Intellectual Property Law: Copyrights or Copy Wrongs?
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WPE Reading Set A: Intellectual Property Law: Copyright or Copy Wrong?
January 4, 2010 ††Campus Center Ballroom, 3rd Floor, at 10:00 a.m.
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Timed†Essay Exam: Reading Set A
Intellectual Property Law: Copyrights or Copy Wrongs?
4 January 2010 at 10:00 a.m. in the Campus Center Ballroom, 3rd Floor
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WPE Reading Set A: Intellectual Property Law: Copyright or Copy Wrong?
January 4, 2010 ††Campus Center Ballroom, 3rd Floor, at 10:00 a.m.
University of Massachusetts/Boston
Colleges of Liberal Arts, Science and Mathematics, and Nursing and Health Sciences
Writing Proficiency Evaluation
Reading Set A timed†essay exam, Campus Center Ballroom (3rd floor)
4 January 2010 at 10:00 a.m.
Reading Set A: Intellectual Property Law: Copyrights or Copy Wrongs?
1. Stearns, Laurie. “Copy Wrong: Plagiarism, Process, Property, and the Law.” California
Law Review 80.2 (Mar. 1992): 513†553.
2. Lessig, Laurence. “Introduction” and “Constraining Innovators.” Free Culture.
http://free†culture.org/get†it
3. Boynton, Robert S. “The Tyranny of Copyright?”
http://www.nytimes.com/2004/01/25magazine/25COPYRIGHT.html
Articles reprinted by permission
Notes:
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• “Copy Wrong: Plagiarism, Process, Property, and the Law,” by Laurie Stearns
People commonly think of plagiarism†the intentional appropriation of the creative output or
scholarship of another without attribution†as being “against the law.” But the law and plagiarism
intersect only imperfectly. Plagiarism is not a legal term, and though an instance of plagiarism might
seem to be the quintessential act of wrongful copying, it does not necessarily constitute a violation of
copyright law.
Plagiarism dwells at the meeting place of two great human endeavors: literature and the law. It
is the source of legal and critical disputes, an example of “creativity gone bad.” Both the law and the
way we define creativity can shape the way we understand plagiarism, and both the way we understand
plagiarism and the way we define creativity can shape the law.
[…] I have chosen to [discuss plagiarism in the setting of the written word], drawing my
examples from the literary and academic worlds, so as not to become entangled in constitutional
definitions of an “author” or a “writing,” or in statutory definitions of a “work of authorship,” that would
obscure the primary question: What is the role of copyright law in protecting creativity and scholarship?
My intention is not to simplify the relationship between plagiarism and the law, but rather to
explore its complexity. My approach is to provide an overview of plagiarism in literature, to examine and
analyze the reasons for the difference between plagiarism and copyright infringement, and to explore
possible directions for the future development of intellectual†property law. […]
1.) PLAGIARISM AND THE CREATIVE PROCESS
In their ongoing effort to set themselves apart from other living creatures, human beings have
singled out the creative process as a uniquely human characteristic. Whether viewed as a spiritual trait
or a physiological one, creativity†in literature, the visual arts, music, philosophy, or science†can inspire
admiration and awe. The creative process is one of change, both for the creators, who while
transforming their raw materials into new, finished works find themselves transformed, and for their
audiences, who in seeking knowledge and enlightenment assimilate and transform those works as part
of their own creative process.
Creation, of course, is not an absolute. To claim to have created a work, one need not have
made something from nothing. In the words of Mary Shelley: “Invention, it must be humbly admitted,
does not consist in creating out of void, but out of chaos.” Whether creation is perhaps the act of
assembling something that did not formerly exist, or of revealing something already there, or even of
hiding something previously disclosed, it is in any case an act situated in time, taking into account what
has gone before.
Some thinkers have conceived of art as essentially imitative. Stories that depict common
experiences or illuminate life’s dilemmas are told and retold in myth, poetry, and drama. Creators draw
upon the works of their predecessors and offer up their own works for the use and enjoyment of others.
Given this interdependence of human creative efforts, requirements of complete originality or novelty
become difficult, if not impossible, to impose in evaluating the success or value of a literary work. The
idea of plagiarism is thus something of a paradox. Why condemn an author for borrowing from another
if such borrowing is inevitable and even fundamental to the creative process? The answer lies in the kind
of borrowing an author does. The essence of the modem understanding of plagiarism is failure of
process in both the purely literary and the scholarly settings.
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Plagiarism means intentionally taking the literary property of another without attribution and
passing it off as one’s own, having failed to add anything of value to the copied material and having
reaped from its use an unearned benefit. In a sense, plagiarism (presenting another’s work as one’s
own) is the inverse of forgery (presenting one’s own work as another’s). The word “plagiarize” comes
from the Latin plagiarius, originally meaning a kidnapper and then used to refer to a literary thief. The
image of “kidnapping” a literary work does not precisely fit with plagiarism, which involves more than
just taking the words of another; it also involves putting those words to work for the plagiarist’s own
ends. The image is more nearly that of abduction into servitude, and, in fact, plagiarius meant both a
kidnapper in general and a kidnapper of a slave in particular.
The word’s ancient origin indicates that borrowing in literature and scholarship has concerned
authors for centuries. [… “F]aulty” borrowings†“the secret, the perverse, the servile, the superficial”
†were denounced. The parameters of the modern definition of plagiarism emerged during the late
eighteenth century out of the Romantic emphasis on individualism and the conviction that writers are
obligated to make unique contributions to any material they borrow, turning it into something that is
their own. The only legitimate borrowing, therefore, is that which proceeds to transform the original
material by means of the borrower’s creative process.
In contemporary literature, the forbidden appropriation of arrangements of words is not the
same as the allowable borrowing of themes, structures, observations, or life experiences, and modern
writers observe a code of behavior that differentiates the acceptable from the unacceptable in this
respect. […]
In the academic world, plagiarism arises most often as the unattributed use of material that,
were it properly credited, would not be considered plagiaristic at all. In forms of writing in which citation
to supporting authorities is customary, the scholarly plagiarist’s offense consists less in omitting to
transform the borrowed material than in omitting to identify its source. Academia takes plagiarism
seriously: “Plagiarism is an academic capital offense, punishable by academic death for student or
faculty.” Academic authorities refer cases of plagiarism to the disciplinary bodies of either the school or
the appropriate professional organization.
People despise plagiarism not because it results in inferior works †by drawing from others
plagiarists may produce better works than they could by themselves †but because it is a form of
cheating that allows the plagiarist an unearned benefit. This benefit could be either tangible, as when
the work is of commercial value or fulfills a requirement for an academic degree or tenure, or intangible,
as when it adds to the plagiarist’s personal or professional reputation. The form that the plagiarist’s
cheating takes †claiming credit for someone else’s achievements †is particularly abhorrent. Individuals
who do not hesitate to photocopy copyrighted books or videotape copyrighted broadcasts would never
dream of representing themselves as the authors of the books or tapes. […]
As popularly understood, then, plagiarism is a failure of the creative process, not a flaw in its
result. Although imitation is an inevitable component of creation, plagiarists pass beyond the
boundaries of acceptable imitation by copying from the work of others without improving upon the
copied material or fully assimilating it into their own work; by failing to attribute the copied material to
its actual author; and by intending to deceive others about its origin. Society’s disapproval is directed
toward the plagiarist and the process of plagiarism, not toward the result: if Dr. Frankenstein were
viewed as a plagiarist who stitched together a creature made of parts stolen from other entities, it
would be Dr. Frankenstein whom society condemned, not the monster he animated. Moreover, society
disapproves of the benefits that can accrue to plagiarists if their deception is successful †if, for example,
Dr. Frankenstein were to claim a prestigious award for bringing a creature into being without
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acknowledging that he had made the creature from preexisting components. Such societal disapproval
seeks an outlet in the law. But the law, with its attention focused on different concerns, provides only an
imperfect means of addressing the problem of plagiarism.
2) PLAGIARISM AND COPYRIGHT INFRINGEMENT
Even without being able to articulate a precise definition, many people find it easy to recognize
plagiarism. [… However, ] the law […] has had a difficult time recognizing and dealing with plagiarism.
The term itself is not a legal one; and though sometimes used in opinions, it has not been judicially
explained or defined since 1944. Hardly a single modem law book contains an entry for plagiarism in its
index. The lone area in which the term has developed some legal currency is in musical†copyright
infringement. There, however, plagiarism simply means unauthorized copying, a strict†liability offense
that cannot be cured by crediting the original composer. In fact, most courts using the term, writing
about a range of subjects from patents to trademarks, employ it imprecisely as the generic equivalent of
copying. One bewildered jury, uncertain exactly what the counsel and the judge meant by “plagiarism”
and other terminology used in a trial, sent the bailiff out for a dictionary during its deliberations.
By loosely redefining plagiarism to mean any form of unauthorized copying, whether attributed
or not and whether intentional or not, the law has molded the meaning of the term to fit its own
framework. The framework in which the law has found plagiarism to be most conveniently located is
intellectual†property law †a specialty that is itself divided by subject matter into discrete subspecialties:
copyright, patent, trademark, trade secrets, and unfair competition. For various reasons, the unfaircompetition
branch of intellectual†property law has proved unsatisfactory for many plagiarism cases.
The occasional judicial attempts to treat plagiarism as a common†law tort remain aberrations.
Cases of literary plagiarism are most often handled as cases of copyright infringement. Copyright
law aims both to encourage individual creativity and to encourage the dissemination of the results of
the creative effort to the public. At times, these aims are in opposition, as when granting authors the
exclusive right to their works in order to give them the financial incentive to create has the effect of
preventing others from improving or adapting those works for the benefit of society. The current
Copyright Act of 1976, like its predecessors, attempts to accommodate both aims by affording
protection for only a limited time and by allowing for exceptions that permit certain uses of the
copyrighted work by others.
At present, copyright law protects “original works of authorship fixed in any tangible medium of
expression” by giving the copyright owner the exclusive right to reproduce the work, to prepare
derivative works based on it, to distribute copies of it, and to perform or display it publicly. Copyright
ownership “vests initially in the author or authors of the work” and may subsequently be transferred.
Violation of any of the exclusive rights is termed “infringement,” and the legal or beneficial owner of an
exclusive right has standing to sue for its infringement. Remedies for infringement include injunctive
relief, impoundment or destruction of the infringing articles, and a monetary award of actual damages
and profits, statutory damages, and costs and attorney’s fees.
A practical inquiry focusing on the result of copying necessarily precedes a finding of copyright
infringement. The court examines the allegedly infringing work to determine, first, whether it was
copied from the allegedly infringed work and not independently created; and second, if it was copied,
whether the copying was wrongful. The plaintiff can prove copying by presenting both evidence of
similarity between the two works (including expert testimony) and evidence of the defendant’s access
to the plaintiff’s work. The two works need not be identical, but must be substantially similar; where the
degree of similarity is great enough, access can be presumed rather than proven. For the copying to be
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adjudged wrongful, the ordinary lay observer rather than the expert must conclude that there has been
improper appropriation of the copyrighted material.
Plagiarism is not necessarily copyright infringement, nor is copyright infringement necessarily
plagiarism. The two concepts diverge in respect to three main aspects of the offense: copying,
attribution, and intent. In some ways, the concept of plagiarism is broader than infringement, in that it
can include the copying of ideas, or of expression not protected by copyright, that would not constitute
infringement, and it can include the copying of small amounts of material that copyright law would
disregard. In other ways the concept of infringement is the broader one, in that it can include both
properly attributed copying and unintentional copying that would be excused from being called
plagiarism.
The divergence between plagiarism’s popular definition and copyright’s statutory framework
suggests an essential contradiction between what is at stake in plagiarism — the creative process †and
what is at stake in copyright infringement †the creative result. Plagiarism raises questions about aspects
of the relationship between copying and creativity: originality and authorship; attribution; carelessness
and intent; amounts, types, and sources of copying; and the harm to the plagiarist, the victim, and
society. Despite its concern with wrongful copying, copyright law cannot answer all these questions. By
emphasizing result, the law accommodates certain practical constraints of civil litigation, such as the
requirements of an identifiable plaintiff and a showing of measurable harm, but it turns its attention
away from the creative process.
3) LEGAL METAPHORS: INTELLECTUAL PROPERTY AND THE CREATIVE CONTRACT
[…]The law’s categorization of written material as property springs from the belief that the “law
of nature” entitles human beings to reap the fruits of their labors. According to Blackstone:
When a man by the exertion of his rational powers has produced an original work, he
has clearly a right to dispose of that identical work as he pleases, and any attempt to
take it from him, or vary the disposition he has made of it, is an invasion of his right of
property.
Thus, an essential attribute of property in the Anglo†American legal system is exclusivity of
ownership. Property is “[t]hat which is peculiar or proper to any person; that which belongs exclusively
to one.” The owner of property has “the unrestricted and exclusive right to a thing; the right to dispose
of a thing in every legal way, to possess it, to use it, and to exclude everyone else from interfering with
it.” Certain kinds of property, such as natural resources, are not subject to exclusive use, but these are
exceptions to the general rule of exclusivity.
If words are property, they are an odd form of property. At any instant, they are finite in
number and yet can be freely and infinitely invented or duplicated. They cannot be marked with the
insignia of ownership. When first invented they are subject to exclusive possession before being written
or uttered, yet such exclusive possession leaves them incapable of fulfilling their communicative
function. They can be initially withheld from others, but once transmitted, they can never be retrieved.
They are used to convey meanings that have developed over centuries but can be instantly shifted in
fresh and surprising ways. Themselves composed of alphabetical symbols, they are of little value when
separated from the larger matrix of literature in which they are the symbols.
Courts and legal scholars have long recognized that literary property differs from other forms of
property. Justice Holmes remarked upon the unusual qualities of this variety of intangible property:
The notion of property starts, I suppose, from confirmed possession of a tangible object
and consists in the right to exclude others from interference with the more or less free
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doing with it as one wills. But in copyright property has reached a more abstract
expression. The right to exclude is not directed to an object in possession or owned, but
is in vacuo, so to speak. […]
Judge Seabury noted that the purchaser of literary property has more circumscribed abilities to
use it than does the purchaser of other kinds of property:
Even the matter of fact attitude of the law does not require us to consider the sale of
the rights to a literary production in the same way that we would consider the sale of a
barrel of pork. ... While an author may write to earn his living and may sell his literary
productions, yet the purchaser, in the absence of a contract which permits him so to do,
cannot make as free a use of it as he could of the pork which he purchased.
Nevertheless, such judicial discomfort has not interfered with the law’s readiness to treat what
it calls “intellectual property” as it treats other forms of property. Copyright law has duplicated the
protection provided by traditional property doctrines by setting statutory boundaries similar to the
physical boundaries of tangible property and by formulating exclusive rights of ownership, such as the
right to exclude, to use, and to transfer. […]
But authors also have noneconomic interests to which the notion of intellectual property
corresponds less well. People who make an illuminating discovery, write a profound and beautiful essay,
or invent a trenchant epigram may want less to own their creations than to receive credit for them.
Ownership would give them the ability to withhold their contributions from others, but what most
authors want is to communicate them. Intellectual†property law does not provide a useful framework to
govern this communication or to ensure that creators receive full credit for their creations when the
communication occurs.
The law’s choice of the property framework for words was not an inevitable one. As first†year
law students learn, the law encompasses a variety of doctrinal areas, each with its own terminology,
lines of cases, rationales, and expressed values. Some doctrines, such as contracts, deal largely with
planned interactions between people; others, such as torts, deal largely with interactions that are
unplanned; still others, such as property, deal largely with the objects of those interactions.
Despite their differences, all legal doctrines share their identity as metaphors. They reflect
various ways of seeing the world, each way incomplete by itself but overlapping with and
complementary to the others. […] The metaphor of intellectual property is capable of distorting the
law’s analysis of human creativity. When we talk carelessly about intellectual property, we reduce a
voluminous, diverse mixture of stray thoughts, dogged research efforts, fragmentary phrases, epics,
stunning insights, and blind alleys to mere commodities. Property is thought of as being subject to
exclusive ownership, over and over, in sequence. But each creative act takes place within a web of
contributions from a community of creators, a web that spans both time and space. The property
metaphor is misleading for words because words are meant to be shared, not possessed. Words — as
well as music and the visual and performing arts — are a medium of communication. As such, they are
subject to rejection, misunderstanding, or distortion during their passage from creator to audience, as
well as to recognition, appreciation, or improvement. What they are not subject to is ownership.
To improve our legal metaphor we must look beyond the idea of property as something we
possess to the larger legal context within which property exists. Property is more than an aggregation of
separate chains of ownership. It is a network of relationships, constantly realigned and readjusted
through transactions that the law understands as contracts. The contract metaphor adds to the
intellectual†property metaphor because it focuses as much on the process of the transaction as on the
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result. It assumes the existence of dealings between people, unlike the property metaphor, which
assumes the existence of a bundle of rights that an owner holds against others. Contract is a meeting of
minds, not a placing of boundaries. […]
4) ALTERNATIVES
[…W]e can strive to make the law more true to the creative process. Copyright law should open
itself to a broader way of understanding words. We have seen that copyright law does not prohibit all
copying, including some varieties of plagiarism. Copyright infringement fails to correspond to plagiarism
because there is more than one way to view words. In copyright law, words are property, the result of
the creative process. In plagiarism, words are part of the process itself, and the process is of both
creation and communication. Ultimately, these two concepts — process and result — are inseparable.
