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The following is excerpted from Property Outlaws: How Squatters, Pirates, and Protesters Improve the Law of Ownership, by Eduardo M. Peñalver and Sonia K. Katyal (available from Yale University Press). 

 

At 4:30 p.m. on Monday, February 1, 1960, Ezell Blair Jr., Franklin McCain, Joseph McNeil, and David Richmond — all freshmen at the North Carolina Agricultural and Technical State University (North Carolina A&T) — walked into the cafeteria at the Woolworth's store in downtown Greensboro, North Carolina. They sat down at the counter and quietly waited for service. They received none. Blair, McCain, McNeil, and Richmond were black, and Woolworth's, like all the department stores and restaurants in Greensboro, followed the local "custom" of refusing to allow black patrons to sit down to eat at the lunch counter. Although they received no service, the four men sat quietly and without incident. When the store closed at 5:30 that day, they left.

The next morning, at 10:30, the four young men returned to Woolworth's, along with sixteen other students from North Carolina A&T. They each purchased a small item from the store's lunch counter, which was willing to sell black customers food but not to let them sit down at the counter to eat it. As seats opened up at the lunch counter, the young men and women sat down in violation of the store's customary policy. Some students spoke quietly among themselves; others studied. In the meantime, white customers continued to come and go, puzzled at what they were witnessing. When the students finally left, shortly after lunchtime, they promised to return the next day in even greater numbers. McCain and Blair, acting as spokesmen for the group, said that they would continue to sit at the lunch counter for "several days, several weeks," until Woolworth's changed its racist policy. The students were careful to note that they were not planning to boycott the store. "We like to spend our money here," McCain said,"but we want to spend it at the lunch counter."

By Thursday morning, the group had swelled to over sixty protesters and now included students from nearby Bennett College. They occupied virtually every seat at the lunch counter, and service came to a standstill as waitresses — in accordance with Woolworth's policy — refused to serve them. North Carolina's attorney general, Malcolm Seawell, commented on the situation, noting that North Carolina had no law against serving members of both races at a lunch counter, but also observing that there was no law that required a private business to serve anyone it did not wish to serve. His implication was clear. By sitting at the lunch counter against the wishes of the store's owners or managers, the students were engaging in a criminal violation of private property rights. Despite the attorney general's implicit threat, the sit-down protests continued on Friday and Saturday. White youths confronted the growing group of black college students, hurling insults at them. After a bomb threat on Saturday, February 6, Woolworth's decided to close its lunch counter indefinitely.

By the middle of the following week, copycat sit-down protests had sprung up in Winston-Salem and Charlotte. And lunch counters at Woolworth's and other department stores in those cities closed down as well. Joseph Jones, a black student at Johnson C. Smith University and a leader of the Charlotte sit-ins, commented, "I have no malice, no jealousy, no hatred, no envy. All I want is to come in and place my order and be served and leave a tip if I feel like it."

By the end of the month, similar sit-down protests were occurring throughout the South. As the movement grew in strength, the department stores began to change their tactics. At first, the stores had responded to the protesters by ignoring them or closing the lunch counters entirely, perhaps in hope that the students would quickly lose interest. But as the protests persisted, and even grew, the stores began to assert their private property rights more forcefully. Under the laws of most states at that time, owners of private businesses could refuse to serve anyone for any reason, and a person who failed to leave a store after being asked to do so by its proprietor was guilty of criminal trespass. When the protests showed no signs of abating, store owners began to flex these legal muscles, and the arrests began. On February 22, thirty-four students were arrested for criminal trespass in Richmond, Virginia, when they refused to leave the lunch counter at a large downtown department store. Over the succeeding days and months, hundreds more students were arrested in North Carolina, Virginia, and throughout the South for refusing to honor the racially discriminatory exercise of private property rights by the owners of lunch counters.

