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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


This book is essential reading for anyone who ever had an idea or created anything. Whether you’re 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, McLeod’s 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-Warner’s 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 don’t 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 Guthrie’s 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.



Updated 1st October 2007

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