Vanity of vanities, saith the preacher; all is vanity.
And moreover, because the preacher was wise, he still taught the people knowledge; yea, he gave good heed, and sought out, and set in order many proverbs.
The preacher sought to find out acceptable words: and that which was written was upright, even words of truth.
The words of the wise are as goads, and as nails fastened by the masters of assemblies, which are given from one shepherd.
And further, by these, my son be admonished: of making many books there is no end; and much study is a weariness of the flesh.
IN I946,GROUCHO Marx received a letter from the legal department of Warner Brothers studios. The letter warned Marx that his next film project, A Night in Casablanca, might encroach on the Warners' rights to their 1942 film Casablanca. The letter prompted a reply from Marx that ridiculed many of the operational principles of rights protection in the film industry. First, Marx expressed surprise that the Warner Brothers could own something called `Casablanca` when the name had for centuries been firmly attached to the Moroccan city. Marx declared that he had recently discovered that in 1471 Ferdinand Balboa Warner, the great-grandfather of the Warners, had stumbled upon the North African city while searching for a shortcut to Burbank. Then Marx pondered how the filmgoing audience could possibly confuse the Marx Brothers project with the widely successful Warner Brothers production. American filmgoers, Marx argued, could probably distinguish between Casablanca star Ingrid Bergman and his blond brother Harpo Marx. `I don't know whether I could [tell the difference],` Marx added, `but I certainly would like to try.`
Then Marx turned the issue of name ownership on the Warners. He conceded that they could claim control of `Warner,` but certainly not `brothers.` Marx claimed, `Professionally, we were brothers long before you were.` Marx pointed out that even before the Marx Brothers, there were the Smith Brothers, the Brothers Karamazov, Detroit Tigers outfielder Dan Brothers, and `Brother, Can You Spare a Dime?` which Marx asserted was originally plural, `but this was spreading a dime pretty thin, so they threw out one brother.` Marx asked Jack Warner if he was the first `Jack,` citing Jack the Ripper as a possible precursor. Marx told Harry Warner that he had known several Harrys in his life, so Harry Warner might have to relinquish his title as well. Marx concluded his letter with a call for solidarity among `brothers` in the face of attacks from ambitious young lawyers who might seek to curb their creative activities. `We are all brothers under the skin and we'll remain friends till the last reel of 'A Night in Casablanca' goes tumbling over the spool.`
The Warner Brothers legal department wrote back to Marx several times, asking for a summary of the plot of A Night in Casablanca so the lawyers could search for any similarities that might be actionable. Marx replied with a ridiculous plot summary about brother Chico Marx living in a small Grecian urn on the outskirts of the city. The legal department again wrote for more detail. Marx answered by saying he had substantially changed the plot of the film. The new story involved Groucho Marx playing a character named Bordello, the sweetheart of Humphrey Bogart, and Chico running an ostrich farm. Marx received no more letters of inquiry from the Warner Brothers legal department.
In his responses to the Warner Brothers legal department, Marx made several points about mid-century trends in `intellectual property.` These trends have grown more acute in the last decade and presently threaten creativity and access to information. American copyright law at the beginning of the century tilted in favor of consumers at the expense of producers. In an attempt to redress that antiproducer imbalance, courts, the U.S. Congress, and international organizations have succeeded in tilting the body of law dangerously the other way. Groucho Marx is gone, but AOL Time Warner, Inc., is more powerful than ever.
Since the release of A Night in Casablanca, information, entertainment, and computer software have emerged as among the United States' most valuable resources and most profitable exports. Yet the legal system that supports and guides those resources, `intellectual property law,` remains the murkiest and least understood aspect of American life and commerce. The rules seem to change every few years, yet remain a step behind the latest cultural or technological advances. Ignorance of the laws and fear of stepping over gray lines intimidate many artists, musicians, authors, and publishers. Meanwhile, copyright libertarians flaunt the difficulty of enforcement over the nation's computer networks, and rap musicians lift samples of other people's music to weave new montages of sound that have found a vibrant market. In recent years, the following phenomena have complicated the discussion over what sorts of `borrowing` and `copying` are allowed or forbidden under intellectual property standards:
• Rap stars 2 Live Crew parodied Roy Orbison's song `Oh, Pretty Woman.` Orbison's licensing company, Acuff-Rose, sued the rap group, alleging that the new recording was not a true parody and thus was not protected by the `fair use` provision of the copyright law.
• In an airport, artist Jeff Koons spotted a picture postcard of a sub
urban couple hugging a litter of puppies. He instructed his un derstudies to build a sculpture of the couple and paint them ridiculous colors. Koons sold the sculpture to a museum, but the photographer sued him for copyright infringement and won.
The photographer now has possession of the sculpture as part of the settlement.
• The U.S. government has pressured the Chinese government to
crack down on publishers and vendors who issue unauthorized versions of American music, literature, and computer software.
• Motion picture companies in the 1970s urged the U.S. Congress
to restrict the sale of video cassette recorders in the United States, fearing that duplication of films would limit first-run movie profits. After losing the antivideo battle in Congress and in the courts, the industry embraced the technology and opened up a whole new sector for redistributing its products. Then, in 2000, the industry again lowered heavy legislative and legal hammers to stifle a technology that allows unauthorized private, noncom mercial access to and copying of digital video discs.
• Record companies in the 1980s stalled the introduction of digital
audio taping equipment into the consumer market, fearing high-quality home musical copying would limit compact disc sales.
Then, in the spring of 2000, the recording industry initiated a slew of legal actions to restrict the proliferation of file-sharing services such as Napster, through which fans can share compressed music files.
• Apple Computer Corporation unsuccessfully sued Microsoft Corporation for copyright infringement. Apple accused the software giant of illegally basing its Windows format on Apple's Macintosh graphical user interface design.All of these issues go deeper than the tangle of statutes and court decisions that weave the mesh of copyright law. They expose and depend on American ethical assumptions and cultural habits, including the notions of rewarding hard work, recognizing genius and creativity, ensuring wide and easy access to information, and encouraging experimentation in both art and commerce. More deeply, these issues raise questions about whether American culture, with its African American and American oral traditions and anti-authoritarian predispositions, can broadly deploy a legal framework drawn up by British noblemen three centuries ago. As American expressive culture becomes more technologically democratic, more overtly African American, more global and commercial, the archaic legal system it inherited has been remarkably able to accommodate all these changes, however imperfectly. The story of copyright law in the twentieth century has been the process of expanding, lengthening, and strengthening the ill-fitting law to accommodate these changes. Gradually the law has lost sight of its original charge: to encourage creativity, science, and democracy. Instead, the law now protects the producers and taxes consumers. It rewards works already created and limits works yet to be created. The law has lost its mission, and the American people have lost control of it.