Introduction Excerpt for Against Progress

FIGURE 1 Photograph used with the permission of David Slater, a wildlife photographer whose work can be found at DJSphotography.com. This photo can also be found on Wikipedia, https://en.wikipedia.org/wiki/Monkey_selfie_copyright_dispute. Wikipedia describes it as “Macaca nigra self-portrait” and claims that it is in the public domain, although Slater asserts authorship of the photograph. According to correspondence with the U.S. Copyright Office, Slater registered the photograph in 2012 as part of a large unpublished collection of photographs. I corresponded with Slater in the process of writing this book. He described frequently licensing the use of this photograph and others through his agency.

Introduction: Is Progress More?

THIS IS A PHOTOGRAPH of a crested macaque named Naruto. At the time of this photograph in 2011, Naruto was three years old and lived on a reserve on the island of Sulawesi, Indonesia. Naruto took this photo herself. It is a monkey selfie.¹

Working weeks in the jungle, David Slater, a British wildlife photographer, had been thwarted in his attempts to take close-up photographs of the monkeys. Encouraged by the monkeys’ playfulness and curiosity, however, Slater set up his camera to entice the troop of monkeys to engage with the equipment. He installed the camera on a tripod with a wide-angle lens and settings optimized for close-ups, and then he lured the curious animals to the machine.² In one interview about the photo shoot, Slater describes the monkeys as “looking at the reflection in the lens, which they found amusing.”³

The idea paid off eventually, and the monkeys took dozens of selfies. Once the photographs were published in British newspapers, they understandably attracted significant attention.⁴ Thereafter, an editor on Wikimedia Commons uploaded Naruto’s selfie, asserting that the photograph was in the public domain, as “it has no human author in whom copyright is vested.”⁵ Slater contested this assertion. He claimed authorship and ownership of the photograph, emphasized the hard work and significant skill that went into producing it, and asked for the photograph to be taken off the site.⁶ Wikimedia Commons refused.

While experts debated whether nonhuman animals could be copyright authors, Slater complained about lost revenues from his photograph’s unlicensed use and his precarious financial circumstances.⁷ In December 2014, Slater published the monkey selfies in a book, titled Wildlife Personalities, through Blurb, Inc., a San Francisco–based self-publishing website. In the book, Slater described the photo of Naruto as the monkey “star[ing] at herself with a new found appreciation, and mak[ing] funny faces . . . just as we do when looking in a mirror. She also . . . made relaxed eye contact with herself, even smiling. . . . Surely a sign of self-awareness?”⁸ The book identifies Slater and Wildlife Personalities, Ltd. as copyright owners of the photographs, despite the U.S. Copyright Office having issued an opinion several months earlier, in August 2014, that “only works created by a human can be copyrighted under United States law.”⁹ The Copyright Office further stated that it would “refuse to register a claim if it determines that a human being did not create the work. The Office will not register works produced by nature, animals, or plants,”¹⁰ giving as examples of excluded works “a photograph taken by a monkey” and “a mural painted by an elephant.”¹¹

The dispute between David Slater and Wikimedia Commons centers on control over and access to photographs on the internet. Wikimedia Commons is an internet platform for freely usable media files to which anyone can contribute with a mission of building a vast, accessible public domain of information and expression on the web.¹² Slater, a professional photographer, understandably cares about being paid for his work and is invested in maintaining rights in his photographs on the internet. These are weighty concerns and plausibly in conflict. A year later, another related dispute arose that raised even more fundamental questions.

In 2015, People for the Ethical Treatment of Animals (PETA) sued Slater, Blurb, Inc., and Wildlife Personalities, Ltd., for copyright infringement on behalf of Naruto. PETA argued that the monkey was the author and owner of the photograph, not the man. PETA, the largest animal rights organization in the world, describes itself as “establishing and protecting the rights of all animals” and operating “under the simple principle that animals are not ours to eat, wear, experiment on, or use for entertainment.”¹³ PETA sought recognition for Naruto under copyright law and, ostensibly, under law generally in order to elevate animals as worthy of respect and rights to be free from harm. Intellectual property law became the vehicle to make these arguments. At this point, David Slater had to defend not only his right to be paid by Wikimedia Commons for the use of Naruto’s photograph but also his supremacy of authorship over a monkey.¹⁴