Forty-five years, to the day, after the four Greensboro college freshmen sparked a national movement to end private discrimination in stores and restaurants, Downhill Battle, an anticopyright activist group, organized a massive nationwide screening of the acclaimed 1987 documentary Eyes on the Prize — a film that had been shown to generations for its valuable historical footage of the civil rights movement. As various Internet and print news sources, and Downhill Battle's own Web site, reported, the film, billed as the "most important civil rights documentary ever," had languished since 1995 because of expired copyright licenses for the photographs and other archival footage usedin the film. Some of the footage in the documentary had been licensed for only five years, and the film's producer, Henry Hampton, had passed away before the rights were renewed. Things had changed since the film was first created — licenses had become far more costly to procure, and the vast archival material includedin the film made them prohibitively expensive. Blackside, the production company that had inherited the rights to the film, could not afford to renew the licenses. As a result, the film could not be rereleased until new licenses were procured. By the mid-1990s, the film had become, for all practical purposes, unavailable to the general public-a few rare VHS copies occasionally surfaced on eBay for as much as $1,500.

Ironically, many of the sources used in the film would have fallen into the public domain, or been close to doing so, had Congress not retroactively extended the length of copyright protection by twenty years in the 1998 Copyright Term Extension Act. For example, in one poignant scene, Martin Luther King Jr.'s staff is shown singing the song "Happy Birthday," a song that would have entered the public domain in 2010 had the law not been passed. Because of the Copyright Extension Act, however, the song will not enter the public domain until 2030, and the cost of a license has grown dramatically since the film was made. According to some Warner Brothers executives, the song currently commands licensing fees between $3,000 and $5,000 for a single use in a film.

Eyes on the Prize had, in a sense, become a victim of its own high standards for documentary production: because it included such an exhaustive array of research and sources, it became too costly to rerelease after the originallicenses had expired. And without the proper licenses, any public display ofthe film risked infringing the rights to the panoply of material that was stillprotected. The high cost of relicensing the material made the film a captive ofits content, barring its general distribution to the viewing public. As aresult, this important and revered film could no longer be shown in public.

For many civil rights advocates, particularly educators and historians, this was a tragic turn of events. After a few news articles reported on the film's unavailability, Downhill Battle decided to organize a public protest to coincide with Black History Month in order to draw attention to the effect of copyright law on Eyes on the Prize in particular and the circulation of information in general. The only way to do this, the group reasoned, was to simply show the film — in other words, defy the restrictions of copyright protection in order to demonstrate the potentially egregious cost of the law itself. One civil rights leader, Lawrence Guyot, proclaimed, "‘Eyes on the Prize' is one of the most effective documentaries ever put together that dealt with civic engagement. . . . This [absence of license renewal] is analogous to stopping the circulation of all the books about Martin Luther King, stopping the circulation of all the books about Malcolm X, stopping the circulation of books about the founding of America. . . . I would call upon everyone who has access to ‘Eyes on the Prize' to openly violate any and all laws regarding its showing." Just as earlier generations of civil rights activists challenged property laws, through sit-ins and other forms of everyday resistance, in order to articulate their demands for equal access to lunch counters and other places of public accommodation, Guyot's was calling for similar challenges to existing intellectual property rights in the name of greater access to information.

So Downhill Battle organized a massive day of digital disobedience. Its announcement read: "Eyes on the Prize is the most renowned civil rights documentary of all time; for many people, it is how they first learned about the Civil Rights Movement. . . . But this film has not been available on video or television for the past 10 years simply because of expired copyright licenses. We cannot allow copyright red tape to keep this film from the publicany longer. So today we are making digital versions of the film available for download."

Downhill Battle's method of protest was simple: the group digitized the first three episodes of the documentary and posted them online, where the episodes could be downloaded for free using peer-to-peer software, like Bit Torrent. Then, Downhill Battle encouraged people to copy and distribute the files in order to raise awareness of copyright's effect on the circulation of information. Downhill Battle dubbed their protest "Eyes on the Screen" and coordinated hundreds of public showings of the movie at universities and in private homes throughout the country. The organizers believed that their activities fell squarely within the "fair use" protections of the Copyright Act. "We're talking about a cultural and national icon," Guyot explained in a telephone interviewto the Boston Globe. "There's never been a more key time to revitalize our faith in our ability to impact on every level. I'm not doing anything illegal, I'm persuading people to buy copies and those who have copies to share them, to facilitate as many showings as possible."