[…]
By recognizing that books are more than products, and that words are more than property,
courts can be more sophisticated in their approach to creative disputes than they are at present. At first
glance, the legal definition of originality would appear to incorporate an understanding of the web†like
complexity of the creative process by excluding “novelty” as a relevant attribute. Copyright law insists
that “originality” means merely that a work “owes its origin” to the creator; in other words, it is the
result of its author’s labors, but it need not be novel. Courts steadfastly refuse to assess a work’s novelty
or intrinsic merit. Indeed, with its emphasis on precedent, the law is predisposed to regard the lack of
novelty as a virtue.
Yet the concept of novelty constantly recurs in copyright law. “Original, as the term is used in
copyright, means only that the work was independently created by the author (as opposed to copied
from other works), and that it possesses at least some minimal degree of creativity. Though the meaning
of “creativity” in this context is hard to specify, novelty is at least one of its components. The court that
found creativity to be lacking in the design of a plastic corsage remarked that the “degree of creativity
necessary to define objects as works of art is not supplied through innovations which are solely
utilitarian or mechanical,” implying that non†utilitarian or non†mechanical innovations could have
evidenced sufficient creativity.
Thus, on one hand, the law denies the relevance of novelty; on the other hand, the law
nonetheless takes note of novelty by qualifying the requirement of “originality” as a condition of
copyright protection with the requirement of “creativity,” which includes “novelty.” This qualification
once again shifts the focus of legal inquiry from process to result. […]
The law also assumes that it can separate ideas and facts from their expression. It regards facts
as having an objective existence distinct from the existence of the human beings who discern them.
Recently the Supreme Court declared, “The distinction is one between creation and discovery: the first
person to find and report a particular fact has not created the fact; he or she has merely discovered its
existence.” […]
The law need not cling to simplifications about the nature of originality and the nature of truth,
drawing endless fine distinctions between different kinds of creative achievements and forgetting that
copyright law, like all law, is about people. By embracing a new metaphor, the law can acknowledge that
intellectual property does not exist in isolation but is brought into being by creators who adapt and
assimilate the work of others. The contract metaphor can supplement the property metaphor without
replacing it; contract law furnishes a guide for evaluating the way in which creators create, in the same
way that property law furnishes a guide for evaluating what creators create.
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Applying legal rules to creative efforts is a delicate task, however, no matter how enlightened
the rules might be, for what the law protects it also controls. The premise of intellectual†property law is
the idea that creativity should be encouraged and knowledge sought. In actuality, we have sometimes
used the law to suppress creativity and knowledge. Along with admiration and awe, creativity can also
make us feel envy or fear, prompting us to attack people such as Galileo for disputing the word of God
or James Joyce for saying the unspeakable.
We should not turn hastily to the law, expecting it to be more consistent or more wise than we
are. Law has its limits and cannot be relied on to provide a simple solution to every problem. […] Given
that our opinions about plagiarism are contradictory — sometimes we find it difficult to forgive, at other
times we find it difficult to condemn […]
A suitable forum for dealing with plagiarism may thus lie outside the legal system. After all,
plagiarism is just one of the creative risks that people take, and the means of reducing these risks are
not to be found in law. Through the very act of creation we risk the inevitable imperfections that
intervene between thought and articulation. Through sharing our creations with others we risk being
misquoted or misunderstood. Through the process of publishing our creations in order to make them
accessible to others we risk yielding to alteration that leaves us feeling that our work is no longer our
own. […]
Aided by our understanding of copyright law, we can seek alternative ways to deal with the
problem of plagiarism. Creators can seek help from one another, individually or collectively. Some
professional groups, such as the Authors Guild or the National Writers Union, are active in support of
authors’ rights and in devising accessible procedures through which writers can resolve their grievances.
Academic groups, such as the American Historical Association, maintain sanctioning procedures. The
pressure of public opinion may also be brought to bear against offenders, even in the absence of any
possibility of sanction, when people who become aware of plagiarism refuse to keep silent.
Aided by our understanding of plagiarism, we can continue to work toward a more just law of
creativity. The law is itself a product of the human creative process†shaped by centuries of tradition,
renewed by the infusion of the new and the rediscovery of the old, continually rethought, reanalyzed,
and reconstructed, as powerful and moving as any other work of literature. We can mold it to our
needs, neither making valid actions too difficult to sustain nor encouraging excessive literary
litigiousness. In so doing, we should not look to faulty metaphors to resolve our disputes. We must not
rely on catchphrases like “intellectual property” to simplify a problem †instead, we should try to see the
problem in its complexity and trust ourselves to reach a just solution. As we try to facilitate and
encourage the creative process, whether through the law or outside it, we must continually work to
accommodate both process and result, both creator and audience, both property and contract, both
ownership and communication, both simplicity and complexity, both flexibility and consistency, both
metaphor and reality, and both creativity and the law.
• “Introduction,” From Free Culture, by Laurence Lessig
[…] I argue in the pages that follow, that […] what is happening in our culture today is [that corporations
are using the law to protect themselves against competition]. These modern†day equivalents of the
early twentieth†century radio or nineteenth†century railroads are using their power to get the law to
protect them against this new, more efficient, more vibrant technology for building culture. They are
succeeding in their plan to remake the Internet before the Internet remakes them.
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It doesn’t seem this way to many. The battles over copyright and the Internet seem remote to
most. To the few who follow them, they seem mainly about a much simpler brace of questions—
whether “piracy” will be permitted, and whether “property” will be protected. The “war” that has been
waged against the technologies of the Internet — what Motion Picture Association of America (MPAA)
president Jack Valenti calls his “own terrorist war” — has been framed as a battle about the rule of law
and respect for property. To know which side to take in this war, most think that we need only decide
whether we’re for property or against it.
If those really were the choices, then I would be with Jack Valenti and the content industry. I,
too, am a believer in property, and especially in the importance of what Mr. Valenti nicely calls “creative
property.” I believe that “piracy” is wrong, and that the law, properly tuned, should punish “piracy,”
whether on or off the Internet.
But those simple beliefs mask a much more fundamental question and a much more dramatic
change. My fear is that unless we come to see this change, the war to rid the world of Internet “pirates”
will also rid our culture of values that have been integral to our tradition from the start.
These values built a tradition that, for at least the first 180 years of our Republic, guaranteed
creators the right to build freely upon their past, and protected creators and innovators from either
state or private control. The First Amendment protected creators against state control. And as Professor
Neil Netanel powerfully argues, copyright law, properly balanced, protected creators against private
control. Our tradition was thus neither Soviet nor the tradition of patrons. It instead carved out a wide
berth within which creators could cultivate and extend our culture.
Yet the law’s response to the Internet, when tied to changes in the technology of the Internet
itself, has massively increased the effective regulation of creativity in America. To build upon or critique
the culture around us one must ask, Oliver Twist – like, for permission first. Permission is, of course,
often granted — but it is not often granted to the critical or the independent. We have built a kind of
cultural nobility; those within the noble class live easily; those outside it don’t. But it is nobility of any
form that is alien to our tradition.
The story that follows is about this war. Is it not about the “centrality of technology” to ordinary
life. I don’t believe in gods, digital or otherwise. Nor is it an effort to demonize any individual or group,
for neither do I believe in a devil, corporate or otherwise. It is not a morality tale. Nor is it a call to jihad
against an industry.
It is instead an effort to understand a hopelessly destructive war inspired by the technologies of
the Internet but reaching far beyond its code. And by understanding this battle, it is an effort to map
peace. There is no good reason for the current struggle around Internet technologies to continue. There
will be great harm to our tradition and culture if it is allowed to continue unchecked. We must come to
understand the source of this war. We must resolve it soon.
[… T]his war is, in part, about “property.” The property of this war is not as tangible […]. Yet the
ideas surrounding this “property” are [obvious ...] Most of us take for granted the extraordinarily
powerful claims that the owners of “intellectual property” now assert. Most of us […] treat these claims
as obvious. And hence we […] object when a new technology interferes with this property. It is as plain
to us as it was to them that the new technologies of the Internet are “trespassing” upon legitimate
claims of “property.” It is as plain to us as it was to them that the law should intervene to stop this
trespass.
And thus, when geeks and technologists defend their Armstrong or Wright brothers technology,
most of us are simply unsympathetic. Common sense does not revolt. […C]ommon sense is on the side
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of the property owners in this war. Unlike the lucky Wright brothers, the Internet has not inspired a
revolution on its side.
My hope is to push this common sense along. I have become increasingly amazed by the power
of this idea of intellectual property and, more importantly, its power to disable critical thought by policy
makers and citizens. There has never been a time in our history when more of our “culture” was as
“owned” as it is now. And yet, there has never been a time when the concentration of power to control
the uses of culture has been as unquestioningly accepted as it is now.
The puzzle is, Why?
Is it because we have come to understand a truth about the value and importance of absolute
property over ideas and culture? Is it because we have discovered that our tradition of rejecting such an
absolute claim was wrong?
Or is it because the idea of absolute property over ideas and culture benefits the RCAs of our
time and fits our own unreflective intuitions?
Is the radical shift away from our tradition of free culture an instance of America correcting a
mistake from its past, as we did after a bloody war with slavery, and as we are slowly doing with
inequality? Or is the radical shift away from our tradition of free culture yet another example of a
political system captured by a few powerful special interests?
Does common sense lead to the extremes on this question because common sense actually
believes in these extremes? Or does common sense stand silent in the face of these extremes because,
[…] the more powerful side has ensured that it has the more powerful view?
[...] I believe it was right for common sense to revolt […] the extreme claims made today on
behalf of “intellectual property.” What the law demands today is increasingly as silly as a sheriff
arresting an airplane for trespass. But the consequences of this silliness will be much more profound.[…]
The […] core claim of this book [is] that while the Internet has indeed produced something
fantastic and new, our government, pushed by big media to respond to this “something new,” is
destroying something very old. Rather than understanding the changes the Internet might permit, and
rather than taking time to let “common sense” resolve how best to respond, we are allowing those most
threatened by the changes to use their power to change the law — and more importantly, to use their
power to change something fundamental about who we have always been.
We allow this, I believe, not because it is right, and not because most of us really believe in
these changes. We allow it because the interests most threatened are among the most powerful players
in our depressingly compromised process of making law. This book is the story of one more
consequence of this form of corruption — a consequence to which most of us remain oblivious.
• “Constraining Innovators,” from Free Culture, by Laurence Lessig
[…] The charge I’ve been making about the regulation of culture is the same charge free
marketers make about regulating markets. Everyone, of course, concedes that some regulation of
markets is necessary — at a minimum, we need rules of property and contract, and courts to enforce
both. Likewise, in this culture debate, everyone concedes that at least some framework of copyright is
also required. But both perspectives vehemently insist that just because some regulation is good, it
doesn’t follow that more regulation is better. And both perspectives are constantly attuned to the ways
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in which regulation simply enables the powerful industries of today to protect themselves against the
competitors of tomorrow.
This is the single most dramatic effect of the shift in regulatory strategy that I described in
chapter 10. The consequence of this massive threat of liability tied to the murky boundaries of copyright
law is that innovators who want to innovate in this space can safely innovate only if they have the signoff
from last generation’s dominant industries. That lesson has been taught through a series of cases
that were designed and executed to teach venture capitalists a lesson. That lesson— what former
Napster CEO Hank Barry calls a “nuclear pall” that has fallen over the Valley—has been learned.
Consider one example to make the point, a story whose beginning I told in The Future of Ideas
and which has progressed in a way that even I (pessimist extraordinaire) would never have predicted.
In 1997, Michael Roberts launched a company called MP3.com. MP3.com was keen to remake
the music business. Their goal was not just to facilitate new ways to get access to content. Their goal
was also to facilitate new ways to create content. Unlike the major labels, MP3.com offered creators a
venue to distribute their creativity, without demanding an exclusive engagement from the creators. To
make this system work, however, MP3.com needed a reliable way to recommend music to its users. The
idea behind this alternative was to leverage the revealed preferences of music listeners to recommend
new artists. If you like Lyle Lovett, you’re likely to enjoy Bonnie Raitt. And so on.
This idea required a simple way to gather data about user preferences. MP3.com came up with
an extraordinarily clever way to gather this preference data. In January 2000, the company launched a
service called my.mp3.com.Using software provided by MP3.com, a user would sign into an account and
then insert into her computer a CD. The software would identify the CD, and then give the user access to
that content. So, for example, if you inserted a CD by Jill Sobule, then wherever you were — at work or
at home — you could get access to that music once you signed into your account. The system was
therefore a kind of music†lockbox.
No doubt some could use this system to illegally copy content. But that opportunity existed with
or without MP3.com. The aim of the my.mp3.com service was to give users access to their own content,
and as a by†product, by seeing the content they already owned, to discover the kind of content the users
liked. To make this system function, however, MP3.com needed to copy 50,000 CDs to a server. (In
principle, it could have been the user who uploaded the music, but that would have taken a great deal
of time, and would have produced a product of questionable quality.) It therefore purchased 50,000 CDs
from a store, and started the process of making copies of those CDs. Again, it would not serve the
content from those copies to anyone except those who authenticated that they had a copy of the CD
they wanted to access. So while this was 50,000 copies, it was 50,000 copies directed at giving
customers something they had already bought.
Nine days after MP3.com launched its service, the five major labels, headed by the RIAA,
brought a lawsuit against MP3.com. MP3.com settled with four of the five. Nine months later, a federal
judge found MP3.com to have been guilty of willful infringement with respect to the fifth. Applying the
law as it is, the judge imposed a fine against MP3.com of $118 million. MP3.com then settled with the
remaining plaintiff, Vivendi Universal, paying over $54 million. Vivendi purchased MP3.com just about a
year later.
That part of the story I have told before. Now consider its conclusion.
After Vivendi purchased MP3.com, Vivendi turned around and filed a malpractice lawsuit against
the lawyers who had advised it that they had a good faith claim that the service they wanted to offer
would be considered legal under copyright law. This lawsuit alleged that it should have been obvious
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that the courts would find this behavior illegal; therefore, this lawsuit sought to punish any lawyer who
had dared to suggest that the law was less restrictive than the labels demanded.
The clear purpose of this lawsuit (which was settled for an unspecified amount shortly after the
story was no longer covered in the press) was to send an unequivocal message to lawyers advising
clients in this space: It is not just your clients who might suffer if the content industry directs its guns
against them. It is also you. So those of you who believe the law should be less restrictive should realize
that such a view of the law will cost you and your firm dearly.
This strategy is not just limited to the lawyers. In April 2003, Universal and EMI brought a lawsuit
against Hummer Winblad, the venture capital firm (VC) that had funded Napster at a certain stage of its
development, its cofounder (John Hummer), and general partner (Hank Barry). The claim here, as well,
was that the VC should have recognized the right of the content industry to control how the industry
should develop. They should be held personally liable for funding a company whose business turned out
to be beyond the law. Here again, the aim of the lawsuit is transparent: Any VC now recognizes that if
you fund a company whose business is not approved of by the dinosaurs, you are at risk not just in the
marketplace, but in the courtroom as well. Your investment buys you not only a company, it also buys
you a lawsuit. So extreme has the environment become that even car manufacturers are afraid of
technologies that touch content. In an article in Business 2.0, Rafe Needleman describes a discussion
with BMW: I asked why, with all the storage capacity and computer power in the car, there was no way
to play MP3 files. I was told that BMW engineers in Germany had rigged a new vehicle to play MP3s via
the car’s built†in sound system, but that the company’s marketing and legal departments weren’t
comfortable with pushing this forward for release stateside. Even today, no new cars are sold in the
United States with bona fide MP3 players. ...
This is the world of the mafia — filled with “your money or your life” offers, governed in the end
not by courts but by the threats that the law empowers copyright holders to exercise. It is a system that
will obviously and necessarily stifle new innovation. It is hard enough to start a company. It is impossibly
hard if that company is constantly threatened by litigation.
The point is not that businesses should have a right to start illegal enterprises. The point is the
definition of “illegal.” The law is a mess of uncertainty. We have no good way to know how it should
apply to new technologies. Yet by reversing our tradition of judicial deference, and by embracing the
astonishingly high penalties that copyright law imposes, that uncertainty now yields a reality which is far
more conservative than is right. If the law imposed the death penalty for parking tickets, we’d not only
have fewer parking tickets, we’d also have much less driving. The same principle applies to innovation. If
innovation is constantly checked by this uncertain and unlimited liability, we will have much less vibrant
innovation and much less creativity.
The point is directly parallel to the crunchy†lefty point about fair use. Whatever the “real” law is,
realism about the effect of law in both contexts is the same. This wildly punitive system of regulation
will systematically stifle creativity and innovation. It will protect some industries and some creators, but
it will harm industry and creativity generally. Free market and free culture depend upon vibrant
competition. Yet the effect of the law today is to stifle just this kind of competition. The effect is to
produce an overregulated culture, just as the effect of too much control in the market is to produce an
overregulated regulated market.
