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Free speech, innovation being stifled by litigation

By Dan Gillmor
Knight Ridder Newspapers

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The law may also help Apple Computer prevent customers of its music players from using the devices as they see fit, as opposed to the restrictive way Apple has ordained.

Apple is making not-so-veiled threats against RealNetworks, which has given iPod customers more choices in a fragmented marketplace.

And intellectual-property claims may chill one of the great contributions to this otherwise dismal political season.

The owner of publishing rights to Woody Guthrie's music says the brilliant "JibJab" animation of George W. Bush and John Kerry — set to the music of his classic folk song, "This Land is Your Land" — infringes on its rights.

The Schwarzenegger, Apple-RealNetworks and JibJab situations are only some the most recent examples of property rights run amok.

Someday, Congress and state legislatures may wake up to the broken system they've created, but in the meantime litigators are slapping down free speech and slowing innovation.

Let's look more closely at each.

• Schwarzenegger was an actor before becoming a politician, and California law gives celebrities enormous power to prevent other people from using their images without permission.

Late last week, a company that claims to hold "all publicity rights of Arnold Schwarzenegger" settled a legal dispute with an Ohio company that was making satiric dolls showing him holding a gun.

The company, which makes a collection of political "bobblehead" dolls, agreed that new dolls won't be holding the gun and that some of the revenues would go to a Schwarzenegger-approved charity.
 
That the doll maker had to settle at all was outrageous. Schwarzenegger is a politician. He's fair game or should be.

• Meanwhile, the late, great Woody Guthrie is surely spinning in his grave. Now, he would not be even slightly unhappy at the use of his immortal tune by the JibJab folks, whose online send-up (www.jibjab.com) of Bush and Kerry has become one of the most popular animations ever to hit the Web or any other medium.

No, Guthrie would be thrilled. He was a folk singer. Like all other folk singers, he borrowed from others to create his art, including "This Land is Your Land," which owes much to earlier works.

He wrote scathingly of people who steal more with fountain pens than guns. He would have loathed the people who abuse copyright so much today.

Guthrie wanted credit for what he wrote, but he had contempt for severe legal restrictions on what others might do with it.

The Museum of Musical Instruments (www.themomi.org/museum/Guthrie/index800.html) cites folk singer Pete Seeger's account of Guthrie's Depression-era job singing on the radio in Los Angeles, when he'd mail mimeographed songs to listeners. He wrote on one:

"This song is Copyrighted in U.S., under Seal of Copyright 154085, for a period of 28 years, and anybody caught singin' it without our permission, will be mighty good friends of ourn, cause we don't give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that's all we wanted to do."

So I'll bet Guthrie would be horrified — and angered — by the behavior of an outfit called the Richmond Organization, which controls the copyright to his music.

JibJab has gone to court in San Jose, asking for a ruling that it's engaging in protected speech. Let's hope for a quick victory.

• Let's also hope Apple sees the light before it does more than fulminate against RealNetworks.

The Seattle company reverse-engineered the iPod's copy-control system so customers could get music from Real's service, which competes with Apple's iTunes Music Store, and play them on the iPod.

Apple has suggested that it will rewrite its software to thwart Real's customer-friendly tweak. But Apple is in the unusual position of dominating a market — music downloads — and wants to keep it that way. Shades of Microsoft.

What we customers want is cross-platform compatibility: standards.

What the companies want is lock-in. They may win, using laws that prohibit innovation by preventing unauthorized plugging into products. In the end, though, they'll lock out people who insist on choice.

Dan Gillmor is a columnist for the San Jose Mercury News