Cory Doctorow closing keynote at the Public Domain reopening: transcript

Key points

• Doctorow defines a grifter as a con artist who gets the law on their side, and uses the Aloha Poke trademark letters as an example.
• He links John Locke's idea of property and the concept of terra nullius to the erasure of people who already use a commons.
• He retells the history of copyright fights, from sheet music to Napster, as groups that took from others and then called it theft when it was done to them.
• He says Disney's role in term extension was a grift driven by campaign contributions rather than argument, and that copyright is a canary in the coal mine for other policy areas.
• He argues the public domain is anti-oligarchic, and that copyright rules should not treat everyday internet users like the entertainment industry.
• He closes with a story from Jamie Love about the Access to Knowledge Treaty, saying the fight must be taken up for those who come after.

Chapters

1. 0:01What a grifter is, and the Aloha Poke trademark letters
2. 3:31John Locke, terra nullius and erasure
3. 6:35Admirals and pirates versus grifters gone respectable
4. 11:00Disney, term extension and grifter governance
5. 14:15Why the public domain is anti-oligarchic
6. 15:48Copyright rules and who they apply to
7. 18:57Public records, the start of a long fight, and Jamie Love
8. 22:05Thanks to speakers and organizers, closing celebration

Full transcript

0:01Thank you very much. Thank you. So I confess that I struggled a little with how to open this talk. After all, I am sharing a bill with some of my all-time heroes and mentors, people who helped illuminate so many issues for me in a building consecrated to such a noble purpose, so audacious. And so I wondered, you know, should I make a joke about not coming here to praise Sonny Bono, but to bury him? But instead I thought, I would talk about a current affairs peg because that always works as a way to introduce a complicated subject you hook it into the news so I want to talk today about grifters not not mere con artists grifters aren't little solo bit players who do these little psychodramas on the street with their three-card Monty they con artists are just like gabby muggers who fast talk you out of what's rightfully yours, but a grifter puts on the veneer of

1:03respectability. He doesn't pick your pocket, he gets you to sign a contract saying that everything in your pockets belongs to him. And then he buys off the judge and he does it by operating out of a made town where every cop is on the take. The grifter doesn't mount a one-man performance piece. He constructs a kind of immersive LARP in which all the trappings of law and order are present, but filtered through a kind of dream logic where if he has to pick your pockets, it's only because you don't respect the law enough to empty them voluntarily.

1:40Now, that may sound very abstract, so I want to bring it down to earth with a recent example from current events. Let's talk about Aloha Poke. So, Aloha Poke, Midwestern chain, started in Chicago. They sell poke bowls, and they were founded in 2016. And they take their name from two indigenous inventions. The first one is the word aloha, which is thousands of years old. Its origins shrouded in historic mystery. But we think it was coined on the island of Tahiki, or Kahiki, which we now call Tahiti.

2:13And it's spread through all Pacific Island languages. And also poke, which is a delicious mash-up dish invented by Hawaiian chefs in the 1970s and spread to the mainland around 2012. Now, as you might imagine, given those two facts, there are a lot of restaurants around the world called Aloha Poke, or some variation on that. And most of them are run either by indigenous Hawaiians or people who grew up in Hawaii, or both. And there are, of all those Aloha Pokés, I'm sure that most of them are very respectable establishments serving delicious food, but one of them is a grift.

2:50Aloha poke is a grift. Last year, Aloha poke started sending trademark infringement letters to the proprietors of every other Aloha poke, claiming that any use of the word Aloha, whether by an indigenous Hawaiian person or anyone else, was a violation of this Chicago company's sacred legal rights. They had this law firm of Olson and Sipurtis draft letters of such bowel-loosening efficacy that many of the Aloha Pokes around the world complied, shelling out thousands of dollars to reprint their menus, signs, and other collateral.

3:31They allowed the ancient, commonly held language to be plucked right out of their mouths, and that's a grift. A grift is what happens when the con man gets a lawyer or a judge or the legislature or the president of the United States in his pocket. So this guy, John Locke, he's a key grifter thinkfluencer. Locke's 1660 Two Treaties on Government sets out the basis by which a commons can become private property.

4:04Locke wrote this when he was struggling with theology. He wanted to square up the existence of a scripture that on the one hand described the earth as being made for the benefit of all humans, and on the other hand had lots of nasty things to say about rich men and needles and camels, and he proposed that the world is full of stuff that no one was using, and that you could make that stuff into your property, by mixing it with your labor, which came from your body, which you owned.

4:39And so this sort of transitive property of ownership from your body to your labor to this stuff that no one owned would make it yours. But that stuff that no one owns, it's a funny category. In lock world, stuff that no one owns has come to mean stuff that so many people are using that it's impossible for one person to truly say that they own it. that you could never ask all the people who were using it to surrender what title they had. Lockworld then has only two kinds of things in it, private property and stuff that's waiting to become private property.