The building of a permission culture, rather than a free culture, is the first important way in
which the changes I have described will burden innovation. A permission culture means a lawyer’s
culture — a culture in which the ability to create requires a call to your lawyer. Again, I am not antilawyer,
at least when they’re kept in their proper place. I am certainly not anti†law. But our profession
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has lost the sense of its limits. And leaders in our profession have lost an appreciation of the high costs
that our profession imposes upon others. The inefficiency of the law is an embarrassment to our
tradition. And while I believe our profession should therefore do everything it can to make the law more
efficient, it should at least do everything it can to limit the reach of the law where the law is not doing
any good. The transaction costs buried within a permission culture are enough to bury a wide range of
creativity. Someone needs to do a lot of justifying to justify that result.
The uncertainty of the law is one burden on innovation. There is a second burden that operates
more directly. This is the effort by many in the content industry to use the law to directly regulate the
technology of the Internet so that it better protects their content.
The motivation for this response is obvious. The Internet enables the efficient spread of content.
That efficiency is a feature of the Internet’s design. But from the perspective of the content industry,
this feature is a “bug.” The efficient spread of content means that content distributors have a harder
time controlling the distribution of content. One obvious response to this efficiency is thus to make the
Internet less efficient. If the Internet enables “piracy,” then, this response says, we should break the
kneecaps of the Internet.
The examples of this form of legislation are many. At the urging of the content industry, some in
Congress have threatened legislation that would require computers to determine whether the content
they access is protected or not, and to disable the spread of protected content. Congress has already
launched proceedings to explore a mandatory “broadcast flag” that would be required on any device
capable of transmitting digital video (i.e., a computer), and that would disable the copying of any
content that is marked with a broadcast flag. Other members of Congress have proposed immunizing
content providers from liability for technology they might deploy that would hunt down copyright
violators and disable their machines.
In one sense, these solutions seem sensible. If the problem is the code, why not regulate the
code to remove the problem. But any regulation of technical infrastructure will always be tuned to the
particular technology of the day. It will impose significant burdens and costs on the technology, but will
likely be eclipsed by advances around exactly those requirements.
In March 2002, a broad coalition of technology companies, led by Intel, tried to get Congress to
see the harm that such legislation would impose. Their argument was obviously not that copyright
should not be protected. Instead, they argued, any protection should not do more harm than good.
There is one more obvious way in which this war has harmed innovation — again, a story that
will be quite familiar to the free market crowd.
Copyright may be property, but like all property, it is also a form of regulation. It is a regulation
that benefits some and harms others. When done right, it benefits creators and harms leeches. When
done wrong, it is regulation the powerful use to defeat competitors.
[…D]espite this feature of copyright as regulation, and subject to important qualifications
outlined by Jessica Litman in her book Digital Copyright, overall this history of copyright is not bad.
[…W]hen new technologies have come along, Congress has struck a balance to assure that the new is
protected from the old. Compulsory, or statutory, licenses have been one part of that strategy. Free use
(as in the case of the VCR) has been another. But that pattern of deference to new technologies has now
changed with the rise of the Internet. Rather than striking a balance between the claims of a new
technology and the legitimate rights of content creators, both the courts and Congress have imposed
legal restrictions that will have the effect of smothering the new to benefit the old.
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The response by the courts has been fairly universal. It has been mirrored in the responses
threatened and actually implemented by Congress. […] Translation: The aim is to use the law to
eliminate competition, so that this platform of potentially immense competition, which would cause the
diversity and range of content available to explode, would not cause pain to the dinosaurs of old. There
is no one, on either the right or the left, who should endorse this use of the law. And yet there is
practically no one, on either the right or the left, who is doing anything effective to prevent it.
Conclusion
A simple idea blinds us, and under the cover of darkness, much happens that most of us would
reject if any of us looked. So uncritically do we accept the idea of property in ideas that we don’t even
notice how monstrous it is to deny ideas to a people who are dying without them. So uncritically do we
accept the idea of property in culture that we don’t even question when the control of that property
removes our ability, as a people, to develop our culture democratically. Blindness becomes our
common sense. And the challenge for anyone who would reclaim the right to cultivate our culture is to
find a way to make this common sense open its eyes.
So far, common sense sleeps. There is no revolt. Common sense does not yet see what there
could be to revolt about. The extremism that now dominates this debate fits with ideas that seem
natural, and that fit is reinforced by the RCAs of our day. They wage a frantic war to fight “piracy,” and
devastate a culture for creativity. They defend the idea of “creative property,” while transforming real
creators into modern†day sharecroppers. They are insulted by the idea that rights should be balanced,
even though each of the major players in this content war was itself a beneficiary of a more balanced
ideal. The hypocrisy reeks. Yet in a city like Washington, hypocrisy is not even noticed. Powerful lobbies,
complex issues, and MTV attention spans produce the “perfect storm” for free culture.
In August 2003, a fight broke out in the United States about a decision by the World Intellectual
Property Organization to cancel a meeting. At the request of a wide range of interests, WIPO had
decided to hold a meeting to discuss “open and collaborative projects to create public goods.” These
are projects that have been successful in producing public goods without relying exclusively upon a
proprietary use of intellectual property. Examples include the Internet and the World Wide Web, both
of which were developed on the basis of protocols in the public domain. […]
But there is one project within that list that is highly controversial, at least among lobbyists.
That project is “open source and free software.” Microsoft in particular is wary of discussion of the
subject. From its perspective, a conference to discuss open source and free software would be like a
conference to discuss Apple’s operating system. Both open source and free software compete with
Microsoft’s software. And internationally, many governments have begun to explore requirements that
they use open source or free software, rather than “proprietary software,” for their own internal uses.
I don’t mean to enter that debate here. It is important only to make clear that the distinction is
not between commercial and noncommercial software. There are many important companies that
depend fundamentally upon open source and free software, IBM being the most prominent. IBM is
increasingly shifting its focus to the GNU/Linux operating system, the most famous bit of “free
software”—and IBM is emphatically a commercial entity. Thus, to support “open source and free
software” is not to oppose commercial entities. It is, instead, to support a mode of software
development that is different from Microsoft’s.
More important for our purposes, to support “open source and free software” is not to oppose
copyright. “Open source and free software” is not software in the public domain. Instead, like
Microsoft’s software, the copyright owners of free and open source software insist quite strongly that
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the terms of their software license be respected by adopters of free and open source software. The
terms of that license are no doubt different from the terms of a proprietary software license. Free
software licensed under the General Public License (GPL), for example, requires that the source code for
the software be made available by anyone who modifies and redistributes the software. But that
requirement is effective only if copyright governs software. If copyright did not govern software, then
free software could not impose the same kind of requirements on its adopters. It thus depends upon
copyright law just as Microsoft does.
It is therefore understandable that as a proprietary software developer, Microsoft would
oppose this WIPO meeting, and understandable that it would use its lobbyists to get the United States
government to oppose it, as well. And indeed, that is just what was reported to have happened.
According to Jonathan Krim of the Washington Post, Microsoft’s lobbyists succeeded in getting the
United States government to veto the meeting. And, without U.S. backing, the meeting was canceled. I
don’t blame Microsoft for doing what it can to advance its own interests, consistent with the law. And
lobbying governments is plainly consistent with the law. There was nothing surprising about its lobbying
here, and nothing terribly surprising about the most powerful software producer in the United States
having succeeded in its lobbying efforts.
What was surprising was the United States government’s reason for opposing the meeting.
Again, as reported by Krim, Lois Boland, acting director of international relations for the U.S. Patent and
Trademark Office, explained that “open†source software runs counter to the mission of WIPO, which is
to promote intellectual†property rights.” She is quoted as saying, “To hold a meeting which has as its
purpose to disclaim or waive such rights seems to us to be contrary to the goals of WIPO.” These
statements are astonishing on a number of levels. First, they are just flat wrong. As I described, most
open source and free software relies fundamentally upon the intellectual property right called
“copyright.” Without it, restrictions imposed by those licenses wouldn’t work. Thus, to say it “runs
counter” to the mission of promoting intellectual property rights reveals an extraordinary gap in
understanding— the sort of mistake that is excusable in a first†year law student, but an embarrassment
from a high government official dealing with intellectual property issues.
Second, whoever said that WIPO’s exclusive aim was to “promote” intellectual property
maximally? As I had been scolded at the preparatory conference of WSIS, WIPO is to consider not only
how best to protect intellectual property, but also what the best balance of intellectual property is. As
every economist and lawyer knows, the hard question in intellectual property law is to find that
balance. But that there should be limits is, I had thought, uncontested. One wants to ask Ms. Boland,
are generic drugs (drugs based on drugs whose patent has expired) contrary to the WIPO mission? Does
the public domain weaken intellectual property? Would it have been better if the protocols of the
Internet had been patented?
Third, even if one believed that the purpose of WIPO was to maximize intellectual property
rights, in our tradition, intellectual property rights are held by individuals and corporations. They get to
decide what to do with those rights because, again, they are their rights. If they want to “waive” or
“disclaim” their rights, that is, within our tradition, totally appropriate. When Bill Gates gives away more
than $20 billion to do good in the world, that is not inconsistent with the objectives of the property
system. That is, on the contrary, just what a property system is supposed to be about: giving individuals
the right to decide what to do with their property. […]
There is a history of just such a property system that is well known in the Anglo†American
tradition. It is called “feudalism.” Under feudalism, not only was property held by a relatively small
number of individuals and entities. And not only were the rights that ran with that property powerful
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and extensive. But the feudal system had a strong interest in assuring that property holders within that
system not weaken feudalism by liberating people or property within their control to the free market.
Feudalism depended upon maximum control and concentration. It fought any freedom that might
interfere with that control. As Peter Drahos and John Braithwaite relate, this is precisely the choice we
are now making about intellectual property. We will have an information society. That much is certain.
Our only choice now is whether that information society will be free or feudal. The trend is toward the
feudal. […]
I understand criticism of academic utopianism. I think utopianism is silly, too, and I’d be the first
to poke fun at the absurdly unrealistic ideals of academics throughout history (and not just in our own
country’s history). But when it has become silly to suppose that the role of our government should be to
“seek balance,” then count me with the silly, for that means that this has become quite serious indeed.
If it should be obvious to everyone that the government does not seek balance, that the government is
simply the tool of the most powerful lobbyists, that the idea of holding the government to a different
standard is absurd, that the idea of demanding of the government that it speak truth and not lies is just
naïve, then who have we, the most powerful democracy in the world, become?
It might be crazy to expect a high government official to speak the truth. It might be crazy to
believe that government policy will be something more than the handmaiden of the most powerful
interests. It might be crazy to argue that we should preserve a tradition that has been part of our
tradition for most of our history — free culture. If this is crazy, then let there be more crazies. Soon.
There are moments of hope in this struggle. And moments that surprise. When the FCC was
considering relaxing ownership rules, which would thereby further increase the concentration in media
ownership, an extraordinary bipartisan coalition formed to fight this change. For perhaps the first time
in history, interests as diverse as the NRA, the ACLU, Moveon.org, William Safire, Ted Turner, and Code
Pink Women for Peace organized to oppose this change in FCC policy. An astonishing 700,000 letters
were sent to the FCC, demanding more hearings and a different result.
This activism did not stop the FCC, but soon after, a broad coalition in the Senate voted to
reverse the FCC decision. The hostile hearings leading up to that vote revealed just how powerful this
movement had become. There was no substantial support for the FCC’s decision, and there was broad
and sustained support for fighting further concentration in the media.
But even this movement misses an important piece of the puzzle. Largeness as such is not bad.
Freedom is not threatened just because some become very rich, or because there are only a handful of
big players. […] The danger in media concentration comes not from the concentration, but instead from
the feudalism that this concentration, tied to the change in copyright, produces. It is not just that there
are a few powerful companies that control an ever expanding slice of the media. It is that this
concentration can call upon an equally bloated range of rights—property rights of a historically extreme
form — that makes their bigness bad. […]
As I write these final words, the news is filled with stories about the RIAA lawsuits against
almost three hundred individuals. Eminem has just been sued for “sampling” someone else’s music. The
story about Bob Dylan “stealing” from a Japanese author has just finished making the rounds. An insider
from Hollywood — who insists he must remain anonymous — reports “an amazing conversation with
these studio guys. They’ve got extraordinary [old] content that they’d love to use but can’t because
they can’t begin to clear the rights. They’ve got scores of kids who could do amazing things with the
content, but it would take scores of lawyers to clean it first.” Congressmen are talking about deputizing
computer viruses to bring down computers thought to violate the law. Universities are threatening
expulsion for kids who use a computer to share content. […]
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I’ve told a dark story. The truth is more mixed. A technology has given us a new freedom.
Slowly, some begin to understand that this freedom need not mean anarchy. We can carry a free
culture into the twenty†first century, without artists losing and without the potential of digital
technology being destroyed. It will take some thought, and more importantly, it will take some will […]
Common sense must revolt. It must act to free culture. Soon, if this potential is ever to be realized.
• “The Tyranny of Copyright?,” by Robert S. Boynton
[Robert S. Boynton, director of the graduate magazine journalism program at New York
University, is writing a book about American literary journalism.]
Last fall, a group of civic†minded students at Swarthmore College received a sobering lesson in
the future of political protest. They had come into possession of some 15,000 e†mail messages and
memos †presumably leaked or stolen †from Diebold Election Systems, the largest maker of electronic
voting machines in the country. The memos featured Diebold employees’ candid discussion of flaws in
the company’s software and warnings that the computer network was poorly protected from hackers. In
light of the chaotic 2000 presidential election, the Swarthmore students decided that this information
shouldn’t be kept from the public. Like aspiring Daniel Ellsbergs with their would — be Pentagon Papers,
they posted the files on the Internet, declaring the act a form of electronic whistle†blowing.
Unfortunately for the students, their actions ran afoul of the 1998 Digital Millennium Copyright
Act (D.M.C.A.), one of several recent laws that regulate intellectual property and are quietly reshaping
the culture. Designed to protect copyrighted material on the Web, the act makes it possible for an
Internet service provider to be liable for the material posted by its users †an extraordinary burden that
providers of phone service, by contrast, do not share. Under the law, if an aggrieved party (Diebold, say)
threatens to sue an Internet service provider over the content of a subscriber’s Web site, the provider
can avoid liability simply by removing the offending material. Since the mere threat of a lawsuit is
usually enough to scare most providers into submission, the law effectively gives private parties veto
power over much of the information published online †as the Swarthmore students would soon learn.
Not long after the students posted the memos, Diebold sent letters to Swarthmore charging the
students with copyright infringement and demanding that the material be removed from the students’
Web page, which was hosted on the college’s server. Swarthmore complied. The question of whether
the students were within their rights to post the memos was essentially moot: thanks to the Digital
Millennium Copyright Act, their speech could be silenced without the benefit of actual lawsuits, public
hearings, judges or other niceties of due process.
After persistent challenges by the students †and a considerable amount of negative publicity for
Diebold †in November the company agreed not to sue. To the delight of the students’ supporters, the
memos are now back on their Web site. But to proponents of free speech on the Internet, the story
remains a chilling one.
Siva Vaidhyanathan, a media scholar at New York University, calls anecdotes like this “copyright
horror stories,” and there have been a growing number of them over the past few years. Once a dry and
seemingly mechanical area of the American legal system, intellectual property law can now be found at
the center of major disputes in the arts, sciences and †as in the Diebold case †politics. Recent cases
have involved everything from attempts to force the Girl Scouts to pay royalties for singing songs around
campfires to the infringement suit brought by the estate of Margaret Mitchell against the publishers of
Alice Randall’s book The Wind Done Gone (which tells the story of Mitchell’s Gone With the Wind from a
slave’s perspective) to corporations like Celera Genomics filing for patents for human genes. The most
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publicized development came in September, when the Recording Industry Association of America began
suing music down†loaders for copyright infringement, reaching out†of†court settlements for thousands
of dollars with defendants as young as 12. And in November, a group of independent film producers
went to court to fight a ban, imposed this year by the Motion Picture Association of America, on sending
DVD’s to those who vote for annual film awards.
Not long ago, the Internet’s ability to provide instant, inexpensive and perfect copies of text,
sound and images was heralded with the phrase “information wants to be free.” Yet the implications of
this freedom have frightened some creators†particularly those in the recording, publishing and movie
industries †who argue that the greater ease of copying and distribution increases the need for more
stringent intellectual property laws. The movie and music industries have succeeded in lobbying
lawmakers to allow them to tighten their grips on their creations by lengthening copyright terms. The
law has also extended the scope of copyright protection, creating what critics have called a
“paracopyright,” which prohibits not only duplicating protected material but in some cases even gaining
access to it in the first place. In addition to the Digital Millennium Copyright Act, the most significant
piece of new legislation is the 1998 Copyright Term Extension Act, which added 20 years of protection to
past and present copyrighted works and was upheld by the Supreme Court a year ago. In less than a
decade, the much†ballyhooed liberating potential of the Internet seems to have given way to something
of an intellectual land grab, presided over by legislators and lawyers for the media industries.
