but engineers, programmers, artists, etcetera. Sun Microsystems used to hire direct contractors; now they force freelancers to be W2 temps of "payroll agencies." Microsoft lays off its "content provider" employees and rehires them back as temps. No job security, no rights, no benefits, and of course no union.

As high-tech temps, we face the worst of both worlds. We are treated as employees in terms of restrictions, supervision, and payroll deductions, but we receive no health or vacation benefits, no pension, no paid vacation. Yet we're treated as contractors in that we are often required to supply own equipment and off-site office, but we are prohibited from writing off our business expenses as tax deductions because we are "employees."

Now obviously, to literally compare writers and programmers to sharecroppers and migrant farm workers is a gross exaggeration. Hyperbole in its rawest form for the purpose of making a point. Things are nowhere near that bad for us. Yet. But the point is that the time to stand up for economic justice is before the conglomerates drive us into penury and serfdom.

You may think that this is our problem and you have no stake in it, but if professional, self-directed authors, freelance investigative reporters, and independent artists are denied the ability to make a decent living, then the only information and entertainment that will be available to you will be that which is produced by employees working as directed by media conglomerates, corporate PR departments, government agencies, and other institutions that hire talent to speak for them.

A Thousand Flowers or the Voice of Big Brother?
The First Amendment was written to guarantee politically the free flow of ideas and information. There once was a time not so long ago that even small towns had half a dozen or more newspapers. Anyone could set up a printing press, and if people were interested in reading what you produced, you could make a living. Ben Franklin and Thomas Paine were examples of the thinker-writer-publisher-printers that the First Amendment was written to protect.

But the First Amendment says nothing about economics. As the costs of printing and distributing to national markets increased, the independent voices were increasingly squeezed out. We all now understand that "Freedom of the press only applies to those who own presses."

These new media technologies now offer us both a threat and a promise. The promise is that they can bring down the cost of information distribution so low as to make it economically feasible for individuals and small, independent presses to reach audiences large enough to make them economically viable. These technologies could restore the original intent of a free press, and nurture a new flowering of intellectual freedom. They can lead to a great flowering of democracy as information flows into the hands of individuals who then participate in the world of ideas and politics.

One of the worst effects of both the rising cost of ink on dead trees and the monopolization of information distribution has been the increasing difficulties faced by those who wish to address some audience more sharply defined than the lowest-common-denominator-mass-market so beloved by corporate marketeers. It is proving almost impossible now to make a living addressing niche audiences such as the African-American community, gay and lesbian audiences, those with ideas at variance from the mass-media-defined mainstream, and other communities defined by culture, interest, occupation, and so on. But with its potentially lower costs of distribution, free and open electronic publishing holds out the hope that writers and independent publishers can survive economically outside the Walden-Borders-Sony-CBS-TimesWarner cartels.

But if the media monopolists succeed in cornering the information market and making it impossible for independent voices to survive economically, then all these wonderful new technologies will result in nothing more than additional channels for Madison Avenue hucksterism. Cyberspace, like mass-market television, will be turned into a vast wasteland of dumbed-down consumerism, homogenized indoctrination, and never-offend-anyone-in-Tulsa mediocrity. And the Internet will become nothing more than the digital equivalent of TV shopping channels.

And that, of course, is where organizations like CPSR and the National Writers Union come in. PBS television recently ran biographies of "trust buster" Teddy Roosevelt and Franklin Delano Roosevelt, the "father of the New Deal." But there was no mention of the agrarian granges, the wobblies, the small business associations, and the consumer groups that banded together to fight the monopolists. Teddy did not break the trusts as an act of individual beneficence; he did it because he was forced to by popular pressure. Similarly, the show left the impression that FDR bestowed upon grateful workers the right to form unions as a personal act of magnanimous generosity. But that ain't the way it happened.

Both Roosevelts supported reforms because people came together and raised hell until the government was forced to take action. And our great-grandparents did eventually curb the power of the railroad and oil barons, our grandparents did eventually force living wages from big auto and big steel, and our mothers and fathers did break the back of southern segregation. And we can resist the media cartels, we can open up the information plantation if we come together to organize and fight. But as the old saying goes: "Where the broom doesn't sweep, the dirt doesn't move." We are that broom, and it's high time we started taking care of the housework.

Bruce Hartford is the Secretary-Treasurer of the National Writers Union. Information about the Writers Union appears on the web at http://www.nwu.org/nwu.

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