For the last 30 or so years, I have been a popular music activist and educator. I have been asked to comment on the relevance of copyright law to community media. This fits with my own agenda for a couple of reasons: first, that music tends to get underrepresented in discussions of communication policy and media transformation (except when we want to censor it), and second, most of the copyright battles that will eventually plague all media have already happened in the music industry. We can learn a lot about the future by looking at the history of these struggles. 
We are currently engaged in righteous battles to “save access” and “save the internet” which seek to protect such hard won principles as local self-determination in the franchising process and the preservation of network neutrality for all public communication.
I want to suggest that if we look farther into the future and view these struggles as broadly cultural rather than narrowly technological, the biggest challenges facing the community media and technology movements are not going to be about funding, technical development, or infrastructure; they are going to be about access and use — and I am not talking here about access to the network itself, I’m talking about access to and use of the resources and products that comprise our culture. We are in a period of unprecedented privatization of knowledge and information and systematic restrictions on access and use. Battles of this nature get waged on the terrain of that oxymoron called “intellectual property,” and more specifically, copyright law.
Larry Lessig tells an interesting story about wanting to celebrate the first anniversary of the Free Culture Movement in 2005 by having a bunch of folks from organizations like the Electronic Frontier Foundation and Public Knowledge make a recording of “Happy Birthday to You” and post it on the web as a fundraiser for FCM. As the staff at Creative Commons quickly learned, however, “Happy Birthday to You” is under copyright until 2030, and their plan would have required both a mechanical license and a public performance license to implement. And even though they agreed to pay the 8.5¢ per download for the first license and the $800 per year for the second, inexplicably, neither license was forthcoming. FCM’s birthday came and went without a “Happy Birthday.” And that’s just a little ditty that should have been in the public domain years ago.
Now imagine the teen in your media center who’s doing an iMovie on urban violence and wants to keep it real by using a cutting edge Jay-Z or 50 Cent single for his soundtrack, rather than one of those cheesy free loops that comes with Garage Band. You’re probably not going to get permission. And you probably couldn’t afford it anyway. The question I want to pose is: Why should we even have to ask?
To look at media reportage today, you might think that copyright is simply an exclusive contract to exploit the fruits of one's creativity, but historically it has always been a juggling act which seeks to balance the legal protection of intellectual property, the rights of artists and authors to be compensated for their creativity, and the public rights of access to information and freedom of expression. Indeed, one could argue that consumers’ interests have been of paramount importance historically, even with respect to the rights of artists and authors.
From a legal standpoint, it can be argued that without the centrality of user's rights, copyright would be a violation of the First Amendment in that it limits free expression. From this perspective, concepts like rights of access and fair use cannot be viewed as crumbs thrown to the public; they are the necessary conditions that enable copyright law to pass constitutional muster in the first place. In the last century, however, user's rights have been steadily eroded in favor of corporate self-interest and the needs of the culture industries.
Since 2003, the music industry has sued about 19,000 of its best customers for copyright infringement. What is perhaps most interesting about these cases is that not a single one has yet been fully tried in a court of law. What the industry has been doing is using its legal might to intimidate people into settling out of court. To date, some 3700 individuals have forked over an average settlement of between 4,000-5-000 dollars. So look at what the industry has been able to accomplish without ever winning a case:
- They have been able to create the public perception that thousands of individuals are guilty of wrongdoing even though not a single person has yet been convicted of anything.
- They have been able to use the power of law to create a handsome new revenue stream for themselves, currently in the neighborhood of $18,000,000.
- And, more importantly for our purposes today, precedents get set, and the laws themselves don’t ever get tested.
This is why intellectual property law is so important to community media. If we gain the network and the infrastructure we want, only to lose access to and control over its content, what have we won?
(Note: This article is a portion of a larger article, which can be found at http://acmboston.org/node/340)
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