Freedom
of Expression: Resistance and Repression
in the Age of Intellectual Property
by Kembrew McLeod
University of Minnesota Press, Minneapolis,
MN, 2007
379 pp. Paper, $18.95
ISBN: 978-0-8166-5031-6.
Reviewed by Hugo
de Rijke
University of Plymouth
United Kingdom
h.derijke@plymouth.ac.uk
This book is essential reading for anyone
who ever had an idea or created anything.
Whether youre a scientist, artist,
poor man or thief, this book reveals how
corporations and their lawyers use intellectual
property laws to zealously protect
but, in reality, stifle many areas of
science and culture. Usually this subject
makes dry and somewhat depressing reading.
Somehow, however, McLeods book is
not only erudite but also entertaining
and funny.
McLeod starts with a swipe against trademark
law, which is supposed to prevent consumer
confusion and unfair competition but is
abused by lawyers as a form of censorship.
In 1998 Fox News obtained a trademark
on their catchphrase, Fair and Balanced®
and later attempted to sue the satirist
Al Franken for naming his book Lies
and the Lying Liars Who Tell Them: A Far
and Balanced Look at the Right. Refreshingly,
McLeod combines his work as professor
of Communication Studies at the University
of Iowa with some inspired activism. In
1998 he ironically trademarked "freedom
of expression" to highlight the privatization
of culture. Subsequently, he hired a lawyer
to send a prank cease-and-desist letter
to AT&T, for using the slogan "Freedom
of Expression" in one of their ads
without his permission.
The book also attacks
patent law, which was designed to protect
inventions. However, in recent years pharmaceutical
companies have been allowed to patent
DNA sequences. For example, Myriad Genetics
holds a monopoly patent on breast cancer
genes, and charges huge royalties for
every breast cancer test. Indeed, pharmaceutical
patent-holders demand such high license
fees that research into many types of
cancer has become prohibitively expensive.
Patented drugs that save lives are prevented
by trade-related intellectual property
laws from being sold at affordable prices
in developing countries.
The primary target
is copyright law. McLeod focuses in particular
upon the music industry, providing a feast
of ironies and absurdities. Here we learn
that Time-Warners publishing division
owns the copyright to the song "Happy
Birthday to You", and demands royalties
for its public performance. Consequently,
in the mid-1990s the royalty-collector
ASCAP sent letters to Girl Scouts and
other summer camps, informing them they
had to purchase performance licenses to
sing "Happy Birthday" and other
campfire songs, or incur penalties of
$100,000 and a year in jail. ASCAP eventually
backed down, but the spectre remains.
McLeod points out that
"musical borrowing" has a long
and distinguished history, from classical,
blues, jazz and folk to hip-hop. Woody
Guthrie admitted adapting the music and
words of other artists to create popular
songs such as "This Land Is My Land".
He even wrote in 1940 that "anybody
caught singin it without our permission
will be mighty good friends of ours, cause
we dont give a dern." However,
the privatization of culture has led to
"overzealous copyright bozos"
putting the stops on free adaptations
and creative sampling. The company that
now owns the copyright prevents artists
from releasing new versions of Guthries
music. In the late 1980s hip-hop pioneers
Public Enemy sampled dozens of sound fragments
to create a single song. However, since
Biz Markie lost a landmark case in 1991
for using a 20-second sample, record companies
have aggressively monitored all sampling
and demanded license fees of up to $100,000
per sample.
McLeod argues persuasively
that the more we hear songs or see movies
for free (via home recordings or more
recently the internet), the more likely
we are to buy records, concert and cinema
tickets, and related merchandise. Entertainment
companies believed the VCR, home taping,
and file sharing would kill the industry
and tried to prevent them. Instead VHS
and DVD revenue became a multi-billion
bonus, box-office receipts continued to
rise, and home taping had a stimulative
effect on record sales. Similarly, file
sharing had no measurable effect on CD
sales. In fact, the free sharing of music
over the internet has created new markets
and cultures around the world. "World
War MP3" continues to rage but the
"gift economy" works: free downloads
of music, video and open source software
stimulate interest, creativity, collaboration,
productivity and sales.
A criticism of the book is that it wanders
back and forth, revisiting the same topics
in separate chapters. Also, despite a
global market, McLeod concentrates upon
the US and draws almost no comparisons
with other legal regimes. Although "copyleft"
models such as Creative Commons and Open
Source are given some attention, we are
left with no clear alternatives to the
status quo, and corporate lawyers can
sleep easy. Nevertheless, this book is
a significant achievement and vital stimulus
for creative thieves everywhere.