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Eben Moglen - From the birth of printing to industrial culture; the root of copyright
New York, April 2007 
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Even before the birth of copyright laws in the strict sense, there already existed systems for the control over information reproduction which gave the owners of copying equipment a stake in cultural production. Moglen sketches the history of copyright law as a form of industrial regulation, and analyses how the changes in technology have thrown the roles created by those laws into crisis. Where once control resided in the physical artefact itself, digitalization has forced the law to step in and control access rather than just copying.

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00:00:00 Interview with Eben Moglen
00:00:06 Well I think I would begin by putting it this way
00:00:10 The book, which is the first mass-produced article in western culture,
00:00:15 is really the beginning of the process of industrialization of information.
00:00:24 The medieval artisan producing or consuming information, traveling long distances ,
00:00:32 confronted with the difficulty of searching out people possessing specialised knowledge,
00:00:38 becomes in the space of two generations only,
00:00:43 the western european world of books, of printed mass produced artefacts,
00:00:50 that spread knowledge widely,
00:00:53 and make the process of accumulating specialised knowledge about the world
00:01:00 a process of memory rather than a process of travel.
00:01:04 From that world we move, over the course of the edisonian revolution,
00:01:10 from the third quarter of the 19th Century to the end of the Twentieth,
00:01:15 into a world in which memory becomes instead the omnipresent analogue articles of culture.
00:01:24 So the book an article present in a library, consultable by a skilled audience,
00:01:32 is largely replaced by the moving picture, the sound recording,
00:01:38 the available vernacular culture which puts an immense amount of information
00:01:44 not at the disposal of the skilled but at the doorstep of everyone.
00:01:49 Now this was intended for a purpose, it was intended, or at any rate it grew up right alongside
00:01:56 Henry Ford's conscription of the workers of the world into the new army consumers.
00:02:03 people who saved capitalism from its rough spots by consuming its production
00:02:09 who ended its crisis of overproduction by becoming a disciplined army of consumers.
00:02:19 And to become a disciplined army of consumers
00:02:21 the world's workers had to be provided a culture which explained consumption,
00:02:26 made them want, told them what to want,
00:02:32 gave them aspirations and concerns
00:02:33 that were not the authentic product of their experience
00:02:39 but were the transferred product of vicarious experience.
00:02:44 And as analogue forms this culture
00:02:48 which required industrial processes to make, to produce records,
00:02:53 to produce celluloid, with the little holes cut in it,
00:02:58 I was watching an old Mel Brookes interview, conducted by Dick Cavitt,
00:03:06 now being presented by the New York Times as an act of museum conservateurship in film,
00:03:15 in which Cavitt asks Mel Brookes:
00:03:17 "What's the hardest part of making a motion picture?"
00:03:19 And he says "oh...punching the little holes in the edges of the celluloid."
00:03:24 Well if you think about it in a way that's correct,
00:03:26 that is the hardest part of making a motion picture
00:03:28 which is why in the world of digital computers it is so easy to make films,
00:03:32 because you don't need to punch all the little holes in the celluloid any more.
00:03:36 In other words culture contained in analogue artefacts,
00:03:39 was culture whose control resulted from the difficulty of making it, moving it and selling it.
00:03:45 Control came naturally as part of the process of the existence of the medium itself.
00:03:50 What happened when we moved, at the end of the twentieth century, to digital media
00:03:55 was that the process by which memory became experience
00:03:58 over the long history from the book to the edison motion picture
00:04:02 became memory is now immediacy, it's the things we make ourselves, instead of remembering.
00:04:09 We're sitting in a bar with our friends and we have a camera in every cell phone
00:04:14 a movie camera in every cell phone
00:04:16 and everything we take goes straight to flickr and youtube
00:04:20 and in fact memory is becoming the attribute of the network now.
00:04:24 And experience is becoming an attribute of the network now.
00:04:30 And the control, that used to reside in the very making of the artefact, is up for grabs.
00:04:37 and that's what I think moves us
00:04:40 from a world of the catholic church's control over ideas,
00:04:44 threatened by the protestant artefact of the book
00:04:47 to a world in which the Edisonian companies benefited from control,
00:04:52 not over the book but over celluloid and how to punch the little holes,
00:04:56 to a world in which the network made control, like production,
00:05:01 as easy as consumption and disciplined behaviour
00:05:06 and that's the enormous threat, promise and wisdom of the technology for our time,
00:05:13 that it challenges the very bases of control.
00:05:20 Well both the copyright and patent laws,
00:05:23 these principles of government that control over information flow
00:05:28 they are - as law often is -
00:05:31 pieces of technology made in a period of material stratum A
00:05:37 surviving into material Stratum B.
00:05:40 So they mix a peculiar set of incentives and phenomena
00:05:46 The patent laws and copyright laws are basically about 17th and 18th century conditions,
00:05:55 implemented in 19th Century ways
00:05:58 and then redeployed in 20th Century to meet 21st Century problems.