PETA’s case was filed in federal court, which preliminarily had to decide whether PETA could sue on behalf of Naruto as the monkey’s “next friend”—a term denoting legal status of a person or organization representing another who is otherwise unable to maintain suit on their own behalf. If PETA could not be Naruto’s “next friend,” the court had to decide whether Naruto could sue on her own. On its face, this might sound silly. But in 2004, a different federal court held that the cetacean community, composed of all the world’s whales, porpoises, and dolphins, could sue President George W. Bush and Secretary of State Donald Rumsfeld under a specific provision of the 1973 Endangered Species Act to challenge injuries caused by the U.S. Navy’s use of underwater sonar. If whales, porpoises, and dolphins could successfully allege injury against the U.S. Navy, why not crested macaques, whose creativity and likeness were purportedly taken and commercialized without permission?

PETA’s federal lawsuit lasted four years, cost tens of thousands of dollars, and generated contested decisions at the trial and appellate courts. David Slater and his partners eventually prevailed, convincing the court that animals cannot be authors. But is that so obvious? Children can be copyright authors. Corporations can be copyright authors. Capacity and humanness are not essential features of copyright authorship. PETA was not asserting that animals are human but that they should have some of the same basic rights of humans—namely, to be free from exploitation and harm. PETA brought this suit to assert the dignity of animals in the manner that authorship provides: as an expression of will in the world. Using copyright as an expedient framework, PETA argued for equality, dignity, and an opportunity to thrive on a shared planet with rapidly diminishing resources. At its foundation, PETA’s demand was empathy for all forms of life at a time when interspecies cooperation may become necessary for continued survival.

Naruto is now a famous monkey. But copyright law, the vehicle for her fame, is one of several branches of intellectual property (IP) law that remain obscure to most laypeople. And yet, as the twenty-first century progresses with its proliferating networked communication systems and innovative digital technologies, intellectual property law is more frequently the focus of public debate and personal disputes. Intellectual property is growing in relevance and renown. And as it becomes increasingly relevant to everyday life, it is becoming a vital terrain over which fundamental values are being contested in light of twenty-first-century technological progress. This book maps the contours of this terrain and the features of the debate.

The founders of the United States conceived intellectual property as the means to achieve progress of science and the useful arts. The first article of the United States Constitution explicitly says this much. It gives to Congress the power to “promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”¹⁵ And yet, more than two hundred years later, what “progress” means and whether intellectual property promotes it remain unclear.

Uncertainty over the meaning of “progress” is one source of destabilizing tension. Technological advances occur at a rapid pace, while wealth inequality and political divisiveness related to these technological resources appear to be at unprecedented levels without foreseeable amelioration.¹⁶Against Progress explores this tension by attending to intellectual property disputes in court and in everyday life in such a way that calls into question the shifting meaning of “progress of science and useful arts” in the age of digital reproduction and rapid technological change.¹⁷ Rather than focusing on the nature of inventorship, authorship, and commercial incentives, which are typical intellectual property concerns, I focus on how disputes about intellectual property revolve around more basic fundamental values. In a world rich with technology but facing rising global political instability and looming ecological disaster, this book sets aside conventional accounts of intellectual property’s justification and reimagines progress of science and the useful arts for the Anthropocene. Fundamental values like equality, privacy, and distributive justice are central to human flourishing and human dignity but have been largely absent from intellectual property law and policy. The book frames current intellectual property law and its role in everyday life as about these values and their contested contours as a bellwether of changing social justice needs in the Digital Age.

The old story is that copyright and patents promote the progress of science and the useful arts by granting to authors and inventors, for a limited time, a property right in the work made. This story explains that to encourage the work of intellectual labor, which is easily copied and resold (think a song or an invention), an author or inventor needs exclusive control over the work to recuperate the economic investment that produced it. Without property-like rights, the story goes, the progress of science and useful arts will slow if not stop altogether. This is the “grand incentive narrative” justifying intellectual property laws. This story requires revision in the Digital Age.¹⁸

