Houston, We Have A Public Domain Problem

I received a bogus copyright takedown notice for using public domain audio on SoundCloud yesterday. The sound in question—the famous “Houston, we have a problem” snippet of the Apollo 13 mission—is incontrovertibly available to all, for any use, without copyright restrictions. The fact that it’s been yanked from my SoundCloud page, though, is a sad demonstration of how completely many online services have swallowed the fallacy that “unauthorized” means “unacceptable.”

It’s a dangerous myth, that we should all need permission any time we’re getting value out of a piece of culture. And it’s one that gets entrenched deeper each time we accept the idea that we’re able to make use of a work because a copyright owner is or would be OK with it, and not just because we have a basic right to participate in culture that is more fundamental than anybody else’s desire to maximize profits.

So I was disheartened when I got the takedown, and even more so when I looked through the guidelines for disputing an automatic match and found that I faced a presumption of guilt. There’s no option for “The work in question is not restricted by copyright,” or even “I am making a fair use.” Instead, the “valid reasons” offered are variations on the theme that I actually have permission—not that I never needed it in the first place.

I am the primary copyright activist at the Electronic Frontier Foundation, a digital civil liberties organization. I witness takedown abuse every day. My case is not an anomaly and is, in fact, pretty tame: this was almost certainly a greedy mistake by somebody who knows there are unlikely to be negative consequences. It’s what’s known as copyfraud, but it’s not somebody deliberately targeting my upload and misusing the copyright system as the handiest tool to take it down. (We see plenty of that, too.)

The real goofy bit is that before I started at EFF, I worked at SoundCloud. I actually uploaded this Apollo 13 clip, along with sounds from Apollo 11 and others, as part of a project to attract more historic and archival audio and really celebrate the public domain as a rich source of sounds.

But it’s true, our public domain has taken a beating. Through acts of Congress and unfortunate outcomes in Supreme Court cases, the steady expansion of our cultural commons has been largely replaced by stagnation.

There are, of course, a few ways a work can end up in the public domain. Works of the US government are immediately and always free of copyright restrictions. Since that category includes recordings by NASA, my upload is a simple case. Beyond that, the public domain was once the default in the United States: unless you put a proper notice with a copyright sign and the year, and sent in a registration form and fee, your essay or film or recording or picture would never carry copyright restrictions at all.

Even if works did get copyright status, the terms once granted would eventually expire. The result was a rich pool of common resources.

Over the last forty years or so that has changed. For one thing, nearly all works are granted copyright restrictions automatically. As soon as a minimally original work of authorship is recorded—“fixed in a tangible medium,” is how the law puts it—it’s covered by copyright. On top of that, a 1998 law extended copyright terms for 20 years retroactively, meaning that no copyright on a published work has expired in the US for some 16 years. We’ve suffered a long drought, marked solemnly each January 1st—Public Domain Day—by thinking about what we could have had.

And with that quantitative shift, there’s been a qualitative one, too. In decades past, the cultural treasures of each generation would be the common property of the next. Now we are limited to cultural works that date back nearly a full century; it’s not our fathers’ and mothers’ culture, it’s our distant ancestors’.

With that declining relevance, and the rising uncertainty caused by innocent mistakes and copyfraud, the public domain starts to look less like an inviting common meadow and more like a foreboding possible minefield. So here and there, in dribs and drabs, the public domain gets edited out of the picture.

We’ve lost a valuable chunk of the public domain, then, even without the complicity of online services. But those sites feel pressure, too: the minimum they must do to stay inside copyright “safe harbors” is prescribed by law, and many go further in efforts to be on good terms with media companies. That looks like overzealous algorithmic copyright enforcement, like the automated system that caught my upload after some partner presumably laid claim to it (and who knows how much else).

Even as these companies and services strive to be massively accessible public spaces—SoundCloud bills itself as “the world’s leading social sound platform where anyone can create sounds and share them everywhere”—they reflect mostly corporate priorities, because they face far too little pressure from the other side. That is, from users who wish to participate in culture, and who don’t want to be treated like criminals.

But that doesn’t have to be the case. I refuse to let this be an eulogy for the public domain. I choose to engage with it as an essential component of a participatory culture. It’s only if we forget how to use it that we could see it wither away. Even with its rough recent history, it deserves our attention, and our support.

I’m sure my particular uploading situation will work out fine. SoundCloud is full of smart people, and this automated match will get cleared up in days, if not hours. But that’s ultimately an unsatisfying conclusion. The real problem is that we’ve bought into the rhetoric and the arguments that an unauthorized use is an unacceptable use. As a result our online services have looked less like the public platforms we want, and more like policed spaces where any activity can be interrogated for its papers, please.

Parker Higgins is an activist at the Electronic Frontier Foundation. Along with Sarah Jeong he writes Five Useful Articles, a weekly newsletter about IP issues that is much funnier than you’d expect.