00:06:05 The basic difficulty that presents itself, that the law of copyright is meant to deal with,
00:06:10 is that, as you say, it's expensive to make a printing press
00:06:14 but once you've made it,
00:06:17 you have to find a way to decide what to use it on
00:06:23 and the real question is what should the printer spend his time printing.
00:06:27 So you have to give the printer an incentive to print the particular thing.
00:06:33 It isn't, as has sometimes been suggested by the owners of culture in the late twentieth century,
00:06:39 that if there weren't incentives they wouldn't print anything at all
00:06:42 they are of course going to run the press,
00:06:45 and the man builds a press because he can make money printing something
00:06:49 the question is whether what he ought to print is somebody's business cards,
00:06:53 somebody's wedding invitations, or somebody's novel.
00:06:56 In other words the question is how to determine what it is that gets made
00:07:01 with the scarce industrial processes of making.
00:07:05 Culture is profitable, if you can buy it cheap, and sell it dear.
00:07:12 and it is to that extent profitable because it's special, different or unique.
00:07:19 What floods into France,
00:07:21 as Robert Darnton showed in thinking about eighteenth century french culture,
00:07:24 What flows into france from the presses of Amsterdam
00:07:27 is what the french aren't allowed to make for themselves,
00:07:30 which is why pornography and politics are the stuff of printing for export in the 18th century.
00:07:37 But what that does,
00:07:40 that process of making for the market by making what is least obtainable does,
00:07:48 is to threaten that you'll wind up with a press consisting entirely
00:07:52 of government periodicals and pornography
00:07:55 What are you going to do to prevent that?
00:07:57 You're going to try and give printers a stake in the progress of literature.
00:08:03 - which is what the copyright law really is, it's a grand jeffersonian sort of an idea.
00:08:09 That we will turn democracy into a way for encouraging virtue among printers
00:08:15 And we'll get everything to work in such a way as to speed
00:08:20 the diffusion of knowledge and the useful arts.
00:08:24 So in that sense, copyright law takes a rise
00:08:29 from a noble experiment intended to meet
00:08:33 an appropriate 18th or early 19th century problem,
00:08:38 and it by the edisonian period has evolved
00:08:42 what is the necessary concomitant for its time, which is the 'work for hire' doctrine.
00:08:47 it has to become possible to use that system for encouraging virtue amongst printers
00:08:53 actually to encourage the success of larger commercial publishing enterprises.
00:08:59 Where Manhattan is thought of as the centre of printing in the 19th century,
00:09:04 it will be thought of as the centre of publishing in the twentieth century,
00:09:08 and that's a very different meaning,
00:09:11 it's not about the light industrial process of printing something on pieces of paper
00:09:17 it's about the control of a large vertically integrated system of cultural production
00:09:23 and for that you need the 'work for hire' doctrine.
00:09:26 As 18th century booksellers in London needed Grub Street.
00:09:30 that is some content producer
00:09:32 to meet the demand of the wide pipe of printing
00:09:37 that their concentration of the machinery of printing and binding has set up.
00:09:42 The Edisonian institutions needed content behind them,
00:09:46 And they needed content they could claim to own.
00:09:50 So in that sense copyright law comes, through the work for hire doctrine,
00:09:54 and its relationship to the law of employment,
00:09:57 copyright becomes the organizational organic document
00:10:02 for these immense media enterprises.
00:10:06 Once media enterprises have come into existence,
00:10:09 once New York city is a centre of publishing rather than printing,
00:10:15 Then any medium that comes along has to be co-opted in the same way.
00:10:18 The principle of vertical integration has to be maintained.
00:10:22 And as you move from publishing on paper to radio broadcasting,
00:10:27 television broadcasting, news dissemination, financial information dissemination,
00:10:35 you apply the same model to it: somebody makes it,
00:10:38 that creates a property interest,
00:10:41 that property interest is transferred through an employment contract,
00:10:45 and becomes a disposable piece of property in a market economy.
00:10:50 That seems to meet the need for the industrial organizations of the time.
00:10:56 Now if the technology makes another change,
00:11:00 and control no longer inherently resides in the object of information itself,
00:11:07 Then copyright has to become a law about control
00:11:10 Not a law about these organizational dispositions
00:11:14 and you begin to get, as in the DMCA, or the European Union copyright directive,
00:11:22 you begin to get para-copyright law,
00:11:24 law which is about control over use, not control over production,
00:11:29 because that jointure between the user,
00:11:32 the consumer, the producer and the distributor, has become too tight.
00:11:37 And the law has to get in there and force a differentiation of roles again.
00:11:42 But that's nothing to do with where copyright started,
00:11:45 it's nothing to do with what made copyright law effective
00:11:49 in the organization media of in the first place.