Olivia A. Gallucci

Essay written for RIT’s Fall 2021 Free & Open Source Culture (ENGL-450) course.

Introduction

Corporations’ failure to disclose product hazards and risky business practices endangered consumers throughout the nineteen hundreds. When combined with the lack of consumer support in the United States legal system, consumers’ medical and financial damages skyrocketed, causing widespread financial harm throughout America. After various human rights disasters, protests, and lobbying, the United States government passed laws to protect consumers from dangerous products and irresponsible business practices (Amadeo and Brock). These laws include the 1933 Glass Steagall Act, 1906 Pure Food and Drug Act, and 1972 Consumer Product Safety Act. Consumer protection laws revolutionized the American economy for consumers and companies. They collectively ensured companies tested products for safety and effectiveness to avoid lawsuits and protect families from destroying their health and finances. Some laws like the 1933 National Industrial Recovery Act assured fair labor and safety practices—even if employees consented to the abuse—for capitalistic gain (Amadeo and Boyle).

Although many consumer protection laws have been modified or repealed, many continue protecting American consumers. However, the laws are outdated and affected by corruption. The laws ignore the implications of how copyright and restrictive creative licenses affect Americans’ safety, especially with concerns to safety, effectiveness, and innovation. 

What is corruption?

In Free Culture: The Nature and Future of Creativity by Lawrence Lessig, the legal boundaries of piracy and property are explored throughout history and how political corruption affects the modern creative benefits in America. Lessig explains that although the Internet produced new creative possibilities, big media’s influence on the United States government to respond to these possibilities is destroying something very old: humans’ ability to create and grow from past ideas, technology, and innovation. He argues Americans allowed large corporations—those most threatened by copyright changes—”to use their power to change the law” and fundamental human nature because corporations “are among the most powerful players in our depressingly compromised process of making law” (Lessig 13). Lessig’s concept of corruption is nuanced, referring to corporation’s ability to influence laws surrounding creative freedoms Americans once possessed. Note that all references to corruption in this piece refer to Lessig’s conception of corruption.

Product Safety and Effectiveness

In terms of product safety and effectiveness, the 2021 Theranos fraud trial illustrates Lessig’s definition of corruption. If Theranos were open-source, Holmes could not have scammed companies like Walmart and Walgreens out of billions of dollars because they could have tested the product’s effectiveness (BBC World Service; Carreyrou). Theranos is not the only example of companies restricting access to product testing of buyers and investors. Almost all proprietary services and products lack a way for consumers to test claims of effectiveness, results, and development. This means that if a product hurts someone, Americans cannot prove companies’ wrongdoing if they cannot test their products, which gives companies an advantage in consumer lawsuits. In short, Americans cannot verify company claims—especially in nonphysical products like software’s effects on privacy and mental health—if they cannot test the product.

Ethics and Competition

Under Lessig’s notion of corruption, the counterargument to making technology and business practices open is that it takes away companies’ competitive advantage. Detractors often claim that proprietary products and business practices are what differentiate companies. As a result, products and practices cannot be publicly viewed, tested, or even fixed because that could result in losing revenue by someone copying or advancing products (Kim and Kitroeff; Randazzo; Mulvany and Waldman). Yet, for companies like Patagonia, System76, MySQL, and Gravity, this argument proves false. These companies generate revenue with open business, hardware, software, or development practices, which means companies can balance ethical business practices and profit. Furthermore, it means that the millions of dollars companies like Disney and John Deere spend on lobbying against the copyright and right to repair are most likely a way to increase profit margins rather than avoid pirating or lawsuits from consumers breaking products.

Personal Convenience

One argument Lessig does not consider is personal convenience, which should factor in his definition of corruption. Products by companies like Patagonia and System76 may be too expensive for some consumers, so consumers may purchase alternatives. Additionally, MySQL’s and Canonical’s source code is publicly available and legally copyable. Here, open business practices could theoretically lead to consumers creating businesses based on another company’s work without any modifications.

However, this has not happened. Furthermore, the public has not widely adopted creating personal computers, garments, and businesses or business practices based entirely on preexisting open products like MySQL and Gravity. In other words, money is just one of the factors at play. Time, desire, and convenience are other motives for why open products and procedures are not copied in industry or individually. Everyone knows how Patagonia makes its clothes, MySQL’s source code, and System76’s hardware configurations, yet nobody has built a business copying their material. This could be because most people cannot build ethical computers, businesses, or software; they lack time, money, knowledge, or desire. Additionally, many consumers respect these companies and want them to succeed on ethical pretenses.