In response to these developments, a protest movement is forming, made up of lawyers,
scholars and activists who fear that bolstering copyright protection in the name of foiling “piracy” will
have disastrous consequences for society †hindering the ability to experiment and create and eroding
our democratic freedoms. This group of reformers, which Lawrence Lessig, a professor at Stanford Law
School, calls the “free culture movement,” might also be thought of as the “Copy Left” (to borrow a term
originally used by software programmers to signal that their product bore fewer than the usual amount
of copyright restrictions). Lawyers and professors at the nation’s top universities and law schools, the
members of the Copy Left aren’t wild†eyed radicals opposed to the use of copyright, though they do
object fiercely to the way copyright has been distorted by recent legislation and manipulated by
companies like Diebold. Nor do they share a coherent political ideology. What they do share is a fear
that the United States is becoming less free and ultimately less creative. While the American copyright
system was designed to encourage innovation, it is now, they contend, being used to squelch it. They
see themselves as fighting for a traditional understanding of intellectual property in the face of a radical
effort to turn copyright law into a tool for hoarding ideas. “The notion that intellectual property rights
should never expire, and works never enter the public domain †this is the truly fanatical and
unconstitutional position,” says Jonathan Zittrain, a co†founder of the Berkman Center for Internet and
Society at Harvard Law School, the intellectual hub of the Copy Left.
Thinkers like Lessig and Zittrain promote a vision of a world in which copyright law gives
individual creators the exclusive right to profit from their intellectual property for a brief, limited period
†thus providing an incentive to create while still allowing successive generations of creators to draw
freely on earlier ideas. They stress that borrowing and collaboration are essential components of all
creation and caution against being seduced by the romantic myth of “the author”: the lone garretdwelling
poet, creating masterpieces out of thin air. “No one writes from nothing,” says Yochai Benkler,
a professor at Yale Law School. “We all take the world as it is and use it, remix it.”
Where does the Copy Left believe a creation ought to go once its copyright has lapsed? Into the
public domain, or the “cultural commons” †a shared stockpile of ideas where the majority of America’s
music and literature would reside, from which anyone could partake without having to pay or ask
permission. James Boyle, a professor at Duke Law School, notes that the public domain is a necessity for
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January 4, 2010 Campus Center Ballroom, 3rd Floor, at 10:00 a.m.
social and cultural progress, not some sort of socialist luxury. “Our art, our culture, our science depend
on this public domain,” he has written, “every bit as much as they depend on intellectual property.”
In opposition to the cultural commons stands the “permission culture,” an epithet the Copy Left
uses to describe the world it fears our current copyright law is creating. Whereas you used to own the
CD or book you purchased, in the permission culture it is more likely that you’ll lease (or “license”) a
song, video or e†book, and even then only under restrictive conditions: read your e†book, but don’t copy
and paste any selections; listen to music on your MP3 player, but don’t bum it onto a CD or transfer it to
your stereo. The Copy Left sees innovations like iTunes, Apple’s popular online music store, as the first
step toward a society in which much of the cultural activity that we currently take for granted †reading
an encyclopedia in the public library, selling a geometry textbook to a friend, copying a song for a sibling
†will be rerouted through a system of micropayments in return for which the rights to ever smaller
pieces of our culture are doled out. “Sooner or later,” predicts Miriam Nisbet, the legislative counsel for
the American Library Association, “you’ll get to the point where you say, ‘Well, I guess that 25 cents isn’t
too much to pay for this sentence,’ and then there’s no hope and no going back.”
There is a growing sense of urgency among the members of the Copy Left. They worry that if
they do not raise awareness of what is happening to copyright law, Americans will be stuck forever with
the consequences of decisions now being made †and laws being passed †in the name of preventing
piracy. “We are at a moment in our history at which the terms of freedom and justice are up for grabs,”
Benkler says. He notes that each major innovation in the history of communications †the printing press,
radio, telephone †was followed by a brief period of openness before the rules of its usage were
determined and alternatives eliminated. “The Internet,” he says, “is in that space right now.”
America has always had an ambivalent attitude toward the notion of intellectual property.
Thomas Jefferson, for one, considered copyright a necessary evil: he favored providing just enough
incentive to create, nothing more, and thereafter allowing ideas to flow freely as nature intended. “If
nature has made anyone thing less susceptible than all others of exclusive property,” he wrote, “it is the
action of the thinking power called an idea, which an individual may exclusively possess as long as he
keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone.” His
conception of copyright was enshrined in Article 1, Section 8 of the Constitution, which gives Congress
the authority 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.”
But Jefferson’s vision has not fared well. As the country’s economy developed from agrarian to
industrial to “information,” ideas took on greater importance, and the demand increased for stronger
copyright laws. In 1790, copyright protection lasted for 14 years and could be renewed just once before
the work entered the public domain. Between 1831 and 1909, the maximum term was increased from
28 to 56 years. Today, copyright protection for individuals lasts for 70 years after the death of the
author; for corporations, it’s 95 years after publication. Over the past three decades, the flow of
material entering the public domain has slowed to a trickle: in 1973, according to Lessig, more than 85
percent of copyright owners chose not to renew their copyrights, allowing their ideas to become
common coin; since the 1998 Copyright Term Extension Act lengthened present and past copyrights for
an additional 20 years, little material will enter the public domain any time soon.
Some of the changes that expanded copyright protection were made with an understanding of
their effects; what also troubles the Copy Left, however, are the unintended consequences of seemingly
innocuous tweaks in copyright legislation. In particular, two laws that were passed years before the
creation of the Internet helped set the stage for today’s copyright bonanza. Before the 1909 Copyright
Act, copyright was construed as the exclusive right to “publish” a creation; but the 1909 law changed the
WPE Reading Set A: Intellectual Property Law: Copyright or Copy Wrong? Page 19
January 4, 2010 Campus Center Ballroom, 3rd Floor, at 10:00 a.m.
wording to prohibit others from “copying” one’s creation †a seemingly minor change that thereafter
linked copyright protection to the copying technology of the day, whether that was the pen, the
photocopy machine, the VCR or the Internet. In 1976, a revision to the law dispensed with the
requirement of formally registering or renewing a copyright in order to comply with international
copyright standards. Henceforth, everything †from e†mail messages to doodles on a napkin †was
automatically copyrighted the moment it was “fixed in a tangible medium.”
The true significance of these two laws didn’t become apparent until the arrival of the Internet,
when every work became automatically protected by copyright and every use of a work via the Internet
constituted a new copy. “Nobody realized that eliminating those requirements would create a
nightmare of uncertainty and confusion about what content is available to use,” Lessig explains, “which
is a crucial question now that the Internet is the way we gain access to so much content. It was a kind of
oil spill in the free culture.”
Lessig is one of the most prominent and eloquent defenders of the Copy Left’s belief that
copyright law should return to its Jeffersonian roots. “We are invoking ideas that should be central to
the American tradition, such as that a free society is richer than a control society,” he says. “But in the
cultural sphere, big media wants to build a new Soviet empire where you need permission from the
central party to do anything.” He complains that Americans have been reduced to “an Oliver Twist†like
position,” in which they have to ask, “Please, sir, may I?” every time we want to use something under
copyright †and then only if we are fortunate enough to have the assistance of a high†priced lawyer.
In October 2002, Lessig argued before the Supreme Court in Eldred v. Ashcroft, which concerned
a challenge to the Copyright Term Extension Act. On behalf of the plaintiffs, Lessig argued that
perpetually extending the term of copyright was a violation of the Constitution’s requirement that
copyright exist for “a limited time.” The court responded that although perhaps unwise on policy
grounds, granting such extensions was within Congress’s power. It was a major setback for the Copy
Left. Given the Eldred decision, there is nothing to stop a future Congress from extending copyright’s
term again and again.
Lessig’s efforts haven’t been limited to the courtroom. In 2001, he was part of a group that
founded an organization called Creative Commons, which offers individual creators the ability to
carefully calibrate the level of control they wish to maintain over their works. The organization services
the needs of, say, musicians who want rappers and DJ’s to be able to download and remix their music
without legal trouble or of writers who want their works republished without charge, but only by
nonprofit publications. The Commons has developed a software application for the Web that allows
copyright holders who do not want to exercise all of the restrictions of copyright law to dedicate their
work to the public domain or license it on terms that allow copying and creative reuses. The aim of
Creative Commons is not only to increase the sum of raw source material online but also to make it
cheaper and easier for other creators to locate and access that material. This will enable people to use
the Internet to find, for example, photographs that are free to be altered or reused or texts that may be
copied, distributed or sampled †all by their authors’ permission. The Creative Commons now has a
presence in 10 countries, including Brazil, whose minister of culture, the musician Gilberto Gil, plans to
release some of his songs under the Creative Commons license so that others may freely borrow from
them. Creative Commons is currently talking to Amazon and others about a plan to release out†of†print
books under Creative Commons licenses.
One of the central ideas of the Copy Left is that the Internet has been a catalyst for reengaging
with the culture †for interacting with the things we read and watch and listen to, as opposed to just
sitting back and absorbing them. This vision of how culture works stands in contrast to what the Copy
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January 4, 2010 Campus Center Ballroom, 3rd Floor, at 10:00 a.m.
Left calls the “broadcast model” †the arrangement in which a small group of content producers
disseminate their creations (television, movies, music) through controlled routes (cable, theaters, radioâ€
TV stations) to passive consumers. Yochai Benkler, the law professor at Yale, argues that people want to
be more engaged in their culture, despite the broadcast technology, like television, that he says has
narcotized us. “People are users,” he says. “They are producers, storytellers, consumers, interactors â€
complex, varied beings, not just people who go to the store, buy a packaged good off the shelf and
consume.”
[…] Benkler’s belief in the importance of creating things in common rests on more than
anecdotal evidence. What makes his argument more than wishful thinking, he said, is that he has some
economic evidence for his view. “Let’s compare a few numbers,” he said. “How much do people pay the
recording industry to listen to music versus how much people pay the telephone industry to talk to their
friends and family? The recording industry is a $12 billion a year business, compared with the telephone
business, which is a more than $250 billion a year business. That is what economists call a ‘revealed
willingness to pay,’ a clear preference for a technology that allows you to participate in work, socializing
and interaction in general, over a technology that allows you to be a passive consumer of a packaged
good. Is that a study of human nature? No. Is it an economic measure that would suggest there is a lot
of demand out there for speaking and listening to others? Yes.”
According to Benkler, the cultural commons not only offers a better model for creativity; it
makes good economic sense. Like Lessig and other members of the Copy Left, he takes his bearings from
the free software movement and views the success of products like Linux and services like Google as
evidence of a viable collaborative (or “peer to peer”) model for producing and sharing ideas †a model
that will augment and, in some cases, replace the current model. (He concedes that some products, like
novels and blockbuster movies, will never be produced peer to peer, though they will draw on the work
of artists before them.) Benkler predicts that the recording industry will be one of the first businesses to
go. “All it does is package and sell goods,” he said, “which is technically an unfeasible way of continuing.
They are trying their best to legislate the environment to change, but that doesn’t mean we have to let
them.”
The battle between the Copy Left and its opponents is as much a clash of worldviews as of legal
doctrine. Aligned against the Copy Left are those who sympathize with the romantic notion of
authorship and view the culture as a market in which everything of value should be owned by someone
or other. Jane Ginsburg, a professor at Columbia Law School who specializes in copyright law, fears that
in the Copy Left’s rush to secure the public domain, it gives short shrift to the author. A self†described
“copyright enthusiast,” Ginsburg considers the author the moral center of copyright law and questions
equating copyright control with corporate greed. “Copyright cannot be understood merely as a
grudgingly tolerated way station on the road to the public domain,” she writes in a recent article titled
“The Concept of Authorship in Comparative Copyright Law.” “Because copyright arises out of the act of
creating a work, authors have moral claims that neither corporate intermediaries nor consumer endusers
can (straight†facedly) assert.”
Ginsburg and others embrace many elements of the “permission society” demonized by the
Copy Left and cite developments like the iTunes store as a sign of greater consumer choice and freedom.
In his book “Copyright’s Highway,” Paul Goldstein, a professor at Stanford Law School, writes that “the
logic of property rights dictates their extension into every corner in which people derive enjoyment and
value from literary and artistic works.” He characterizes the permission society as a “celestial jukebox” in
which access to every creation †music, literature, movies, art†is available to anyone for a price.
An entire “digital rights management” industry has arisen to bring this vision to fruition, each
company calibrating a particular license through a system of micropayments †play a song on your
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January 4, 2010 Campus Center Ballroom, 3rd Floor, at 10:00 a.m.
computer for one price; transfer it to your MP3 player for a slightly higher fee. Goldstein argues that the
scheme of a business like iTunes is actually more efficient and democratic than the commons model
championed by the Copy Left. “The problem with the commons is that it doesn’t take into consideration
the direction of the payment; it doesn’t reveal what kind of culture gets used and what kind doesn’t,” he
says. “I think it is good to have a price tag attached to each use because it tells producers what
consumers want; it lets them vote with their purchase for the kinds of culture they want.”
But the Copy Left is convinced that there is a better way for the entertainment industry to adapt
to the Internet age while still paying its artists their due. William Fisher, director of the Berkman Center,
has spent the last three years devising an alternative compensation system that would enable the
entertainment industry to restructure its business model without resorting to cumbersome
micropayments. He has worked out a modified version of the system that artists’ advocacy groups
currently use to make sure that composers are paid when their music is performed or recorded.
According to Fisher’s plan, all works capable of being transmitted online would be registered with a
central office (whether government or independent is unclear). The central office would then monitor
how frequently a work is used and compensate the creators on that basis. The money would come from
a tax on various content†related devices, like DVD burners, blank CD’s or digital recorders. It is a brave
proposal in a political culture that is allergic to taxes and uncomfortable with complex solutions. Still, if
his numbers do indeed add up, Fisher’s proposal might be the best thing that ever happened to the
cultural commons: the creators would be paid, while every individual would have unlimited access to
every cultural creation.
Fisher and Charles Nesson, his colleague at Harvard Law School, have showed this proposal to
movie executives and lawyers for several media conglomerates. Fisher says that his ideas have been
received with great interest by the very industries †music, home video †that see their business models
disintegrating before their eyes. When asked whether he thinks his ambitious scheme has a chance,
Fisher says that the likeliest possibility would be for it to be adopted in countries that are neither so
developed that they have signed on to international copyright protocols nor so undeveloped that they
are desperate to do so. Only second†world countries, like Croatia or Brazil, he speculates, are unfettered
enough to try something new. “The hope is in the rain forest,” he says, in countries that “are more like
the United States was before 1890, when we were a ‘pirate’ nation.”
And in the United States, is there any future for this sort of payment system? Perhaps when the
various current schemes fail, Fisher’s plan will seem more attractive, he says. “What is involved here is
nothing less than the shape of our culture and the way we think of ourselves as citizens,” he adds. He
describes a recent letter he received from a supporter of his work. “When they come for my guns and
my music, they’d better bring an army,” it read. “People are used to being creatively engaged with the
culture,” Fisher explains. “They won’t let someone legislate that away.”
The future of the Copy Left’s efforts is still an open question. James Boyle has likened the
movement’s efforts to establish a cultural commons to those of the environmental movement in its
infancy. Like Rachel Carson in the years before Earth Day, the Copy Left today is trying to raise
awareness of the intellectual “land” to which they believe we ought to feel entitled and to propose
policies and laws that will preserve it. Just as the idea of environmentalism became viable in the wake of
the last century’s advances in industrial production, the growth of this century’s information
technologies, Boyle argues, will force the country to address the erosion of the cultural commons. “The
environmentalists helped us to see the world differently,” he writes, “to see that there was such a thing
as ‘the environment’ rather than just my pond, your forest, his canal. We need to do the same thing in
the information environment. We have to ‘invent’ the public domain before we can save it.”
WPE Reading Set A: Intellectual Property Law: Copyright or Copy Wrong? Page 22
January 4, 2010 Campus Center Ballroom, 3rd Floor, at 10:00 a.m.
Notes

is Bill Cosby Blaming the Victim ?
Now Playing: is Bill Cosby Blaming the Victim ?
Topic: Essay
WPE Portfolio Reading Set, Due January 4, 2010 at 4:00 p.m. CC 2/2100 Page 1
University of Massachussets/Boston
Colleges of Liberal Arts, Science and Math, and Nursing and Health Sciences
Writing Proficiency Portfolios are due in the Writing Proficiency Office,
Campus Center 2/2100 on January 4, 2010 no later than 4:00 P.M.
Portfolio Reading Set: Is Bill Cosby Blaming the Victim?
Question:
Recently Bill Cosby, who is an actor and comedian, got serious at a gala commemorating the
50th anniversary of Brown v. Board in Washington, DC. Cosby, who holds a doctorate, revealed his
serious side as a social activist in his speech. Cosby made a series of critical comments about some of
the poor in African†American communities. Cosby’s speech created a controversy; in your essay,
briefly summarize the controversy and take a position on the debate: is Bill Cosby’s criticism justified
or, as William Ryan might ask, is he blaming the victim? Support your position by analyzing the
arguments in the reading set.