5:17And that private property has a fancy Latin name. Grifters love fancy Latin words. The Latin name for it is terra nullius, no one's land. Now, Terra Nullius has a long history. It's what settler colonists called Australia and other so-called New Worlds when they arrived, declaring that these places were empty. And you may imagine that this came as a hell of a surprise to the people who continuously occupied that land for 65,000 years throughout the entire span of the existence of behaviorally modern humans.

5:53So how does something that everyone is using become something that no one is using? Through erasure. Sometimes we erase the people. Since Australia was officially devoid of people, the indigenous people of Australia were declared to be officially not people, and thus genocide was visited upon them. And sometimes we erase the deed, not the doers. The use of aloha to describe many kinds of restaurants by indigenous people is declared irrelevant because they never papered over their title, while the use of the term by someone from Chicago is elevated to sanctity because he had the paperwork.

6:35Whether or not genocide is involved, the grift always involves paperwork and a rigged process explaining why you are a lawless cur for getting between the grifter and your stuff, which is now his stuff. So let's talk briefly about copyright technology and the efforts to control expression and dissemination by the winners of the last round of the Copyright Wars. And there's a standard account of this that I've said many times, I've said from this podium in this room, that I call the Admirals and the Pirates, and it goes like this.

7:07First, there was the sheet music publishers, and the sheet music publishers were taking the compositions of the composers, and they were selling them. and the composer said you are engaged in theft and the sheet music publisher said why no it's not theft what did you think we would do with this music so rather I'm sorry let me start that over first there were the sheet music publishers and then there were the recording artists and the recording artists came along and started to record the sheet music compositions and the sheet music composer said what are you doing recording our compositions and the recording artist said well what did you think we were going to do with these if not play them the fact that we're playing them into this phonogram makes no difference and then along comes the the next round of this where the broadcasters start to take compositions that have been recorded and they start to play them on the radio and the people who made the phonograms who got into this big fight with the sheet music people they say well when we did it it was legitimate artistic

8:08advancement but when you do it it's just theft And then the broadcasters confront the cable operators, and the cable operators take these signals and suck them down with community access TV antenna, community antenna TV, and then they spread it around communities, and the people who broadcast, who took the phonograms, who took the sheet music, they say, what are you doing? When we did it, it was legitimate artistic expression. When you do it, it's theft. And then along comes the VCR, and the cable operators who objected to the broadcasters, who objected to the phonograms, who objected to the sheet music publishers, they say, what are you doing with our cable signals when we took them from the broadcasters? That was legitimate. When you do it, it's theft. And then along comes Napster and file sharing and the VCR people go after the internet people and they say, what are you doing when we took the cable signals that were taken from the broadcasters, that were taken from the phonograms, that were taken from the sheet music?

9:02That was legitimate artistic progress, but when you do it, it's theft." And I call this the pirate and the admirals because every pirate wants to be an admiral. Everyone wants to kick the ladder away, right? But there is another version of that story. Not pirates and admirals, but grifters gone respectable versus upstarts who don't know their place. Grifters who say, I stole this stuff fair and square, buzz off and get your own. No one is quite so indignant as a grifter being reminded that he got where he is by taking from others, which explains a hell of a lot about the violent suppression of protests at Standing Rock.

9:44We stole this stuff fair and square, it buzz off. Grifting is a very law of the jungle affair. The little monkey gets punched out by a bigger monkey who gets his banana, and then a bigger monkey comes along to swipe it again and again and again until the biggest, most sociopathic of all the monkeys has all the bananas. After all, if you're declaring something to belong to no one, it helps that the people who are using it don't have any social power to point out that it belongs to everyone.

10:16You can use this, in fact, as a kind of a test to figure out who the biggest grifters are. The biggest grifters are the ones who are paping over to the title to the stuff that they made and block everyone else from paping over the title to the stuff that they took to make it. It's not a coincidence that our Western-derived copyright recognizes melodies as copyrightable elements, but not the complex polyrhythms that are the hallmark of Afro-Caribbean music. And that's why the Beatles could make rock and roll without permission from the African-American artists who pioneered those chord progressions, those rhythms and so on, only for the Beatles to have the lion's share of their rights picked off by bigger, meaner monkeys from the record companies.

11:00And now, those bigger, meaner types, they're the lords of the jungle who paper over their title and wave it at the hip-hop artists who sample the Beatles in order to suppress that work. Which brings me, of course, to Walt Disney. Now, I love Disney's art. And it was Larry who showed me how to love it. He pointed out that you can love how shamelessly Walt Disney plunders the pirate domain, freely mixing and matching elements from different works to create new stories that we tell today.