Maturing conversations about the roles that creativity and innovation play in flourishing economies, in communities, and with everyday labor reveal that exclusive property rights may degrade rather than develop community sustainability. Technological progress and ubiquitous internet networks have not fostered or equitably spread general welfare or strengthened democratic governance, although they have enabled more copying and sharing and more iterative, derivative, and radical transformations of expressive and inventive work through those networks. These pioneering Digital Age behaviors are not rooted in exclusivity as much as in a newly imagined commons or a revised notion of the public sphere. In other words, private property rights are old news. Instead, values promoting social well-being and democratic politics such as equality and fairness structure relationships that foment creativity and innovation. The new story is that twenty-first-century creativity and innovation are developed through both human and digital networks bound together by evolving relations of mutual interdependence, all of which is reconfiguring twentieth-century society and politics for our internet age. Democratic and fundamental human values today—equality, privacy, distributive justice, and institutional accountability—orient disputes and practices concerning authorship, inventorship, and intellectual property generally, which is a departure from twentieth-century intellectual property justifications. Tracing intellectual property’s contested place in the Digital Age, Against Progress uncovers new accounts of intellectual property and pivotal shifts in a legal regime that promises progress of science and the useful arts in a society more technologically advanced than ever but struggling with destabilizing wealth disparities, uncertain political institutions, and ideological division.¹⁹ By studying everyday creative and innovative practices and contemporary intellectual property disputes, the book explores these new theories of “progress” for the internet age.

What does “progress” mean in the Constitution? The history of the constitutional clause is sparse, and thus policy preferences drive contemporary debates about its meaning.²⁰ Is “progress” simply more copyrighted works or patented inventions? Is it measured by welfare economics, job creation, or health outcomes? Is “progress” achieved if we know more today about breast cancer than we did ten years ago but diagnostic tests are widely inaccessible because of the high costs related to patent licensing practices? Contemporary music-making technology, such as the ability to self-record and self-publish on the internet, may not be “progress” for musicians and audiences if fewer reliable filters exist for promotion and quality and if substantial capital investment is needed to build and keep an audience. Perhaps “progress” in scientific fields occurs through iterative improvements to understanding the natural world, but what is “progress” in the aesthetic fields, such a visual arts, music, and writing?²¹ Can we say that films are better today than in the 1950s? Is contemporary art an improvement over impressionism? The lightning-speed facility to copy, share, and transform almost anything with our cell phones combined with the ability to alter political stability and personal identity with digital clicks requires that we rethink the meaning of “progress” promoted by intellectual property incentives and measured by the quantity, not quality, of intellectual property.

The meaning of “progress” may be ambiguous, but we do know that when the United States was founded, “science” meant the systemized study of a branch of learning, as in the “science of commerce,” “political science,” or the “science of war,” books about which were within the scope of copyright law.²² It did not mean, as it does today, the specific practice of sciences such as biology, chemistry, or physics. “Useful arts” referred to practical skills and applied sciences, including manufacturing, agriculture, and civil engineering.²³ It did not mean fine arts, such as poetry or painting. Whether the fine arts, including photography, film, video, and music, were meant to encompass “sciences” protected by intellectual property law remains a subject of ongoing inquiry.²⁴ But since the Supreme Court’s 1903 decision extending copyright protection to circus advertisements and lithography, copyright law has protected expanding forms of human expression and broader forms of art without discrimination as to their aesthetic merit or market value.²⁵ Today, it is common to accept that “science and useful arts” means technological innovation and artistic creations, which is quite different from the phrase’s origins. As the constitutional clause evolves over time, so too may the nature of the progress that it addresses.

Notes

1. Naruto v. Slater, 888 F.3d. 418 (2018). There is some debate as to whether Naruto is male or female and about Naruto’s age. See, e.g., Sarah Jeong, “Did PETA Name the Right Macaque in Its ‘Monkey Selfie’ Lawsuit?,” Vice, Sept. 25, 2015, www.vice.com/en/article/ae353a/did-peta-name-the-right-macaque-in-its-m…. David Slater, the photographer, describes Naruto as female. In most other relevant respects, I refer to facts in the court decision, although that is not to concede that courts always get the facts right.