Readings: Is Bill Cosby Blaming the Victim?
1. Cosby, Bill. “50th Anniversary Commemoration of the Brown vs. Topeka Board of Education
Supreme Court Decision. http://www.eightcitiesmap.com/transcriptjx.htm 3/20/2006
2. West, Cornel. Interview with Tavis Smiley. Tavis Smiley. NPR. Los Angeles. 26 May 2004.
3. Cosby, Bill. Interview with Lynn Neary. Talk of the Nation. NPR. Washington. 7 July 2004.
4. Dyson, Michael Eric. Interview with Neal Conan. Talk of the Nation. NPR. Washington. 3 May 2005.
5. Ryan, William. “Blaming the Victim.” Race, Class, and Gender in the United States: An Integrated
Study. Ed. Paula S. Rothenberg. New York: St. Martin’s, 1998. 519†529.
6. McGruder, Aaron. Public Enemy #2: An All†New Boondocks Collection. Boondocks: Three Rivers
Press, 2005.
All articles are reprinted by permission of the rights holder; no further copy may be made without their permission.
Notes:
1) Your portfolio must contain an essay that is at least five full pages (double spaced in 10 or 12 point type);
Please number the pages of your portfolio essays; place numbers either in a header or a footer. Make sure
that your essay answers the question above, and that your portfolio has 15 pages of supporting paperseach
one should be attached to a completed Certification Form†and a completed Portfolio Submission
form. If you are currently a first semester transfer student, you can submit 10 pages of supporting papers,
but you must indicate when you transferred to UMB on your Portfolio submission form. You must place all
of the required items in an envelope that has your name and UMS number on it, and submit it to the
Writing Proficiency Office (CC†2/2100) by 4:00 p.m. on Monday, January 4, 2010.
2) Please check our web†site, http://www.umb.edu/academics/wpr/, for the dates and times of the Writing
Proficiency Workshops. The workshops will focus on strategies for developing a thesis, organizing an
argument, and analyzing the reading sets.
3) When submitting a portfolio to fulfill the General Education Writing Proficiency Requirement, you must
certify that the contents of the portfolio are entirely your own work and has not been wholly or partially
written, revised, or edited by anyone else. Plagiarism in a portfolio, whether it is in the new essay or one of
the supporting essays, will be treated in the manner as outlined in the Code of Student Conduct. The
consequences of violating these policies are serious and may include suspension or expulsion.
WPE Portfolio Reading Set, Due January 4, 2010 at 4:00 p.m. CC 2/2100 Page 2
• “50th Anniversary commemoration of the Brown vs. Topeka Board of
Education Supreme Court Decision,” by Bill Cosby
[Transcript kindly provided by Dr. Bill Cosby’s public relations representatives. (Editor’s note: Please understand that
there may be some minor typographical inaccuracies resulting from audio to text software resolution issues.)]
Ladies and gentlemen, I really have to ask you to seriously consider what you’ve heard, and now this is
the end of the evening so to speak. I heard a prize fight manager say to his fellow who was losing badly,
“David, listen to me. It’s not what’s he’s doing to you. It’s what you’re not doing.” (laughter)
Ladies and gentlemen, these people set, they opened the doors, they gave us the right, and today,
ladies and gentlemen, in our cities and public schools we have fifty percent drop out. In our own
neighborhood, we have men in prison. No longer is a person embarrassed because they’re pregnant without a
husband. (clapping) No longer is a boy considered an embarrassment if he tries to run away from being the
father of the unmarried child. (clapping)
Ladies and gentlemen, the lower economic and lower middle economic people are [not*] holding their
end in this deal. In the neighborhood that most of us grew up in, parenting is not going on. (clapping) In the old
days, you couldn’t hooky school because every drawn shade was an eye (laughing). And before your mother
got off the bus and to the house, she knew exactly where you had gone, who had gone into the house, and
where you got on whatever you had one and where you got it from. Parents don’t know that today.
I’m talking about these people who cry when their son is standing there in an orange suit. Where were
you when he was two? (clapping) Where were you when he was twelve? (clapping) Where were you when he
was eighteen, and how come you don’t know he had a pistol? (clapping) And where is his father, and why
don’t you know where he is? And why doesn’t the father show up to talk to this boy?
The church is only open on Sunday. And you can’t keep asking Jesus to ask doing things for you
(clapping). You can’t keep asking that God will find a way. God is tired of you (clapping and laughing). God was
there when they won all those cases. 50 in a row. That’s where God was because these people were doing
something. And God said, “I’m going to find a way.” I wasn’t there when God said it†I’m making this up
(laughter). But it sounds like what God would do. (laughter)
We cannot blame white people. White people, (clapping) white people don’t live over there. They
close up the shop early. The Korean ones still don’t know us as well ... they stay open 24 hours. (laughter)
I’m looking and I see a man named Kenneth dark. He and his wife Mamie.. .Kenneth’s still alive. I have
to apologize to him for these people because Kenneth said it straight. He said you have to strengthen
yourselves... and we’ve got to have that black doll. And everybody said it. Julian Bond said it. Dick Gregory said
it. All these lawyers said it. And you wouldn’t know that anybody had done a damned thing.
50 percent drop†out rate, I’m telling you, and people in jail, and women having children by five, six
different men. Under what excuse, I want somebody to love me, and as soon as you have it, you forget to
parent. Grandmother, mother, and great grandmother in the same room, raising children, and the child knows
nothing about love or respect of any one of the three of them. (clapping) All this child knows is “gimme,
gimme, gimme.” These people want to buy the friendship of a child†and the child couldn’t care less. Those of
us sitting out here who have gone on to some college or whatever we’ve done, we still fear our parents.
(clapping and laughter) And these people are not parenting. They’re buying things for the kid. $500 sneakers,
for what? They won’t buy or spend $250 on Hooked on Phonics. (clapping)
Kenneth Dark, somewhere in his home in upstate New York ... just looking ahead. Thank God, he
doesn’t know what’s going on, thank God. But these people, the ones up here in the balcony fought so hard.
Looking at the incarcerated, these are not political criminals. These are people going around stealing Coca
Cola. People getting shot in the back of the head over a piece of pound cake! Then we all run out and are
WPE Portfolio Reading Set, Due January 4, 2010 at 4:00 p.m. CC 2/2100 Page 3
outraged, “The cops shouldn’t have shot him.” What the hell was he doing with the pound cake in his hand?
(laughter and clapping) I wanted a piece of pound cake just as bad as anybody else. (laughter) And I looked at it
and I had no money. And something called parenting said if get caught with it, you’re going to embarrass your
mother. Not you’re going to get your butt kicked. No. You’re going to embarrass your mother. You’re going to
embarrass your family.
If knock that girl up, you’re going to have to run away because it’s going to be too embarrassing for
your family. In the old days, a girl getting pregnant had to go down South, and then her mother would go down
to get her. But the mother had the baby. I said the mother had the baby. The girl didn’t have a baby. The
mother had the baby in two weeks. (laughter) We are not parenting. Ladies and gentlemen, listen to these
people, they are showing you what’s wrong. People putting their clothes on backwards, †isn’t that a sign of
something going on wrong? (laughter)
Are you not paying attention, people with their hat on backwards, pants down around the crack. Isn’t
that a sign of something, or are you waiting for Jesus to pull his pants up (laughter and clapping). Isn’t it a sign
of something when she’s got her dress all the way up to the crack ... and got all kinds of needles and things
going through her body. What part of Africa did this come from? (laughter) We are not Africans. Those people
are not Africans, they don’t know a damned thing about Africa. With names like Shaniqua, Shaligua,
Mohammed and all that crap and all of them are in jail. (When we give these kinds names to our children, we
give them the strength and inspiration in the meaning of those names. What’s the point of giving them strong
names if there is not parenting and values backing it up.)
Brown vs. the Board of Education is no longer the white person’s problem. We’ve got to take the
neighborhood back (clapping). We’ve got to go in there. Just forget telling your child to go to the Peace Corps.
It’s right around the comer. (laughter) It’s standing on the corner. It can’t speak English. It doesn’t want to
speak English. I can’t even talk the way these people talk. “Why you ain’t, where you is, go, ra. I don’t know
who these people are. And, I blamed the kid until I heard the mother talk. (laughter) Then I heard the father
talk. This is all in the house. You used to talk a certain way on the comer and you got into the house and
switched to English. Everybody knows it’s important to speak English except these knuckleheads. You can’t
land a plane with “why you ain’t ...” You can’t be a doctor with that kind of crap coming out of your mouth.
There is no Bible that has that kind of language. Where did these people get the idea that they’re moving
ahead on this. Well, they know they’re not, they’re just hanging out in the same place, five or six generations
sitting in the projects when you’re just supposed to stay there long enough to get a job and move out.
Now look, I’m telling you. It’s not what they’re doing to us. It’s what we’re not doing. 50 percent drop
out. Look, we’re raising our own ingrown immigrants. These people are fighting hard to be ignorant. There’s no
English being spoken, and they’re walking and they’re angry. Oh God, they’re angry and they have pistols and
they shoot and they do stupid things. And after they kill somebody, they don’t have a plan. Just murder
somebody. Boom. Over what? A pizza? And then run to the poor cousin’s house. They sit there and the cousin
says “what are you doing here?” “I just killed somebody, man.” “What?” “I just killed somebody, I’ve got to
stay here.” “No, you don’t.” “Well, give me some money, I’ll go ...” “Where are you going?” “North Carolina.”
Everybody wanted to go to North Carolina. But the police know where you’re going because your cousin has a
record.
Five or six different children, same woman, eight, ten different husbands or whatever, pretty soon
you’re going to have to have DNA cards so you can tell who you’re making love to. You don’t know who this is.
It might be your grandmother, (laughter) I’m telling you, they’re young enough. Hey, you have a baby when
you’re twelve. Your baby turns thirteen and has a baby, how old are you? Huh? Grandmother. By the time
you’re twelve, you could have sex with your grandmother, you keep those numbers coming. I’m just
predicting.
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I’m saying Brown vs. Board of Education. We’ve got to hit the streets, ladies and gentlemen. I’m
winding up, now, no more applause. I’m saying, look at the Black Muslims. There are Black Muslims standing
on the street comers and they say so forth and so on, and we’re laughing at them because they have bean†pies
[hats] and all that, but you don’t read “Black Muslim gunned down while chastising drug dealer.” You don’t
read that. They don’t shoot down Black Muslims. You understand me. Muslims tell you to get out of the
neighborhood. When you want to clear your neighborhood out, first thing you do is go get the Black Muslims,
bean pies and all. (laughter) And your neighborhood is then clear. The police can’t do it.
I’m telling you Christians, what’s wrong with you? Why can’t you hit the streets? Why can’t you clean it
out yourselves? It’s our time now, ladies and gentlemen. It is our time. (clapping) And I’ve got good news for
you.
It’s not about money. It’s about you doing something ordinarily that we do—get in somebody else’s
business. It’s time for you to not accept the language that these people are speaking, which will take them
nowhere. What the hell good is Brown V. Board of Education if nobody wants it?
What is it with young girls getting after some girl who wants to still remain a virgin. Who are these sick
black people and where did they come from and why haven’t they been parented to shut up? To go up to girls
and try to get a club where “you are nobody.” This is a sickness ladies and gentlemen and we are not paying
attention to these children. These are children. They don’t know anything. They don’t have anything. They’re
homeless people. All they know how to do is beg. And you give it to them, trying to win their friendship. And
what are they good for? And then they stand there in an orange suit and you drop to your knees, “(crying
sound) He didn’t do anything, he didn’t do anything.” Yes, he did do it. And, you need to have an orange suit
on too (laughter, clapping).
So, ladies and gentlemen, I want to thank you for the award (big laughter) and giving me an
opportunity to speak because, I mean, this is the future, and all of these people who lined up and done,
they’ve got to be wondering what the hell happened. Brown V. Board of Education, these people who marched
and were hit in the face with rocks and punched in the face to get an education and we got these
knuckleheads walking around who don’t want to learn English (clapping) I know that you all know it. I just want
to get you as angry that you ought to be. When you walk around the neighborhood and you see this stuff, that
stuffs not funny. These people are not funny anymore. And that’s not brother. And that’s not my sister.
They’re faking and they’re dragging me way down because the state, the city and all these people have to pick
up the tab on them because they don’t want to accept that they have to study to get an education.
We have to begin to build in the neighborhood, have restaurants, have cleaners, have pharmacies,
have real estate, have medical buildings instead of trying to rob them all. And so, ladies and gentlemen, please,
Dorothy Height, where ever she’s sitting, she didn’t do all that stuff so that she could hear somebody say “I
can’t stand algebra, I can’t stand, and “what you is.” It’s horrible.
Basketball players, multimillionaires can’t write a paragraph. Football players, multimillionaires, can’t
read. Yes. Multimillionaires. Well, Brown vs. Board of Education, where are we today? It’s there. They paved
the way. What did we do with it. The white man, he’s laughing, got to be laughing. 50 percent drop out, rest of
them in prison.
You got to tell me that if there was parenting, help me, if there was parenting, he wouldn’t have
picked up the Coca Cola bottle and walked out with it to get shot in the back of the head. He wouldn’t have.
Not if he loved his parents. And not if they were parenting! Not if the father would come home. Not if the boy
hadn’t dropped the sperm cell inside of the girl and the girl had said, “No, you have to come back here and be
the father of this child.” Not, “I don’t have to.”
Therefore, you have the pile up of these sweet beautiful things born by nature raised by no one. Give
them presents. You’re raising pimps. That’s what a pimp is. A pimp will act nasty to you so you have to go out
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and get them something. And then you bring it back and maybe he or she hugs you. And that’s why pimp is so
famous. They’ve got a drink called the “Pimp†something.” You all wonder what that’s about, don’t you? Well,
you’re probably going to let Jesus figure it out for you (laughter). Well, I’ve got something to tell you about
Jesus. When you go to the church, look at the stained glass things of Jesus. Look at them. Is Jesus smiling? Not
in one picture. So, tell your friends. Let’s try to do something. Let’s try to make Jesus smile. Let’s start
parenting. Thank you, thank you (clapping, cheers)
• Cornel West comments on Bill Cosby controversy on National Public Radio:
Tavis Smiley (May 26, 2004)
TAVIS SMILEY, (host): From NPR in Los Angeles, I’m Tavis Smiley.
Every now and again, a major celebrity speaks frankly enough on some aspect of American society to
kick up a firestorm of criticism and heated discussion. Well, it’s happened again. Recently, comedian Bill Cosby
got serious at a gala commemorating the 50th anniversary of Brown v. Board in Washington, DC. Dr. Cosby
made a series of critical comments about some of the poor in African†American communities. He cited the
epidemic of out†of†wedlock births and said people used to be ashamed. Nowadays a woman has eight children
with eight different husbands or men, or whatever you call them now. He also commented on Africanâ€
American literacy and prison rates. Our regular commentator Cornel West joins us now to comment on Mr.
Cosby’s comments.
Cornel West, how you doing, man?
CORNEL WEST (NPR Commentator): Always a blessing, my brother.
SMILEY: This story has been fascinating to follow, because it’s one of those stories, as we say in the
media, that has legs. This story has not died. It happened over a week ago and it’s still being talked about. In
fact, Bill Cosby is on our PBS TV show tonight to address this for the first time on television. What do you
make, though, of what Dr. Cosby had to say?
WEST: Now I think it’s very important, though, Tavis, that we put it into context of who Bill Cosby is,
what he’s done. He’s got a track record of over 45 years supporting black people, black dignity. He gives money
behind the scenes and I actually have been in contexts in which he’s done free shows for community centers
and working with individual families. And so it’s very important to keep in mind the ways in which he
contributes in both telling the truth as a spokesperson and artist and also contributes money, resources, and
so when I heard this, I said what he’s doing is acknowledging the humanity of black people.
Each one of us as human beings have the freedom to make certain kind of choices. There might be
limited options, but we’re free not to hate, we’re free to be decent, and this is true across the board. Now of
course it’s true we want to talk about personal responsibility in regard to George Bush, in regard to corporate
elites, but we also want to talk about personal responsibility in regard to our cousins.
SMILEY: Why do you think his comments struck such a nerve? Why such a stir in black America?
WEST: Well, I think because, one, there is a reluctance that, you know, black people don’t want to air
dirty laundry. We don’t want to speak certain painful truths to each other. As long as we do it out of love, we
need to do it, and there’s no doubt in my mind when you look at who Cosby is, where he comes from in
Philadelphia, that he’s speaking out of great compassion and trying to get folk to get on the right track. He’s
trying to speak honestly and freely and lovingly, and I think that’s a very positive thing.
SMILEY: Back to the notion that you raised, Dr. West, of people being concerned inside of black
America that this is an airing publicly of dirty laundry, what about the notion that Mr. Cosby’s comments have
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been used and will, in fact, be used for some time to come now, by the right as ammunition against the black
poor?