11:33Don't get me started on the dark rides and the theme parks. no one builds built environments and turns them into works of art like Disney Imagineering. So it's easy to write off Disney's central role in the confiscation of the public domain as mere hypocrisy, just ladder-kicking. When we did it, it was legitimate artistic progress, but when you do it, it's piracy. But what if it's a grift? If it were just hypocrisy, Disney would have fielded really good arguments, arguments that were compelling but one-sided about the fundamental justice of their position, sowing the kind of expensive doubt that made people uncertain of the link between smoking and cancer or anthropogenic climate change and CO2. Disney is perfectly capable of making those arguments. If there's one company in the world capable of coming up with compelling fairy tales, it's Disney. But back in 1998, Disney's arguments were as pro forma as today's

12:36climate denial argument. Disney knew that there wasn't any point in convincing the public that the public domain should be locked away for another 20 years, and they knew that the way to convince Congress that it had nothing of this had nothing to do with argument or reason, it all came down to campaign contributions. It's a grift. D.C. is a made town. The whole thing was papered over and sewn up faster than you could say Boston Strangler. So for decades this country has marched towards a form of grifter governance.

13:12As inequality has widened, the extent to which Congress depends on a few deep-pocketed oligarchs to keep their jobs has only grown. Our policies, therefore, only get to be evidence-based to the extent that they do not gore some billionaire backer's ox. The policies that benefit billionaires also extend their influence. So we lather, rinse, repeat our way into a future where every policy that's sized to fit through the Overton window is one that closes it a little on the way out now Jamie Boyle he calls copyright policy the evidence free zone and Larry Lessig famously only got Milton Friedman to sign on the Eldred brief if it couldn't if it could contain the phrase a no-brainer so it's tempting to think that copyright is this uniquely grifty domain but that would be a mistake if there's one thing our political climate has demonstrated it's that copyright is the canary in the coal mine, not a black swan. Climate policy, labor policy, pollution policy,

14:15pharma policy, it's grift all the way down. Copyright was just the low-stakes grift that was so easy that it got picked off early. So this is not meant to be a council of despair. Our public domain is growing again, and that is cause for celebration, for dancing in the streets. Because the public domain redounds to the public good, and the public domain is anti-oligarchic. The commons is no terra nullius. It is for us to use together without permission from or benefit to a multinational corporation.

14:51and that it is an important victory for evidence-based policy. It is anti-grift. It is a movement that strikes directly at the power imbalances between the players, unlike, say, expansions of copyright. In an oligarchic marketplace where a handful of companies call all the shots, five publishers, soon to be four, five studios, soon to be four, four big record labels, and so on, if you give an artist more copyright, right? It's like giving your bullied kid more lunch money. The bullies are just going to take that lunch money too. It's not going to buy your kid any lunch. Extend the term or scope of copyright and the media industry will just demand that us artists hand over all those new rights at the same time. The public domain is the opposite of term extension in more ways than one. It is raw material that artists can use without first having to enter into bondage with an entertainment conglomerate.

15:48So it's a start. But here's where we should go next. It is great to have a sensible copyright policy, but copyright's most important policy isn't what the rules say, it's who the rules apply to. The idea that just because our dominant form of communications, the Internet, involves making hundreds and thousands of incidental copies every time we do anything, that we should therefore regulate it as though it was an entertainment industry, that's a grift.

16:19Those funny alternate lyrics you think up for your favorite songs or the drawings you do of your favorite characters from art and literature or the stories you retell to your kids and your friends, those have never been part of the scope of copyright. They were offline and transient, and no rights holder even knew that they were being made. The fact that all of these now take place online doesn't make us all part of the entertainment industry. So think about this. I live in Burbank, California now, and half a mile in one direction is the Warner lot and half a mile in the other direction is the Universal lot. And there are lawyers at Time Warner and Universal who were able to use copyright as a framework to license the Harry Potter stories to build a giant and rather good theme park at Universal Studios. Now, they needed copyright to be technical and nuanced so that they could do this very big multi-million dollar deal. And that's fine.

17:17But a set of rules that is that technical and nuanced will never be possible by a kid living on my street and beautiful suburban Burbank who wants to write some Harry Potter fanfiction. If we make the rules easy enough for her to follow, they will be useless to Universal and Time Warner. And if we keep them useful to Time Warner and Universal, we guarantee that she will be a lawbreaker with every interaction with culture that she has. So it's a grift. When everyone is violating the rules all the time, we are all being primed to be grifted.