Innovation and Creative Freedom

Another area affected by corruption is America’s ability to build on past works to produce new projects and ideas. For example, Walt Disney used fairy tales like Cinderella by Charles Perrault and Snow White by the Brothers Grimm to create childrens’ movies like Cinderella and Snow White and the Seven Dwarfs. These stories were openly copied to create new versions and displays of older stories. However, today’s creators lack the freedom to build on Disney’s work due to copyright extensions. In reference to when Walt Disney created Mickey Mouse:

The maximum copyright term was just fifty-six years. Because of interim changes, … Disney enjoyed a seventy-five-year monopoly for [his work. Disney received the benefits the] Constitution envisions: In exchange for a monopoly protected for fifty-six years, they created new work. But now these entities were using their power—expressed through the power of lobbyists’ money—to get another twenty-year dollop of monopoly… We have set up a system that assures that copyright terms will be repeatedly extended… the perfect storm for the public domain. Copyrights have not expired, and will not expire, so long as Congress is free to be bought to extend them again.

Lessig 221

In short, copyright, as it was originally intended, was to ensure that creators could profit off their work while including limits “to assure that copyright holders do not too heavily influence the development and distribution of our culture” (Lessig 221). However, modern copyright holders control American’s creative freedoms as long as copyright can be extended by Congress.

Modern Copyright Practices

Modifications to constitutional copyright law also restrict creators and buyers. Continuing the Disney example, Disney’s copyright can remove content if creators or buyers use clips, images, or concepts in Disney films. The 2021 YouTube copyright controversies demonstrate this concept. Here, YouTube banned creators for using clips, images, or sounds from Disney (and various other companies’) films. Before the copyright controversies, creators could use the same media under creative commons licensees and related laws.

Another example is the 1998 Video Pipeline lawsuit against Disney, where Disney restricted Video Pipeline’s ability to send trailers over the internet rather than tapes in the mail. Although Disney has the right to control its property, the video stores that legally sold Disney’s films also had the right to sell the films they purchased from Disney. Disney claimed that “the stores were allowed to sell the films and they were permitted to list the titles of the films they were selling, but they were not allowed to show clips of the films as a way of selling them without Disney’s permission” (Lessig 146).

In other words, modern creators cannot legally use Walt Disney’s version of fairy tales to create new stories as Walt Disney did due to copyright extensions pursued by corporations like Disney. Ultimately, Americans can no longer innovate with stories that are decades old that should have been available to the public domain.

In terms of creativity, innovation, and freedom, the United States law favors corporations. Americans need to consider who “freedom” applies to and what “freedom” represents. Although corporations employ citizens, they do not provide freedoms America utilized throughout history and increasingly restrict creators.

Conclusion

In conclusion, America lost creative freedom and product ownership. The question remaining is that although everyone is compliant with this corruption to some degree, is it worth the extra hours of free time to allow convenience to overtake safety, creative culture, humanity, and growth. Furthermore, how can Americans distribute the punishments amongst those who ignored copyright concerns, passing them down to us? Lastly, America needs to ask how Americans—of varying degrees of privilege—approach accountability for ignoring blatantly harmful practices.

Essay written for RIT’s Free & Open Source Culture (ENGL-450) course.

Further reading

If you enjoyed this post, checkout my other articles on open source software and HFOSS. I recommend my literature review of Defenders of Free Software in the Legal Sphere.

Works cited

Amadeo, Kimberly, and Michael Boyle. “New Deal Summary, Programs, Policies, and Its  Success: Four Surprising Ways the New Deal Affects You Today.” The Balance, 30 July 2020.

• illegalized child labor, established minimum wages, and restricted the working day to eight hours.

Amadeo, Kimberly, and Thomas J. Brock. “Glass Steagall Act of 1933, Its Purpose and Repeal: How This 1933 Law Would Have Prevented the Financial Crisis.” The Balance, 11 Nov. 2020.

BBC World Service. “Former Afghan president says he fled to avoid bloodshed.” Global News Podcast, BBC World Service, 8 Sept. 2021.

Carreyrou, John. “Theranos Cost Business and Government Leaders More Than $600 Million.” WSJ, 4 May 2018.

Kim, Victoria, and Natalie Kitroeff. “Behind a $13 Shirt, a $6-an-hour Worker.” www.latimes.com, 31 Aug. 2017.

Mulvany, Lydia, and Peter Waldman. “Farmers Fight John Deere Over Who Gets to Fix an $800,000 Tractor.” Bloomberg.com, 5 Mar. 2020.

Randazzo, Sara. “The Theranos Trial: Elizabeth Holmes, the Charges and What Else to Know.” WSJ, 31 Sept. 2021.

Lessig, Lawrence. Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. Penguin, 2004.

Wiens, Kyle, and Elizabeth Chamberlain. “John Deere Just Cost Farmers Their Right to Repair.” Wired, Condé Nast, 19 Sept. 2018.