WEST: We must be able to speak truths to ourselves lovingly, freely, critically, and recognize it right
when we use it. We know Bill Cosby is not on the right wing, he’s not Clarence Thomas. We know him to be
someone who over 50 years and 40 years in his artistic career to be in deep solidarity with the black people’s
struggle and people’s struggle as a whole, so that this issue of how things are used is always something that I
think we have to bear some suspicions of, because I think the right wing can use anything. They use Jesus, they
use anybody, anything.
SMILEY: You think that Mr. Cosby’s comments, for some, come across as††as a matter of fact, let me
just quote one of our commentators. I saw a piece in The New York Times about this story, and one of our
regular commentators you and I know both well, Michael Eric Dyson, referred to Dr. Cosby’s comments as
“classist, elitist and rooted in generational warfare.”
WEST: Yeah. Well, you know, I love Brother Dyson very deeply. Dyson is usually correct about 95
percent of the time, but I’d have to look at what the context was of what he said, but if that’s all he said, then I
don’t think he’s right.
SMILEY: Right.
WEST: I disagree with my dear brother, lovingly. I think that it is true that those of us of the older
generation do recognize that there has been a shift on the younger generation because they’re up against so
much. They have fewer relations with fathers, with loving significant others and so forth, and so that
generational shift is a real one. It’s the distance between Curtis Mayfield and whoever they got to offer. Ain’t
no Curtis Mayfield among the younger generation, you know what I mean? So that we recognize that a shift is
taking place, but we also recognize the heroic action of the younger generation. I think Bill Cosby would be the
first one to say that.
But I think the important thing is, it’s not simply defending Bill Cosby, it’s defending the truth and the
way in which he has been willing to speak the truth for a long time, and when he speaks the truth, it’s the truth
about poor black people, about the black middle class, it’s the truth about American elite, it’s the truth about
American imperialism. The truth is bigger than all of us.
SMILEY: Of course, Mike Dyson will have his say tomorrow on this program in his commentary about
what he meant by what he said in The New York Times with regard to Dr. Cosby’s comments. Let me close our
conversation, Cornel West, by asking you whether or not it is just difficult, if not impossible, for anyone of the
stature in black America of Bill Cosby to say anything critical about African†American people in a public space?
WEST: If you love black people, you’re going to tell black people the truth, and the truth sometimes is
going to be critical.
SMILEY: I close our conversation, Dr. West, quoting a great philosopher who once said to me, “Tavis,
you can’t lead the people if you don’t love the people, and you can’t save the people if you won’t serve the
people.” That said to me by one Cornel West. You might have heard of it.
WEST: Whether or not††I think that’s both biblical as well as just truth. You know, if you love and serve,
you [sic] bearing witness. That’s all you can do in space and time before you meet your maker, brother.
SMILEY: Cornel West, professor of religion at Princeton and the author of the forthcoming Democracy
Matters, a follow†up to the best†selling Race Matters.
As always, Cornel West, a delight to talk to you, sir.
WEST: Always a pleasure. Stay strong, now, man.
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• Bill Cosby on his controversial comments to the African†American community
on National Public Radio: Talk of the Nation (July 7, 2004)
LYNN NEARY, (host): This is TALK OF THE NATION. I’m Lynn Neary in Washington, sitting in for Neal
Conan.
Bill Cosby is among that rarified group of artists and entertainers who transcends celebrity to become
national icons. And from that lofty pinnacle of success, Cosby has always preached about the importance of
education and the need for strong parenting. And that, says Cosby, is what he was continuing to do during two
recent appearances when remarks he made set off a firestorm of debate. In May, during a speech marking the
50th anniversary of Brown vs. The Board of Education, Cosby had harsh words for kids and parents in some of
the nation’s poorer neighborhoods.
NEARY: Though he’s been castigated in the media for his remarks, Bill Cosby hasn’t backed down and
even repeated some of his criticisms during a more recent appearance at a Rainbow/PUSH conference in
Chicago. Later in the show, we will meet some teachers who are dealing with the problems Mr. Cosby has
brought up. But first, Bill Cosby himself. Mr. Cosby, thanks so much for being with us today.
Mr. COSBY: Good afternoon.
NEARY: I wanted to ask you first, what motivated those remarks? What is it that you are seeing that
you feel has to be faced, needs to be confronted?
Mr. COSBY: We had a great evening, Brown vs. The Board of Education and I was there to accept the
award on behalf of Mrs. Cosby, and I looked up in the balcony and I saw the elders who were responsible for
the work done against the lawyers who wanted to win the case for the board. And I started to think that this
was a time when it wasn’t about jumping over a bar or running faster than someone or knocking someone out
or stealing bases or playing football. This was about historically black college†educated lawyers, along with
others, going after racism in the United States and knocking it over with their brains.
And so we’re talking about educated people going up against educated people on the Board of Ed.,
Topeka, Kansas, winning with their brains. And then 50 years later in Washington, DC, I’m looking at, in the
lower economic area, a 50 percent drop out of the African†American male from high school. I’m looking at 65
percent of the incarcerated African†American male illiterate. I’m looking at 70 percent of the teen†age
pregnancy is the African†American female. And I’m realizing that there’s a great deal of racism. We take that†â€
we all know that. But then again, there’s a time when we have to turn around the mirror and look at ourselves
because self†empowerment has to do with education, it has to do with knowing English, your sciences, your
math and also history, which is something that’s very, very important and should be given in the home as well
as the classroom.
NEARY: I want to ask you about that in one second. […] Here’s what I’m†the question I have, and that
is if the kids, the children you’re talking about don’t speak proper English, if they’ve forgotten the legacy of the
civil rights movement, the importance of Brown vs. The Board of Education, and if they don’t care about school
or their own education, who is to blame for that? Who do you place the blame on?
Mr. COSBY: As African†Americans, we, way, way back, which a lot of the young people like to call “back
in the day,” if we look at shotgun houses in Mississippi and mothers with candlelight getting a child to read
while ducking when they hear the sound of hoof beats, if we look at Frederick Douglass, who bartered to learn
English from the white kids who were going to school, we have always been in this underclass, underdog role,
a group of people who’ve overachieved many, many, many of us.
And certainly, one would look at the playing field, at least in a city, to understand that what is not
given to us we have to take. And the behavior that I see in many, many people, you must understand, I don’t
know how long ago it was that somewhere the idea I think started in Oakland, California, that our children, our
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children†I don’t remember white children saying it†our children said they wouldn’t live past the age of 25. This
is not a good idea.
NEARY: Now I know you’ve been very critical of the way many kids now are being parented. You’re
very critical of the parents and the role they’re playing in this. One thing I was wondering is, it seems to me
that if some of these parents may themselves have been failed by school or failed by their own parents. I
mean, how do you break the cycle when there’s a terrible cycle of ...
Mr. COSBY: OK. I believe that this is epidemic. If 55 percent of the people in your apartment building
have smallpox, well, what are you going to do? If 70 percent of the people in your building have tuberculosis,
what are you going to do? Somewhere you have to say, ‘Stop.’ Somewhere you have to say, ‘We want this
building to be cleaned out.’
NEARY: Who says stop? Who’s responsible for saying ...
Mr. COSBY: Every person there because you have people†parents who are very, very successful. I
mean, we take it for granted, I do anyway, that what I’m talking about is not all of them. If I say 55 percent or
50 percent, then it means that. It doesn’t mean every one. Therefore, in the neighborhood, there are things
that we hear. We hear that our children, the ones that study, are told that they’re acting white.
NEARY: Hmm.
Mr. COSBY: And therefore †I mean, so you say to a kid like this, ‘Have you ever bothered to ask them,
“What is acting black? What is their plan?”‘ To me, many of these people happen to be enemies of themselves
and we must stop this because the children should be guided. Now if the parents happen to be children also,
then they, too, have to be guided. But I think a great deal of it is we have to say stop somewhere. Rallies have
to be held within the neighborhood. Our people can do this but they have to start. […]
• Michael Eric Dyson discusses his new book, Is Bill Cosby Right? Or Has the Black
Middle Class Lost Its Mind? On National Public Radio: Talk of the Nation
(May 3, 2005)
NEAL CONAN, (host): This is TALK OF THE NATION. I’m Neal Conan in Washington. Last May, Bill Cosby
hurled an explosive idea into the African†American community. Whether it was a lightning bolt or a hand
grenade depends on who you ask. The scene was a Washington, DC, gala celebrating the 50th anniversary of
the landmark Supreme Court decision Brown vs. Board of Education. Before an audience of accomplished civil
rights leaders, Cosby delivered a scathing attack on the subculture of black poverty, in which he blamed black
parents for the poor performance of their children.
A year later, people are still talking, still debating who bears responsibility for problems in black
communities. Many applaud Cosby for having the courage to tell it like it is. He’s also been derided as a traitor
to his own people. Last July, Bill Cosby appeared on this program and explained what was going through his
head on that evening, when the focus was on the fight to end desegregation.
(Soundbite of previous program): Dr. WILLIAM H. COSBY: And so we’re talking about educated people
going up against educated people on the Board of Ed, Topeka, Kansas, winning with their brains. And then, 50
years later, in Washington, DC, I’m looking at, in the lower economic area, a 50 percent dropout of the Africanâ€
American male from high school. I’m looking at 65 percent of the incarcerated African†American male
illiterate. I’m looking at 70 percent of teen†age pregnancy†the African†American female. And I’m realizing that
there’s a great deal of racism. We take that†we all know that. But then again, there’s a time when we have to
turn around the mirror and look at ourselves.
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CONAN: Now a new book challenges Cosby’s conclusions. It’s called Is Bill Cosby Right? Or Has the
Black Middle Class Lost Its Mind? Michael Eric Dyson is the author, […] professor of humanities at the
University of Pennsylvania. He joins us from our bureau in New York City. Nice to have you back on the
program.
Professor MICHAEL ERIC DYSON: Always good to be here, Brother Neal.
CONAN: Let’s start with the title of your book, which†you really see this as evidence of a class divide in
the black community: Is Bill Cosby Right? Or Has the Black Middle Class Lost Its Mind?
Prof. DYSON: Absolutely. I think that Bill Cosby is a lens unto a larger landscape of social and political
struggle and arguments in black communities that have been taking place for more than a century. I see his
divisive comments as a reflection of the bitter, seething politics of disdain for poor people among the more
monied and the more privileged of black people. And so the poor folk are subject to vicious forms of assault by
people with power, with money, with visibility and the like. It is not to suggest that poor people cannot be
criticized. I have no romantic investment in black poor people, having been one myself. The point is, to what
degree do we use our bully pulpits to assault the vicious contexts of white supremacy, economic inequality,
social injustice, black bourgeois capitulation and seduction by their own privilege, their own material wealth,
vs. the best of our black leaders and intellectuals who have always remembered it’s a ‘both†and’?
Even as you speak about personal responsibility, you link that personal responsibility to its possibility
of realization in a culture that either enables you to do better or puts its foot on your neck and keeps you from
rising.
CONAN: Now this divide, you point out, is nothing new. It goes back to, well, the days right after
slavery, for one thing.
Prof. DYSON: No doubt. Absolutely. You had a notion of racial uplift, where the privileged, elite, what I
call the Afristocracy, were being, you know, surveilled by the white people of the time. And the white folk of
the time were putting pressure on the black elite, both directly and indirectly. The direct pressure was: ‘Prove
to us that you are a people worthy of freedom.’ How hypocritical that was, since they had been enslaved for
no other reason than their color. The more implicit one and explicit one, however, was about the relationship
to poor people. The poor among you are somehow bringing the race down. The black middle class felt that ‘If
we could just bring better behavior patterns to these poor black folk, the white folk would treat us better and
we could prove to them that we were worthy of receiving the freedom that every other white person expects
at birth.’
So there’s a tremendous tension politically going on there that leads the black people who are in upper
echelons and elite of African†American culture to somehow point out the faults and failures of the poor. And
what I think Cosby did was nothing more than the 21st update of that ancient tradition.
CONAN: And some of the issues, you point out, are exactly the same: how people dress, how people
talk, how people behave.
Prof. DYSON: Exactly. How people dress†black people walking down the street shooting the agate, as
they said†a black style of promenading down the avenue†the more black people dress well, the more white
people resented them. The flashy styles of the working class and the working poor were an especial offense to
the more elite and elegant styles that black people favored among their own echelons. So the point is that the
way they dress was problematic, and then the way they spoke. Did they speak the king’s English to the queen’s
taste, or are they speaking some kind of black linguistic derivation, some kind of, you know, terrible form of
black discourse that does not comport well in the broader, whiter society?
And finally, you know, how they talk and how they speak to one another and how they name their
own children, I think, was a big problem a hundred years ago, certainly 75 years ago, and it’s a huge problem
now.
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CONAN: Yeah. Well, that’s what Cosby said in part of his remarks†the names: Shaniqua, Taniqua,
Mohammed, he said.
Prof. DYSON: Well, yes. And he said, ‘Shaniqua, Taliqua and Mohammed and all that crap, and they’re
all in jail.’ Lest you believe that Mr. Cosby was engaging in etymological derivation of Annichi (ph) and Kai (ph),
he was trying to, as the young people say, hate. He was assaulting people for how they named their children,
what names they gave them. And I think that’s none of my business. If your mother wants to name you
Shaniqua, Taliqua or Mohammed, that’s her business. The question is, do we perpetuate a legacy of bigotry
that disallows us to appreciate the people behind the names? Nobody’s going to ask Oprah Winfrey†and trust
me, Oprah ain’t no regular name. Nobody’s going to ask Shaquille O’Neal; Shaquille ain’t no regular name.
Nobody’s going to demand Condoleezza†’Excuse me, I ain’t met another person named Condoleezza.’ It’s a
distinct and unique name. Where is it derived from? Her mother took it from her love of music. It was a
musical signature. That’s like naming your kid Basso Profundo. I ain’t mad at what you name your kid; it’s what
you answer to and how you treat people.
So we learn to love Condoleezza and Oprah and Shaquille, and as a result of that, we begin to accept
the people behind the names. The bigotry of assuming that poor people should change their names, as
opposed to challenging the society that assigns bigotry to them, is, I think, misled and ill†informed.
CONAN: Well, one of the things Mr. Cosby was arguing, though, is if you are going to challenge that
society, it’s fine to speak the language that you do among your group, but if you’re going to challenge the
dominant society, you’d better be able to speak its language.
Prof. DYSON: Well, I have no problem with that, but let me complexify it, to create a word. The reality
is that I saw, maybe within the last year, white, elderly people on TV, with a commercial: ‘Where you at?’ ‘Oh,
I’m just chillin’ here with my peeps.’ Now white commercial culture has reaped extraordinary benefit from the
reproduction of these black symptoms of language, their black style, the black vernacular. So it’s all right to be
appropriated for commercial culture for the purposes of corporate America, but the very black people who
generate the language are getting dissed.
And let me tell you something: Mr. Cosby has been an ebonicus laureate of black America: ‘I don’t
know how to talk like these people.’ Oh, I disagree. You speak Ebonics in significant fashion: ‘Da corner,’ not
‘the corner.’ Talking about ‘I don’t be no,’ ‘the Jell†O and the puddin’ pie.’ You’re speaking Ebonics. Fat Albert,
Dumb Donald, Weird Harold: ‘I’mba goin’ba beba backba’††that is linguistic creativity that derives from the
black language styles and patterns of our culture.
Now, of course, we want to be able to cold switch, as the sociologists say. When you’re among your
peeps, ‘Whassup? How ya doin’?’ When you’re in corporate America, when you want to speak the king’s
English to the queen’s taste, do so. But the point is, don’t believe that doing one makes you better than doing
the other. It means that you understand that certain standards of appropriate language are acceptable and,
therefore, desirable in one situation vs. another. But don’t get it twisted, as the young people say. Millions of
dollars†indeed, billions of dollars†have been made off of WB network, UPN and hip†hop culture, where the
black language styles that Mr. Cosby has cast aspersion against have created an industry that has been
extraordinarily successful and certainly deeply influential. […]
I think what’s interesting is that, of course, we have personal responsibility, but personal responsibility
is but one slice of the pie of responsibility. What about moral responsibility? What more about social
responsibility? Personal responsibility is key. When you go to any church on any Sunday, any temple, any
mosque, they are repeating what Cosby said, hopefully in more balanced and judicious fashion.
But I am an ordained Baptist minister myself. I know that Sunday in and Sunday out, black folk are
morally remonstrating against the terrible, diseased, pathological practices that we perpetuate. We call
ourselves to accountability for them. We say that they are wrong. We say, ‘Stop doing it.’ We speak out against
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it. But at the same time, we judge those characteristics in relationship to a larger culture, when at the same
time it’s being hypocritical, because if the culture only jumps on black people for some of the same stuff that
goes on in white culture, but they only point it out when it goes among black people†when you talk about
licentiousness, my God, Paris Hilton has a porn tape out and her ratings are shooting through the ceiling. She is
a very rich woman who comes from tremendous money, and yet she exhibits some of the same characteristics
that Mr. Cosby attaches to poor people.
Now let’s be honest. Vulnerable, poor people are more subject to their own vices; that is that they
will††their vices will count more negatively against them than rich people, because they don’t have the money
to cushion them. We can all acknowledge that. But let’s not pretend that there’s a moral superiority to rich
people vs. those who are poor.
