The Gifting Logos. E. Johanna Hartelius
of individuals.”19 This point sets the stage for my analysis in important ways, dissociating proper name authorship and ownership from the motives of a circulation network. In the context of decentralized production of print and a general commitment to public access (including a free press and public education), McGill suggests, the proprietary connection between authors and their works was secondary. The link between a text and its identified owner was less important that the impact that the text’s circulation might have on an emergent community with text at its center. Successful authors sought exposure more than exclusive rights.
In the twentieth century the link between authorship and private ownership became the center of copyright policy debates, particularly in efforts to establish appropriate time periods of privilege. A series of copyright laws gradually extended the reach and duration of copyright. In the original 1790 act, the term of recognized privilege was fourteen years, with a single renewal option for another fourteen years. The 1909 revision of this act doubled down, extending the term to twenty-eight years with the option to renew for an additional twenty-eight. The major revision in 1976 extended the term to cover the life of the author plus fifty years. Furthermore, that this act protected “unpublished works” meant that producers of content need not register their creations with a central agency. Any idea captured in fixed form is covered by copyright. This automatic proprietary status still applies. In 1998 the Sonny Bono Copyright Extension Act changed the length of time to be added to the author’s life from fifty years to seventy years. In the same year the Digital Millennium Copyright Act, inspired by the World Intellectual Property Organization, sanctioned so-called digital risk management tools that control access to copyrighted materials.20 Criminalizing any attempt to circumvent such tools, Congress confirmed the legality of organized efforts to police copyright infringement using integrated digital mechanisms.21 A year later Eric Eldred, who had been publishing literary works from the public domain in an online library called Eldritch Press, filed a complaint contesting the constitutionality of the Sonny Bono Act. As a result of the Sonny Bono Act’s extension of copyright terms, Eldred’s press would not be able to publish anything more recent than 1923 until 2019.22 In 2003 the Supreme Court ruled against Eldred, confirming the constitutionality of the 1998 act. After this major statement regarding the Court’s interpretation of congressional authority to secure authors’ rights, a decade of intellectual property legislation followed that buttressed the legal ownership of text.
A Confluence of Developments
When studying on the one hand the legal regulation of copyright and, on the other, the idealism of digital activists like Eldred, one is prudent to consider three developments in confluence from the 1970s onward: first, the passing of laws and rendering of judgments that protect private ownership, the most important of which I have previously chronicled; second, the development of information infrastructure and technologies, including the end-to-end design of the internet, the popularization of the World Wide Web, and eventually low-entry platforms for creating content (including blogs and social media); and third, the commercial governance of software in the 1980s, resulting in a movement for open access.23 The last of the three merits a bit of commentary here insofar as it served in the late 1990s as inspiration for Lessig and the Creative Commons team.
As a language that allows people to communicate with computers, source code can be either opaque or transparent. The reason to keep it opaque, or secret, is generally commercial; proprietary code may be thought of as a trade secret. Transparent code, or open code, means that anyone can peek inside the machine. The peeker can not only discover the code that operates a program but take parts of it, modify them, and use them for new purposes. Richard Stallman, a legendary coder at the Massachusetts Institute of Technology, founded in 1985 the Free Software Foundation, whose agenda was to advocate for open software.24 The foundation developed the general public license (GPL) as a way to enable open code to remain open in multiple iterations. Simply put, use of a code covered by the license was required to be, reciprocally, open. If I peek into your code and turn it into something new for my own purposes, I have to render that new code open, just like yours. “Free” enters the picture as a consequence of the license’s insistence on openness in perpetuity. Open code is free insofar as it remains open.25 And free does not mean “available at no cost.” Stallman’s much-quoted adage is helpful here: “Not free as in free beer, but free as in free speech.”26 Of lasting importance within the digital commons, and for my purposes here, is that the GPL contained an ethic of use. Out of the open access software movement grew a public argument favoring free access not just to programming code but to cultural, artistic, and scientific content. This more general open access movement, in which the Creative Commons is a vocal participant, mobilizes concepts like “copyleft” and “free culture” politically.27 The open access movement’s advocacy must be seen in light of the theory of authorship and creative invention that the movement endorses, as well as that theory’s historical competitors.28
Copyright Conflicted: Two Models and Two Moments
Theories of copyright tend to be organized according to two models, both of which are grounded in assumptions about the author’s and the community’s claims to the material: the Anglo-American model and the French-European model. The former is utilitarian, prioritizing social instruments that ensure the greatest good for the greatest number of people. In this model, copyright incentivizes authors to create texts with economic rewards. As a result of these incentivized creations, the community as a whole advances. And when the specified copyright term runs out, the community advances by having access to the text directly. The second model relies on the ideal of individuals’ natural and moral rights (droit moral), which are thought to exceed the community’s right to text and culture, even as text and culture are generated in a shared environment of inspiration and influence.29 A person has the right to benefit financially from her or his labor. Moreover, a person who writes words on paper imprints the writing with a sort of indelible essence; that connection between author and text cannot be violated by the assignment or denial of legal rights. To the utilitarian model, and the laws that codify it, this belief that texts are imbued with their artist’s personality, and that the connection renders certain rights onto the artist, is dismissible as “intuitive, unanalyzed feeling.”30 The natural rights model and the utilitarian model, in short, reflect two different ways of thinking about authorship.
In scholarly exchanges about authorship, particularly those that center on the relationship between authors and texts, two disputes in twentieth-century intellectual history are rehearsed repeatedly. They demand inclusion here because their implications are especially pertinent to scholars of digital culture and technology, who are invested in both critical theory and the emergence of collaborative networks and fragmented artifacts. The first is the publication of Michel Foucault’s 1969 essay “What Is an Author?”31 In this essay Foucault argues that even though literary criticism and cultural theory generally may have accepted the “death of the author,” individual authors’ names still mark off “the edges of the text, revealing, or at least characterizing, its mode of being.”32 There is no understanding or theory of the text, what Foucault calls a “work,” that is free from “the millions of traces left by [the author] after his [sic] death.”33 The “author function,” Foucault explains, saves readers and scholars from the intolerable condition of literary anonymity. Far more dispersed than the real writer himself or herself, the author function “operates in the scission” generated by the deconstruction of singular authorship.34 Beyond literary and cultural assumptions, Foucault’s essay interrogates how power is appropriated and wielded discursively with or without the individual author(ity) of a name.35 His writings on these processes of power became especially influential among poststructuralist scholars in the United States in the late 1970s, when authorship and ownership were emerging as at once political and technical matters.36
The second momentous dispute is between Jacques Derrida and John Searle, debating the legitimacy of authorship as a convention of textual ownership. To Searle, authorship is an extension of the kind of intentional communication that a speaker effects when putting thoughts into words.37 Words belong to their utterer insofar as they represent his or her intentions. Derrida insists, simply put, that