17:51It's a grooming technique to make victims for grifters, because we self-police, we bow before any censorship attempt that contains the word copyright, because we know in the back of our mind that we are all copyright criminals. Now, I need to understand copyright, because I'm part of the entertainment industry. I chose that, but you shouldn't have to be part of the entertainment industry. You shouldn't have to understand this abstruse body of law just because you're doing culture. Culture includes the entertainment industry, but it's so much larger and more important than the mere industrial players in our culture.

18:26And the Internet, it's not just a culture mechanism any more than it's a video-on-demand service. The Internet is the pluripotent omni-network that does everything. It's where our health, and family, and politics, and civic life, and education, and romance all take place. And the grift doesn't care about that stuff. Grifters just want to flip your house, colonize your land, and steal the words out of your mouth. To paper it over in a way that seems legal, but is ultimately only legal adjacent.

18:57The grift even wants to steal the law. If you need evidence that the law is part of the grift, just remember, when Aaron Swartz and the Recap Project published public domain court records, they called in the FBI. Why? And now the rogue archivist and American hero, Karl Malamud, is on the wrong side of lawsuits over and over because he has the temerity to publish the law so he can know what it says and follow it. Now I am very glad that the public domain has reopened. I am so glad.

19:28But even though this is the end of decades of fighting, ever since retrospective term extension went from an evil supervillain master plan to a feature of American law, even though Even though we used up so much blood and treasure just to get here, this is really just the start. It's barely a beachhead, it's a toehold, but it's still solid ground. It's something we can stand on while we push for the policies that benefit the many and not the few, policies that insist that the sky is up, the earth is down, cigarettes will give you cancer, climate change is real, aloha is not terra nullius, and undoing retrospective copyright term extension is a no-brainer.

20:13Now, this is not the kind of fight that we win. The forces of greed and reaction and selfishness will never be abolished. This is the kind of fight that we fight, that we commit ourselves to so that the fighters who come after us will build on the commons that we formed out of our victories. We need to live as though it were the first days of a better world, even and especially when things seem to be getting worse. And I want to finish with something I learned from someone who's not here today, but who could easily have been on the bill, a guy named Jamie Love from Knowledge Ecology International.

20:50And Jamie convened a very audacious meeting in Geneva one time when I was working as EFF's European director to plan out something called the Access to Knowledge Treaty. And we gathered on a Sunday morning at Médecins Sans Frontier's offices, and someone said to Jamie, Jamie, how, why are you doing this ridiculous thing? What makes you think we can write a treaty that undoes the worst accesses of burn, that guarantees access to people with sensory and physical disabilities, that rebalances the public domain and so on?

21:22Who are we to do this? And he said, look, you know the TRIPS, you know the WTO, you know all these agreements that we're fighting over, that we're fighting against, that seems so insurmountable. They were formulated by people no smarter than us. No better than us, in a room just like this one, probably within a couple of kilometers of where we're standing now in Geneva. And if they can do it, we can do it. So that's what I want to finish with. Thank you very much. Thank you. Hello.

22:05Thank you very much. I'd like to ask all of the speakers to come on up. Come on up and join. Someone told me this was kind of like getting the band back together again. So let's get all of you back up on stage. Oh, that sounds great. And Pam and Jamie, come on up. This is the band, the open access band. Paul, please, please head on up. And now I would also like to bring three special people up because more than anyone else, today's amazing grand reopening is because of Tim Vollmer, Lila Bailey, and Caitlin Olsen.

22:48Please join those folks. We could not have done it without their leadership, their attention to detail, their passion, their knowledge. It has been a long time coming, folks. 20 years of fighting, of believing, of watching the gate. But today is a day to celebrate. You are the creators, you are the fighters, you are the lawyers, you are the policy people, and we salute you. Thank you.

23:23Happy birthday to you. Happy birthday to you. Happy birthday, dear Terridor. Happy birthday to you. Let's go have some polka downstairs.

23:55There is a reception downstairs. You can stay up here and learn how to Charleston. There will be music, many things. Films by Rick Preilinger. Please stick around. The party continues. And one more thank you to our amazing MC, Wendy Hanamura, who made this day go so smoothly and so wonderfully. She worked so hard and tirelessly to bring this show to you. Thanks to everybody for coming. This has been an absolute pleasure.

24:28And let's party! Some of you are heading to Yerba, Gwena. You should just...

Source and licence

Recording: File:Closing Keynote for Grand Reopening of the Public Domain Cory-Doctorow at-Internet-Archive.ogv by Cory Doctorow (2019-01-25), via Wikimedia Commons. Licence: CC0.

The transcript is machine speech-to-text by the TidyTools Audio & video transcriber; the summary, key points and chapters were written by Claude from that transcript. Both may contain errors: check the recording before quoting it.