[…] But I think that my own response has not been ‘Oh, it’s the white man, oh, it’s the white man, oh,
it’s the white man.’ Because the best of black leadership has always had a twin focus. On the one hand, from
Frederick Douglass to Booker T. Washington to Marcus Garvey, across ideological spectra, from Dorothy Height
on one side and Mary McLeod Bethune to more conservative leaders†I’ve mentioned Mr. Booker T.
Washington and others†the reality is that African†American leadership has always understood that you must
emphasize personal behavior and responsibility while at the same time speaking about social injustice and
structural barriers.
The privilege that you have to call a radio station today in the freedom of your home in Detroit, which
is my hometown, from where I hail, and be able to engage in a conversation in a multicultural America is the
product of people who struggled against racist barriers. So the very privilege to lament the persistence of a
rhetoric against white supremacy has benefited you, has been made possible, by the very folk that you now
call into question. That’s beautiful, but understand that paradox.
Number two, I’m not trying to suggest that we got to blame the white†it’s not either blame the white
man or, on the other hand, talk about what black folk themselves ought to do. Because you said already you’re
tired of the marching, you’re tired of the suing and you’re tired of the ‘Pick yourself up by the bootstrap.’ The
reality is that, when you speak about a poor person†let’s give you one example. If a mother is working two
jobs, she doesn’t have flex time to be able to go pay attention to her kid at the PTA as much as she wants, or,
when that child is sick, to be able to address that child, because they are part of what we now know as the
working poor: people who work 40 and 50 hours a week and yet can barely, if ever, make it above the poverty
level.
So the ability to say, ‘Well, I don’t want to just either blame the white man or talk about personal
responsibility’ misses that mother. That mother is caught in a punishing network of exportation of jobs, of
downsizing, of outsourcing, of the fleeing of capital from our post†industrial urban centers, and, at the same
time, the suspicion and bigotry of those who are different. So it’s not a straw†man argument about the white
man; that’s ridiculous. That’s old school. What is new school, the newfangled racism, appears when if your
name is Shaniqua you can’t even get called in for a job interview.
So what I’m trying to lay out here is the way in which we need people of responsible leadership†yes,
like myself; yes, like Mr. Cosby†to come up with much more enlightened, insightful analyses of the problems
to begin with, and then hold the correct quarters of the culture responsible, both within black America, but
especially outside. I’m not yet willing to give up on making the larger society responsible.
Let me end by saying this: If Martin Luther King Jr. had approached it the way you suggest†‘Well, how
far are white folk gonna go?’ †he would have never marched in the street. You would have never had a voting
right in the South. We would have never had the Civil Rights Act passed and, subsequently, we would never
have had the Fair Housing Act passed. If Martin Luther King Jr. had surrendered his responsibility by saying,
‘White resistance is so huge that we will never be able to secure black freedom,’ we would have never had the
privileges we have now. If you want freedom, it’s going to cost you. It’s going to cost you intellectually, it’s
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going to cost you spiritually, it’s going to cost you emotionally and it’s going to cost your sideline, spectatorial
ability. […]. You can’t just indict those who lead by example and who are obviously doing so. You must take
responsibility in your community, in your church, in your neighborhood, and, daresay, in your family, and make
sure that things are different than what they have been in the past.
CONAN: You’re a preacher in your spare time? It’s hard to believe.
(Soundbite of laughter), CONAN: What about […] that what’s different now […] is that white people are
listening. You write, ‘Perhaps the most damaging consequence of Cosby’s war on the poor is that they’re left
less defended and much more vulnerable to rebuff, even by folk††policy analysts, public policy†makers,
politicians††who might be sitting on the fence wondering what to do about the poor and who now get a huge
cue from Cosby that it’s just fine to leave them to sink or swim for themselves.’
Prof. DYSON: Yes.
CONAN: Part of your concern seems to be that, yes, white people were listening.
Prof. DYSON: Exactly right. And they’re listening to a conversation that they’re not really hip to. You
know, when you look at your favorite soap†maybe you’re looking at “Desperate Housewives”; maybe you like
“24” †and you’re sitting there and your friend comes over who doesn’t†you know, is not attuned to it, and
you’re trying to explain to them what Jack did; ‘Who’s Jack?’ You’re trying to tell them what happened. You’ve
got to break down the characters. If they make a moral judgment based upon that one scene, they don’t know
the whole story. And I’m telling you, many white folk, bless their hearts, know the whole story, but many of
them don’t. They’re not familiar with the major characters. They don’t know the dramatis personae who have
populated the great drama and struggle for black justice.
So now they get in on a conversation that’s been going on for a long time among black folk, who are
speaking shorthand, and they don’t quite get it. So now public policy†makers who hear Mr. Cosby assaulting
the poor and saying that they are responsible begin to change their mind. They say, ‘Well, we thought we had
to help them because we had to indict our own social practices for their failure to be able to assist these
people. Now, as Mr. Cosby is saying, they gotta do it themselves. So maybe we shouldn’t put this extra money
into this program. Maybe we should cut Head Start. Maybe we shouldn’t support the educational institutions
and after†care programs and after†school programs.’
And I’m telling you, that’s deleterious and pernicious. And let me give you one example. I was reading
the paper down in Atlanta; the folk down there said, ‘Look, we were so inspired by Mr. Cosby, now we’re going
to have billboards in poor communities and the ZIP codes where we know criminals are coming from, not to
reach out to them to say, “Let’s have better education,” not to reach out to them to suggest that we should
intervene earlier to prevent them from going to prison, but to put up billboards to warn them: “Many criminals
come from your ZIP code, and if you’re not careful, we’re going to put you in jail, too.”‘ That’s a destructive
consequence on a public policy as a direct result of what Mr. Cosby said.
[…] Mr. Cosby was especially outraged by, let’s call him, Junior or Pooky or Taliq, you know, the guy
who’s out there who stole some pound cake, $5 or a Coca†Cola. And he said, ‘We get mad when the police
shoot him, and why was he stealing the pound cake in the first place?’
Well, let me remember, Mr. Cosby went to court with Martha Stewart. Hmm. He didn’t come out of
that courtroom and you say, ‘You know what? White billionaires are going to ruin the world because despite
their enormous wealth, their greed leads them to try to lie about a transaction over $220,000. Now that’s
irresponsible, and that’s immoral. And according to the government, it was illegal.’
Now we know Martha Stewart got railroaded because she’s a woman, ‘cause guys play the ...
(unintelligible) every day and the numbers every day, and they do this every day. But here’s my point: If you’re
mad at irresponsibility, you’ll be mad at irresponsibility wherever you see it manifest, whether it’s the rich or
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the poor. To focus on the poor is to portray a class anxiety that is historically rooted in black communities
about, ‘How will these white people look at us?’
What did Cosby say in his speech? (Imitating Cosby) ‘The white man, he’s got to be laughing. He’s
laughing at us.’ (In normal voice) Now Mr. Cosby says he doesn’t care about what white people say, but
obviously his own speech betrays the reality that he feels that white folk are looking at black people, and he is
ashamed that white people will look at us and see what they see.
Now when you talk about social morality vs. individual morality†look, you’re born in a culture that
teaches you good or bad things. Dr. Kenneth Clark died recently, and we celebrate his life because he talked
about the degree to which the larger society forced the young, black people to feel inferior about themselves.
It’s not an individual responsibility; they learned from a culture. They got a cue from a broader culture that
they were not worth anything. So their individual self†esteem was shaped in a culture that gave them cues
about how they were inferior as black people. So there’s a more dynamic relationship, and we learn to value
ourselves in a culture that teaches us to do so. But if it teaches us that we’re ugly because we have dark skin,
ugly because we have broad noses, we might treat our skin like Michael Jackson and bleach ourselves in an
ocean of whiteness seeking the approval of a dominant culture. And yet we hate ourselves.
So my point finally is that when we speak about the poor people, I’m saying, when you say they spend
a lot of money on hubcaps and bling†bling as opposed to doing the right thing, the consumer culture of black
people is much more complex than the stereotype Mr. Cosby presented. I talk about in my book a study, a
systematic, empirical, anthropological, ethnographic study, that says that young black consumers are much
more complex. First of all, they’re told from the day that they’re born that they can’t just waste their money.
So they end up spending their money not only on things they want, but on things for the family because they
realize they have to have a communal ethic at the heart of their consumption, so they must share what they
get.
Now that’s against the grain and the perception of young people. I’m suggesting to you when you
break down the numbers and you look behind the story, yes, it is necessary for us to hold each other
accountable, including the poor, but if we stigmatize the poor and isolate them as if they are somehow morally
alienated from the larger American society†rich folk got as many problems as poor folk. There are rich men
who cheat on their wives†Hello?†there are rich men who stray from their families, who mistreat their
children, who do all kinds of nefarious things. Ken Lay has got a regular name, and yet he has problems with
Enron. All of these corporate thieves who have ripped off millions and billions of dollars collectively are people
who are in the upper echelons of American culture, and yet they have reprehensible moral habits. They’re
greedy. They spend money on stuff they want. They want bling†bling, too; it’s just not as evident.
So I’m saying, when we’re willing to hold everybody accountable for their relative responsibility then
we can speak about how the poor have to be pointed out. Until such time, to jump on the poor, especially for
Mr. Cosby, is to, I think, perpetuate a stereotypical vision of poor black people that is not borne out by the
facts or empirical investigation. […]
Here’s the thing that I think is very interesting. The last point […] is an index of what people now talk
about as white privilege. To have the leisure to isolate your child and to†this is a detrimental ideal in the
culture †you can then somehow cushion the impact psychologically by removing them from that context is
something that many people of color†Latinos, Native Americans, African†Americans and Asians†can’t do
because the culture is shot through with vicious images of black people, sometimes, to be certain, emanating
from black culture itself.
So now when you turn on television††the study just done the other day††black people watch more
television than anybody else. So we’re getting the images that are perpetuating a negative, vicious stereotype
and a legacy of self†hatred that we cannot somehow remove ourselves from.
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So what I’m suggesting then is that the culture in which we live has to be talked about. We have to
hold ourselves accountable for what expose our children to. But at the same time, let’s not pretend that
individual autonomy and responsibility can somehow change structural features in the culture. I don’t care
how well you behave. If the company that used to employ people in your town leaves, all your good behavior
won’t stop exportation of jobs to Mexico or Indonesia to seek markets where they can pay people criminally
low wages and yet deprive you of a standard wage. I’m telling you that good behavior will not solve the
fundamental economic inequality of school systems that spend twice the money on suburban schools as they
spend on inner†city schools. Those are the kind of realities that good behavior will never solve. I’m not arguing
against good behavior; I’m suggesting let’s not exaggerate the role of good behavior in the solution of
problems that are essentially beyond individual merit or initiative. […]
I actually addressed this is my book, generically, this notion of acting white. First of all, the notion of
acting white got introduced into the culture in 1986 with a study by two anthropologists of one single school, I
believe, in Washington, DC. Since that time, it has been replicated to the point that it has become something
like the academic version of an urban legend. There have been many longitudinal studies since then, over
space and time, that have tracked students†thousands of them, tens of thousands of them†who are black, and
it has concluded that this notion of acting white is a very specific phenomenon usually shown in schools where
white students outnumber black students, where they have access to AB courses††AP courses, advanced
courses, where black students don’t. And as a result of that, the resentment of the black student of being†â€
getting closed out is that they have been assigned†that is, those white students†a kind of privilege that they
are kept from. So this acting white phenomena is judged to be something that’s terrible because white folk get
something that black folk can never get.
The point is that anti†intellectualism is an American disease. Richard Hofstadter wrote a book in 1963
that said when we made the choice of, you know, Eisenhower over Adlai Stevenson, that betrayed the
essential unintelligence, or at least the anti†intellectualism, of the American populace. We look at it now.
George Bush got major kudos in the last election and the first one for being anti†intellectual, despite going to
Harvard and Yale. His elitism was muffled by and covered by this notion that he was an everyday guy with
whom you could share a beer.
So anti†intellectualism is a problem in black communities because it’s a problem in America. The antiintellectual
attitudes that I confront as a professor are deep and pervasive in every culture. To single them out
among black people I think is especially destructive, because now it signifies everybody else is smart and wants
to go to school, but black folk aren’t. I cite in the book studies that have been done both anthropologically and
ethnographically and empirically that suggest that black students are just as interested in achievement as
white students, that black parents more than white parents discuss the day’s events with their children, that
black students derive significant recognition from being called ‘smart’ and that they want to go to college in
equally impressive numbers as their white peers.
This notion of acting white has taken on a life of its own. […] that disease of not wanting to appear to
be a chump or soft because you are intelligent and smart is, trust me, not something that can be segregated
among black people. That’s an American problem that we’ve got to confront. […]
...What a profound internalization of racism to assume because you’re born black you know black. I
have to warn students all the time just ‘cause you were born with black skin doesn’t mean you know all the
achievements of black people and all the intricacies and interstitial problems we’ve had. So my point is let’s
study our culture. And I think that it’s a beautiful thing that you have that desire. I think that what you can do,
first of all, is become educated about the diversity of black people, that we’re not a monolithic community,
that we don’t have one ideal. There are many ideals, some of which we†you know, so that different axes are
important in black community: ideology, sexual orientation, geography. Those things make a big difference as
to what you believe.
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You know, I’d rather have a progressive Jewish brother and sister on the Supreme Court than a guy like
Clarence Thomas who bears no responsibility to those black people. Now that’s me, so that I have to
interrogate and ask questions about the ethical content of your identity, not the color of your skin.
Now the final thing I think that many white brothers and sisters can do is, A, be educated about the
complexity of black culture, B, learn as much as you can about the actual ordinary lives of everyday black
people and, three, know more than one black person. I hear many white people say, ‘My black friend told me.’
Don’t rely on one black person whose your friend, even if its Michael Eric Dyson or Jesse Jackson or Al
Sharpton. Have a network of relationships where you begin to understand the internal differences and the
complex variations among black people so that you can understand. And, fourthly, have what Mr. Cosby, I
think, manifestly did not have that day: a compassionate outlook... […]
CONAN: Let me just wind up. It’s been a year now since Bill Cosby first made this speech. And, as you
point out, he’s not the first to point these things out and presumably not the last.
Prof. DYSON: Right.
CONAN: They got a lot of publicity because of who he is and where he said it. Has it been a useful
conversation?
Prof. DYSON: Well, I think it’s been useful to the degree that we’ve at least had to ask sharp questions
and interesting questions about what he said, why said it, the context in which he said it. So in that sense, yes,
it’s been an interesting conversation.
But sometimes when††you started off by saying, ‘Was it a hand grenade or a lightning rod?’ You know,
Timothy McVeigh had a point. Maybe the state is overreaching and imposing limits upon autonomous
individual citizens. But dadgum, the way you made your point was destructive and altogether evil. So I’m
saying that, yes, you might be throwing a hand grenade, Mr. Cosby, but are you really serving the ultimate
end? Because the ultimate end is not to beat up on poor people; I assume the ultimate end is to love them
compassionately into their best selves.
When I was a student at Princeton University, I went there†I didn’t go to an undergraduate Ivy League
school. My professor, Jeffrey Stout, every week marked my papers. I read books. He put red marks on my
papers. I came back the next week, I tried to get better. He was a renowned ethicist, but he pointed out to me
the things I did right every week. He says, ‘This is excellent. You did this well. However, this you didn’t do as
well. What can we do to make sure that the rest of what you wrote measures up to what you wrote here?’ So
he trained me in the virtue and the habitual recognition of excellence because I desired it, and he gave me the
sense of possibility that I could achieve it.
This is what we need: the virtue of patience and the courage to reach out compassionately to the poor.
There is a culture†wide assault and attack on poor people across the board, regardless of your color, especially
vulnerable, poor women of all races, especially black and Latino women and children. And I’m saying they
don’t need to have a foot pressed down harder on their neck; they need a hand. They need a hand up. They
need a hand††not a handout, but the ability†as Dorothy Day said, ‘I want to work toward a world in which it’s
easier for people to behave decently.’ That’s what I’m trying to do.
So in that sense, the conversation’s important because it’s older than Cosby, it’s younger than today’s
news and what we have to do is to make sure that we provide insights and context that allows people who
want to help those who are more vulnerable to reach out and do it in a productive fashion. […]
CONAN: Michael Eric Dyson, thanks very much.
Prof. DYSON: Thank you so much for having me.
CONAN: Michael Eric Dyson is the author most recently of Is Bill Cosby Right? Or Has the Black Middle
Class Lost Its Mind? He joined us from our bureau in New York. You can read an excerpt of Michael Eric Dyson’s
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book by going to our Web site, npr.org. And also there you can hear our previous interview with Bill Cosby
about his comments to the NAACP.