2. For Slater’s own account of how he lured the monkeys to the camera, see his professional website, www.djsphotography.co.uk/original_story.html. See also “Ape-rture Priority Photographer Plays Down Monkey Reports,” Amateur Photographer, July 5, 2011, www.amateurphotographer.co.uk/latest/photo-news/ape-rture-priority-phot…. Slater’s description of how he set up the camera to encourage the monkeys to play with it has been repeated in many such media accounts. Some have described Slater’s descriptions as self-serving, however.

3. “Photographer Goes Ape over Monkey Selfie: Who Owns the Copyright?,” Amateur Photographer, Aug. 7, 2014, www.amateurphotographer.co.uk/latest/photo-news/photographer-goes-ape-o….

4. See, e.g., Stephen Morris, “Shutter Happy Monkey Turns Photographer,” The Guardian, July 4, 2011, www.theguardian.com/world/2011/jul/04/shutter-happy-monkey-photographer.

5. Macaca nigra self-portrait.jpg, Wikipedia Commons, https://commons.wikimedia.org/wiki/File:Macaca_nigra_self-portrait.jpg#….

6. Julia Carrie Wong, “Monkey Selfie Photographer Says He’s Broke: ‘I’m Thinking of Dog Walking,’” The Guardian, July 12, 2017, www.theguardian.com/environment/2017/jul/12/monkey-selfie-macaque-copyr….

7. “Every photographer dreams of a photograph like this,” Slater said of the image of a primate grinning toothily into the lens. “If everybody gave me a pound for every time they used [the photograph], I’d probably have £40m in my pocket. The proceeds from these photographs should have me comfortable now, and I’m not.” Wong, “Monkey Selfie Photographer.”

8. David J. Slater, Wildlife Personalities (San Francisco: Blurb Inc., 2014), 11.

9. Compendium of U.S. Copyright Office Practices, § 313.2, U.S. Copyright Office, Dec. 22, 2014, 22. (“To qualify as a work of ‘authorship’ a work must be created by a human being. . . . Works that do not satisfy this requirement are not copyrightable. The Office will not register works produced by nature, animals, or plants.”)

10. Compendium of U.S. Copyright Office Practices, § 313.2, 22.

11. Compendium of U.S. Copyright Office Practices, § 313.2, 22. There appears to be no record at the U.S. Copyright Office of Slater attempting to register copyright in his name for the photo of Naruto.

12. At present writing, Wikimedia Commons has over sixty-four million files.

13. See PETA’s website and mission statement at www.peta.org/about-peta.

14. For an analysis of how David Slater may be an author even if Naruto pushed the camera button, see Jane C. Ginsburg and Luke A. Budiardjo, “Authors and Machines,” Berkeley Technology Law Journal 34 (2019): 343–456.

15. U.S. Constitution, Article I, § 8, cl. 8.

16. Austin Clemens, “Eight Graphs That Tell the Story of U.S. Economic Inequality,” Washington Center for Equitable Growth, Dec. 9, 2019, https://equitablegrowth.org/eight-graphs-that-tell-the-story-of-u-s-eco…. The titles of the graphs are:

• The Top 10%’s Share of All Income Has Risen by 6 Points Since 1963

• The Majority of All Wealth in the U.S. Is Controlled by the Top 10%

• Inequality Has Increased More Rapidly in the U.S. than Europe

• At Similar Levels of Education, Women, and Especially Women of Color, Earn Less

• Growth Alone Isn’t Enough: When Inequality Is High, Mobility Suffers

• The Great Gatsby Curve: High Inequality Tends to Mean Low Mobility

• College Completion Gaps by Income Persist and Grow

• The Life Expectancy Gap in the U.S. Is Rising.

On political polarization, see, e.g., Kevin M. Kruse and Julian E. Zelizer, Fault Lines: A History of the United States Since 1974 (New York: W. W. Norton & Co., 2019); Julie E. Cohen, Between Truth and Power: The Legal Constructions of Information Capitalism (New York: Oxford University Press, 2019), 86–89; Yochai Benkler, Robert Faris, and Hal Roberts, Network Propaganda: Manipulation, Disinformation, and Radicalization in American Politics (New York: Oxford University Press, 2018).

17. See Walter Benjamin, “The Work of Art in the Age of Mechanical Reproduction” in Illuminations: Essays and Reflections. (New York: Harcourt, Brace, Jovanovich, 1968): 217–62.