The protest, however, was short lived. Downhill Battle's efforts, though nationally visible, were ultimately curtailed — because of Blackside's own intervention. Even though Downhill Battle planned to digitize and post the remaining episodes on peer-to-peer networks, it was forced to take them down after Blackside contacted its copyright lawyers, who concluded that the protest not only violated the filmmaker's copyright but might also irritate the various license holders whose works were used in the film. Tony Pierce, one of Blackside's lawyers, strongly disagreed with the protesters' belief that their activities were legal, calling their fair use defense "warped." Pierce continued, "Their activities were blatantly illegal, and I think they knew they were when they did them." Other Blackside lawyers were more moderate in their assessment. "We appreciate and are very glad that people are interested in ‘Eyes,' but I think the way Downhill Battle is going about it is unacceptable and illegal," said another Blackside lawyer, Sandy Forman from the law firm of Akin Gump Strauss Hauer & Feld. "We don't like that Downhill Battle would illegally digitize copies and then encourage people to illegally download them and encourage people toexhibit them without the rights to do so."

A similar perspective was offered by another Blackside representative on a widely read blog. "This protest might be a good thing, as far as copyright goes, but as far as Eyes on the Prize goes, it's really not." The representative pointed out that Downhill Battle's calls to illegally copy and distribute the film made negotiations with the copyright holders even more difficult. "Whatever the motives," he added, "the counter-copyright crew are essentially hijacking someone else's life's work and appropriating its power and recognition for their own purposes. In the process, they are potentially diminishing and damaging its own effectiveness. . . . They invoke Henry Hampton's name and legacy on their page, where they advocate downloading and illegally distributing his works. Henry Hampton may have made documentaries, but that doesn't mean he worked for free. . . . So trying to invoke his name while you encourage everyone to trample on the rights granted his works strikes me as extremely hypocritical."

The critical comments generated a firestorm of discussion about the relative merits of the "Eyes on the Screen" protest-for copyright law, for the future of civil rights education, and for the intersection between the two areas. In the end, Blackside received several hundred thousand dollars in grants from the Ford Foundation and private philanthropists to purchase the rights to use the images in the film. Even with this infusion of money, however, the expense of licensing the songs used in the original film was thought to be too expensive, and Blackside expected that it would have to drop some of them in order to stay within budget. By 2006, however, the film was once again being shown on PBS.

At first glance, the four college freshmen who launched the 1960 sit-down movement at the Woolworth's in Greensboro, North Carolina, and the intellectual property activists at Downhill Battle may not appear to share a great deal. The Greensboro protests were aimed at defending the fundamental human dignity of black Americans, a dignity that had been under assault for centuries. The intellectual property activists at Downhill Battle are focused on helpingpeople get access to information that is, for the most part, already availableto them, albeit for a price. Even if we focus on the fight over Eyes on the Prize, an important repository of documentary material about the most important social movement of the twentieth century, we must recognize that there is a stark difference between fighting for civil rights and fighting for access to a film about civil rights.

We should not, however, let hindsight distort our assessment of either effort. At the time of their sit-down protests, the Greensboro protesters were maligned as threatening sacred rights of private property and the rule of law in pursuit of what many commentators considered a trivial interest in access to lunch-counter service. Such criticism did not come just from conservatives and segregationists. Thurgood Marshall railed against the sit-down protests, and a black minister in Charlotte, North Carolina, lambasted the students' actions as "uncalled for, unnecessary, ill-advised and inexpedient." Conversely, to some contemporary observers, Downhill Battle's efforts to provide access to Eyes on the Prize were viewed as vital to the future of our democracy. One former staff member of the Southern Christian Leadership Conference (Martin Luther King Jr.'s organization) explained his efforts to organize an illicit screening of the film by noting the similarities between the fight for civil rights and the fight for access to information. "I think probably the issue of the 20th century was race. The issue of the 21st centuryis going to be access to information. . . . Without access to information, democracy is a myth."

What everone thinks of the relative merits of the two protests, they share a great deal. The most obvious commonality operates on the level of tactics. Both the Greensboro protesters and the information activists relied on a readiness to trample on entrenched property rights in order to draw attention to their demands for political change. And in so doing, both movements demonstrated aflair for the dramatic and for attracting the media attention that politically motivated property disobedience generates.

Whether the Greensboro students or Downhill Battle knew it or not, in violating property rights as they did, they tapped into a long tradition within the history of American property law. For as long as there has been private ownership, it seems, there have been people who have sought to challenge the prerogatives of ownership in search of a more just social order. Sometimes they have succeeded. More often, they have not. But the pervasive influence of these outlaw tactics on the development of American property doctrine cannot be denied.

 

Teaser image by Banspy, courtesy of Creative commons license.      

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