• “Blaming the Victim,” by William Ryan
Consider some victims. One is the miseducated child in the slum school. He is blamed for his own
miseducation. He is said to contain within himself the causes of his inability to read and write well. The
shorthand phrase is “cultural deprivation,” which, to those in the know, conveys what they allege to be inside
information: that the poor child carries a scanty pack of cultural baggage as he enters school. He doesn’t know
about books and magazines and newspapers, they say. (No books in the home; the mother fails to subscribe to
Readers’ Digest.) They say that if he talks at all—an unlikely event since slum parents don’t talk to their
children—he certainly doesn’t talk correctly. (Lower†class dialect spoken here, or even—God forbid!—
Southern Negro.) (Ici on parle nigra.) If you can manage to get him to sit in a chair, they say, he squirms and
looks out the window. (Impulse†ridden, these kids, motoric rather than verbal.) In a word he is
“disadvantaged” and “socially deprived,” they say, and this, of course, accounts for his failure (his failure, they
say) to learn much in school.
[…] What is the culturally deprived child doing in the school? What is wrong with the victim? In
pursuing this logic, no one remembers to ask questions about the collapsing buildings and torn textbooks, the
frightened, insensitive teachers, the six additional desks in the room, the blustering, frightened principals, the
relentless segregation, the callous administrator, the irrelevant curriculum, the bigoted or cowardly members
of the school board, the insulting history book, the stingy taxpayers, the fairytale readers, or the self†serving
faculty of the local teachers’ college. We are encouraged to confine our attention to the child and to dwell on
all his alleged defects. Cultural deprivation becomes an omnibus explanation for the educational disaster area
known as the inner†city school. This is Blaming the Victim.
Pointing to the supposedly deviant Negro family as the “fundamental weakness of the Negro
community” is another way to blame the victim. Like “cultural deprivation,” “Negro family” has become a
shorthand phrase with stereotyped connotations of matriarchy, fatherlessness, and pervasive illegitimacy.
Growing up in the “crumbling” Negro family is supposed to account for most of the racial evils in America.
Insiders have the word, of course, and know that this phrase is supposed to evoke images of growing up with a
long†absent or never†present father (replaced from †time to time perhaps by a series of transient lovers) and
with bossy women ruling the roost, so that the children are irreparably damaged. This refers particularly to the
poor, bewildered male children, whose psyches are fatally wounded and who are never, alas, to learn the trick
of becoming upright, downright, forthright all†American boys. Is it any wonder the Negroes cannot achieve
equality? From such families! And, again, by focusing our attention on the Negro family as the apparent cause
of racial inequality, our eye is diverted. Racism, discrimination, segregation, and the powerlessness of the
ghetto are subtly, but thoroughly, downgraded in importance.
The generic process of Blaming the Victim is applied to almost every American problem. The miserable
health care of the poor is explained away on the grounds that the victim has poor motivation and lacks health
information. The problems of slum housing are traced to the characteristics of tenants who are labeled as
“Southern rural migrants” not yet “acculturated” to life in the big city. The “multiproblem” poor, it is claimed,
suffer the psychological effects of impoverishment, the “culture of poverty,” and the deviant value system of
the lower classes; consequently, though unwittingly, they cause their own troubles. From such a viewpoint, the
obvious fact that poverty is primarily an absence of money is easily overlooked or set aside.
The growing number of families receiving welfare are [sic] fallaciously linked together with the
increased number of illegitimate children as twin results of promiscuity and sexual abandon among members
of the lower orders. Every important social problem—crime, mental illness, civil disorder, unemployment—
has been analyzed within the framework of the victim†blaming ideology. ...
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I have been listening to the victim†blamers and pondering their thought processes for a number of
years. That process is often very subtle. Victim†blaming is cloaked in kindness and concern, and bears all the
trappings and statistical furbelows of scientism; it is obscured by a perfumed haze of humanitarianism. In
observing the process of Blaming the Victim, one tends to be confused and disoriented because those who
practice this art display a deep concern for the victims that is quite genuine. In this way, the new ideology is
very different from the open prejudice and reactionary tactics of the old days. Its adherents include
sympathetic social scientists with social consciences in good working order, and liberal politicians with a
genuine commitment to reform. They are very careful to dissociate themselves from vulgar Calvinism or crude
racism; they indignantly condemn any notions of innate wickedness or genetic defect. “The Negro is not born
inferior,” they shout apoplectically. “Force of circumstance,” they explain in reasonable tones, “has made him
inferior.” And they dismiss with self†righteous contempt any claims that the poor man in America is plainly
unworthy or shiftless or enamored of idleness. No, they say, he is “caught in the cycle of poverty.” He is
trained to be poor by his culture and his family life, endowed by his environment (perhaps by his ignorant
mother’s outdated style of toilet training) with those unfortunately unpleasant characteristics that make him
ineligible for a passport into the affluent society.
Blaming the Victim is, of course, quite different from old†fashioned conservative ideologies. The latter
simply dismissed victims as inferior, genetically defective, or morally unfit; the emphasis is on the intrinsic,
even hereditary, defect. The former shifts its emphasis to the environmental causation. The old†fashioned
conservative could hold firmly to the belief that the oppressed and the victimized were born that way—”that
way” being defective or inadequate in character or ability. The new ideology attributes defect and inadequacy
to the malignant nature of poverty, injustice, slum life, and racial difficulties. The stigma that marks the victim
and accounts for his victimization is an acquired stigma, a stigma of social, rather than genetic, origin. But the
stigma, the defect, the fatal difference—though derived in the past from environmental forces—is still located
within the victim, inside his skin. With such an elegant formulation, the humanitarian can have it both ways. He
can, all at the same time, concentrate his charitable interest on the defects of the victim, condemn the vague
social and environmental stresses that produced the defect (some time ago), and ignore the continuing effect
of victimizing social forces (right now). It is a brilliant ideology for justifying a perverse form of social action
designed to change, not society, as one might expect, but rather society’s victim.
As a result, there is a terrifying sameness in the programs that arise from this kind of analysis. In
education, we have programs of “compensatory education” to build up the skills and attitudes of the ghetto
child, rather than structural changes in the schools. In race relations, we have social engineers who think up
ways of “strengthening” the Negro family, rather than methods of eradicating racism. In health care, we
develop new programs to provide health information (to correct the supposed ignorance of the poor) and to
reach out and discover cases of untreated illness and disability (to compensate for their supposed
unwillingness to seek treatment). Meanwhile, the gross inequities of our medical care delivery systems are left
completely unchanged. As we might expect, the logical outcome of analyzing social problems in terms of the
deficiencies of the victim is the development of programs aimed at correcting those deficiencies. The formula
for action becomes extraordinarily simple: change the victim.
All of this happens so smoothly that it seems downright rational. First, identify a social problem.
Second, study those affected by the problem and discover in what ways they are different from the rest of us
as a consequence of deprivation and injustice. Third, define the differences as the cause of the social problem
itself. Finally, of course, assign a government bureaucrat to invent a humanitarian action program to correct
the differences.
Now no one in his right mind would quarrel with the assertion that social problems are present in
abundance and are readily identifiable. God knows it is true that when hundreds of thousands of poor children
drop out of school—or even graduate from school—they are barely literate. After spending some ten thousand
hours in the company of professional educators, these children appear to have learned very little. The fact of
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failure in their education is undisputed. And the racial situation in America is usually acknowledged to be a
number one item on the nation’s agenda. Despite years of marches, commissions, judicial decisions, and
endless legislative remedies, we are confronted with unchanging or even widening racial differences in
achievement. In addition, despite our assertions that Americans get the best health care in the world, the poor
stubbornly remain unhealthy. They lose more work because of illness, have more carious teeth, lose more
babies as a result of both miscarriage and infant death, and die considerably younger than the well†to†do.
The problems are there, and there in great quantities. They make us uneasy. Added together, these
disturbing signs reflect inequality and a puzzlingly high level of unalleviated distress in America totally
inconsistent with our proclaimed ideals and our enormous wealth. This thread—this rope—of inconsistency
stands out so visibly in the fabric of American life, that it is jarring to the eye. And this must be explained, to
the satisfaction of our conscience as well as our patriotism. Blaming the Victim is an ideal, almost painless,
evasion.
The second step in applying this explanation is to look sympathetically at those who “have” the
problem in question, to separate them out and define them in some way as a special group, a group that is
different from the population in general. This is a crucial and essential step in the process, for that difference is
in itself hampering and maladaptive. The Different Ones are seen as less competent, less skilled, less
knowing—in short, less human. The ancient Greeks deduced from a single characteristic, a difference in
language, that the barbarians—that is, the “babblers” who spoke a strange tongue—were wild, uncivilized,
dangerous, rapacious, uneducated, lawless, and, indeed, scarcely more than animals. Automatically labeling
strangers as savages, weird and inhuman creatures (thus explaining difference by exaggerating difference) not
infrequently justifies mistreatment, enslavement, or even extermination of the Different Ones.
Blaming the Victim depends on a very similar process of identification (carried out, to be sure, in the
most kindly, philanthropic, and intellectual manner) whereby the victim of social problems is identified as
strange, different—in other words, as a barbarian, a savage. Discovering savages, then, is an essential
component of, and prerequisite to, Blaming the Victim, and the art of Savage Discovery is a core skill that must
be acquired by all aspiring Victim Blamers. They must learn how to demonstrate that the poor, the black, the
ill, the jobless, the slum tenants, are different and strange. They must learn to conduct or interpret the
research that shows how “these people” think in different forms, act in different patterns, cling to different
values, seek different goals, and learn different truths. Which is to say that they are strangers, barbarians,
savages. This is how the distressed and disinherited are redefined in order to make it possible for us to look at
society’s problems and to attribute their causation to the individuals affected....
Blaming the Victim can take its place in a long series of American ideologies that have rationalized
cruelty and injustice. […]
In late†nineteenth†century America there flowered another ideology of injustice that seemed rational
and just to the decent, progressive person. But Richard Hofstadter’s analysis of the phenomenon of Social
Darwinism shows clearly its functional role in the preservation of the status quo. One can scarcely imagine a
better fit than the one between this ideology and the purposes and actions of the robber barons, who
descended like piranha fish on the America of this era and picked its bones clean. Their extraordinarily
unethical operations netted them not only hundreds of millions of dollars but also, perversely, the adoration of
the nation. Behavior that would be, in any more rational land (including today’s America), more than enough
to have landed them all in jail, was praised as the very model of a captain of modem industry. And the
philosophy that justified their thievery was such that John D. Rockefeller could actually stand up and preach it
in church. Listen as he speaks in, of all places, Sunday school: “The growth of a large business is merely a
survival of the fittest. ... The American Beauty rose can be produced in the splendor and fragrance which bring
cheer to its beholder only by sacrificing the early buds which grow up around it. This is not an evil tendency in
business. It is merely the working†out of a law of nature and a law of God.”
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This was the core of the gospel, adapted analogically from Darwin’s writings on evolution. Herbert
Spencer and, later, William Graham Sumner and other beginners in the social sciences considered Darwin’s
work to be directly applicable to social processes: ultimately as a guarantee that life was progressing toward
perfection but, in the short run, as a justification for an absolutely uncontrolled laissez†faire economic system.
The central concepts of “survival of the fittest,” “natural selection,” and “gradualism” were exalted in
Rockefeller’s preaching to the status of laws of God and Nature. Not only did this ideology justify the criminal
rapacity of those who rose to the top of the industrial heap, defining them automatically as naturally superior
(this was bad enough), but at the same time it also required that those at the bottom of the heap be labeled as
patently unfit—a label based solely on their position in society. According to the law of natural selection, they
should be, in Spencer’s judgment, eliminated. “The whole effort of nature is to get rid of such, to clear the
world of them and make room for better.”
For a generation, Social Darwinism was the orthodox doctrine in the social sciences, such as they were
at that time. Opponents of this ideology were shut out of respectable intellectual life. The philosophy that
enabled John D. Rockefeller to justify himself self†righteously in front of a class of Sunday school children was
not the product of an academic quack or a marginal crackpot philosopher. It came directly from the lectures
and books of leading intellectual figures of the time, occupants of professorial chairs at Harvard and Yale. Such
is the power of an ideology that so neatly fits the needs of the dominant interests of society.
If one is to think about ideologies in America in 1970, one must be prepared to consider the possibility
that a body of ideas that might seem almost self†evident is, in fact, highly distorted and highly selective; one
must allow that the inclusion of a specific formulation in every freshman sociology text does not guarantee
that the particular formulation represents abstract Truth rather than group interest. It is important not to
delude ourselves into thinking that ideological monstrosities were constructed by monsters. They were not;
they are not. They are developed through a process that shows every sign of being valid scholarship, complete
with tables of numbers, copious footnotes, and scientific terminology. Ideologies are quite often academically
and socially respectable and in many instances hold positions of exclusive validity, so that disagreement is
considered unrespectable or radical and risks being labeled as irresponsible, unenlightened, or trashy.
Blaming the Victim holds such a position. It is central in the mainstream of contemporary American
social thought, and its ideas pervade our most crucial assumptions so thoroughly that they are hardly noticed.
Moreover, the fruits of this ideology appear to be fraught with altruism and humanitarianism, so it is hard to
believe that it has principally functioned to block social change. […]
We come finally to the question, Why? It is much easier to understand the process of Blaming the
Victim as a way of thinking than it is to understand the motivation for it. Why do Victim Blamers, who are.
usually good people, blame the victim? The development and application of this ideology, and of all the
mythologies associated with Savage Discovery, are readily exposed by careful analysis as hostile acts—one is
almost tempted to say acts of war—directed against the disadvantaged, the distressed, the disinherited. It is
class warfare in reverse. Yet those who are most fascinated and enchanted by this ideology tend to be
progressive, humanitarian, and, in the best sense of the word, charitable persons. They would usually define
themselves as moderates or liberals. Why do they pursue this dreadful war against the poor and the
oppressed?
Put briefly, the answer can be formulated best in psychological terms—or, at least, I, as a psychologist,
am more comfortable with such a formulation. The highly charged psychological problem confronting this
hypothetical progressive, charitable person I am talking about is that of reconciling his own self†interest with
promptings of his humanitarian impulses. This psychological process of reconciliation is not worked out in a
logical, rational, conscious way; it is a process that takes place far below the level of sharp consciousness, and
the solution—Blaming Victim—is arrived at subconsciously as a compromise that apparently satisfies his selfinterest
and his charitable concerns. Let me elaborate.
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First, the question of self†interest or, more accurately, class interest. The typical Victim Blamer is a
middle†class person who is doing reasonably well in a material way; he has a good job, a good income, a good
house, a good car. Basically, he likes the social system pretty much the way it is, at least in broad outline. He
likes the two†party political system, though he may be highly skilled in finding a thousand minor flaws in its
functioning. He heartily approves of the profit motive as the propelling engine of the economic system despite
his awareness that there are abuses of that system, negative side effects, and substantial residual inequalities.
On the other hand, he is acutely aware of poverty, racial discrimination, exploitation, and deprivation,
and, moreover, he wants to do something concrete to ameliorate the condition of the poor, the black, and the
disadvantaged. This is not an extraneous concern; it is central to his value system to insist on the worth of the
individual, the equality of men, and the importance of justice.
What is to be done, then? What intellectual position can he take, and what line of action can he follow
that will satisfy both of these important motivations? He quickly and self†consciously rejects two obvious
alternatives, which he defines “extremes.” He cannot side with an openly reactionary, repressive position that
accepts continued oppression and exploitation as the price of a privileged position for his own class. This is
incompatible with his own morality and his basic political principles. He finds the extreme conservative
position repugnant.
He is, if anything, more allergic to radicals, however, than he is to reactionaries. He rejects the
“extreme” solution of radical social change, and this makes sense since such radical social change threatens his
own well†being. A more equitable distribution of income might mean that he would have less—a smaller or
older house, with fewer yews or no rhododendrons in the yard, a less enjoyable job, or, at the least, a
somewhat smaller salary. If black children and poor children were, in fact, reasonably educated and began to
get high S.A.T. scores, they would be competing with his children for the scarce places in the entering classes
of Harvard, Columbia, Bennington, and Antioch.
So our potential Victim Blamers are in a dilemma. In the words of an old Yiddish proverb, they are
trying to dance at two weddings. They are old friends of both brides and fond of both kinds of dancing, and
they want to accept both invitations. They cannot bring themselves to attack the system that has been so good
to them, but they want so badly to be helpful to the victims of racism and economic injustice.
Their solution is a brilliant compromise. They turn their attention to the victim in his post†victimized
state. They want to bind up wounds, inject penicillin, administer morphine, and evacuate the wounded for
rehabilitation. They explain what’s wrong with the victim in terms of social experiences in the past,
experiences that have left wounds, defects, paralysis, and disability. And they take the cure of these wounds
and the reduction of these disabilities as the first order of business. They want to make the victims less
vulnerable, send them back into battle with better weapons, thicker armor, a higher level of morale.
In order to do so effectively, of course, they must analyze the victims carefully, dispassionately,
objectively, scientifically, empathetically, mathematically, and hardheadedly, to see what made them so
vulnerable in the first place. […]
That is the ideology of Blaming the Victim, the cunning Art of Savage Discovery. The tragic, frightening
truth is that it is a mythology that is winning over the best people of our time, the very people who must resist
this ideological temptation if we are to achieve nonviolent change in America.
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• Public Enemy #2, by Aaron McGruder
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