18. In my previous book, The Eureka Myth, I show empirically through qualitative interview research with authors and inventors in diverse fields how the grand incentive narrative is today overstated and incomplete to the point of being false. See Jessica Silbey, The Eureka Myth: Creators, Innovators, and Everyday Intellectual Property (Stanford, CA: Stanford University Press, 2015). On the phrase “grand incentive narrative,” see Simone A. Rose, “The Supreme Court and Patents: Moving Toward a Postmodern Vision of ‘Progress’?,” Fordham Intellectual Property Media and Entertainment Law Journal 23 (2013): 1197–1219. See also Margaret Chon, “Postmodern ‘Progress’: Reconsidering the Copyright and Patent Power,” DePaul Law Review 43 (1993): 97–146, at 104, 124, discussing “grant narratives such as ‘Progress’” and “delusionary grand narratives of the Enlightenment.”

19. See note Benjamin, “Work of Art in the Age of Mechanical Reproduction.” See also Tony Judt, “What Is Living and What Is Dead in Social Democracy?”

20. For early work on this topic to which I am indebted, see Margaret Chon, “Intellectual Property and the Development Divide,” Cardozo Law Review 27 (2006): 2821–2912; Margaret Chon, “Intellectual Property Equality,” Seattle Journal for Social Justice 9 (2010): 259–73; and Chon, “Postmodern ‘Progress.’” See also Jessica Silbey, “Progress Evaluated: A Qualitative Analysis of ‘Promoting Progress’ through IP,” in The SAGE Handbook of Intellectual Property, ed. Debora Halbert and Matthew David (London: SAGE, 2014). On the promotion of progress as a structural limitation on Congress’s power, see Jeanne C. Fromer, “The Intellectual Property Clause’s External Limitations,” Duke Law Journal 61, no. 7 (2012): 1329–1414; and Dotan Oliar, “Making Sense of the Intellectual Property Clause: Promotion of Progress as a Limitation on Congress’s Intellectual Property Power,” Georgetown Law Journal 95 (2006): 1771–1842. See also Thomas B. Nachbar, “Intellectual Property and Constitutional Norms,” Columbia Law Review 104 (2004): 272–362, which argued that the “promote the progress” language is merely preambulatory; and Edward C. Walterscheid, “To Promote the Progress of Science and Useful Arts: The Anatomy of a Congressional Power,” IDEA 43, no. 1 (2002): 1–56, which argued that the clause limits Congress’s power to the “promotion of progress” (but fails to define the term). On the sparse history and contemporary manifestations of the progress clause, see Ned Snow, “The Meaning of Science in the Copyright Clause,” Brigham Young University Law Review 2 (2013): 259–318; Malla Pollack, “What Is Congress Supposed to Promote? Defining ‘Progress’ in Article 1, Section 8, Clause 8 of the United States Constitution, or Introducing the Progress Clause,” Nebraska Law Review 80, no. 4 (2001): 754–815; Paul Heald and Suzanna Sherry, “Implied Limits on the Legislative Power: The Intellectual Property Clause as an Absolute Constraint on Congress,” University Illinois Law Review 4 (2000): 1119–60; Bruce W. Bugbee, Genesis of American Patent and Copyright Law (Washington, D.C.: Public Affairs Press, 1967).

21. Barton Beebe, “Bleistein, the Problem of Aesthetic Progress, and the Making of America Copyright Law,” Columbia Law Review 117, no. 2 (2017): 319–97; Alfred Yen, “Copyright Opinions and Aesthetic Theory,” Southern California Law Review 71 (1998): 247–302.

22. Snow, “Meaning of Science in the Copyright Clause,” quoting James Madison and various contemporary writings. See also Malia Pollack, “Dealing with Old Father William, or Moving from Constitutional Text to Constitutional Doctrine: Progress Clause Review of the Copyright Term Extension Act,” Loyola Los Angeles Law Review 36 (2002): 376. “‘Science’ means ‘knowledge’ in an anachronistically broad sense.”

23. Edward C. Walterscheid, The Nature of the Intellectual Property Clause: A Study in Historical Perspective (New York: W. S. Hein & Company, 2002), 126. See also Beebe, “Bleistein.”

24. Beebe, “Bleistein.”

25. Beebe, “Bleistein.”