Pfaffenberger 93
Bryan Pfaffenberger teaches in the Department of Technology, Culture, and Communication at the
University of Virginia where he specializes in cyberlaw, intellectual property and other social aspects
of information technology. He is also the author of several trade and reference titles, including Webster’s
New World Dictionary of Computer Terms, 9th ed. (Hungry Minds) and Computers in Your Future, 4th
ed. (Prentice-Hall) . He may be reached at bp@virignia.edu or via the web at:
<www.people.virginia.edu/~bp>.
Knowledge, Technology, & Policy, Spring 2001, Vol. 14, No. 1, pp. 93-102.
Why Open Content Matters
Bryan Pfaffenberger
Knowledge must forever govern ignorance, and a people who would be their own
governors must arm themselves with the power which knowledge gives. Popular
government, without popular information, or the means of acquiring it, is but a
Prologue to a Farce or a Tragedy—or perhaps both.—James Madison, 1815
Don’t be misled by the tech stock collapse; we’re on a digitization jug-
gernaut. Just a few years ago, leather-bound DayTimers and Filofaxes domi-
nated business meetings; today, you’ll find a preponderance of Palm Pilots.
As for that novel or newspaper you’re reading, doubt it not: digitization is
coming. Of course, you needn’t worry about print media disappearing over-
night; if anything, the Internet is fueling a renaissance of newspaper read-
ing. Beneath the surface, though, print media have changed. The underlying
technology is already digital, from the point of creation to the means of
national and international distribution. As publishers are trying to capital-
ize on their digitized product, they are pushing the U.S. Congress to enact
legislation granting them what amounts to real property rights in perpetu-
ity over printed material—rights in which even the authors do not share.
Coupled with these disturbing legal developments, the digitization of print
media archives presages the rise of a world in which access to basic facts
and scientific knowledge is parceled out by a state-protected pay-per-view
industry—and as you will learn in this article, that’s bad news for democ-
racy. If for-profit copyright holders get their way, democratic notions con-
cerning public access to factual information may seem just as quaint as a
DayRunner seems to the Palm-toting digerati.
In this article, I will argue that the open content movement—a movement
to release written documents with a license similar to the GNU General
Public License (GPL; see <http://www.fsf.org/copyleft/gpl.html>)—is be-

94 Knowledge, Technology, & Policy / Spring 2001
ginning to stir for precisely the same reasons that launched the Free Soft-
ware movement in the 1980s: the realization that a for-profit industry was
about to lock up indispensable public knowledge and, in so doing, pose a
grave threat to the advancement of knowledge and human welfare. This
time, the stakes are even greater.
What’s the Problem?
In what follows, I’ll argue that healthy democracy depends not only on
the ability of citizens to access facts and ideas freely, but also to produce
derivative works that substantially incorporate and rework the means of
expression found in copyrighted works. Be forewarned: by contemporary
standards, my position is a decidedly fringe perspective, notwithstanding
the fact that, in my view, it aptly characterizes the view that prevailed dur-
ing the American republic’s first century (a point to which this essay re-
turns).
To be sure, it is widely agreed—even today—that the free flow of facts
and information is important to a democracy. Vital to a successful democ-
racy is a flourishing civil society, a “sphere of voluntary, non-governmental
associations in which individuals determine their shared purposes and
norms” ( Netanel 1996; I follow his argument closely here). A robust civil
society fosters an embedded and self-perpetuating “democratic culture” that
make it resistant to tyranny. But such a culture cannot endure in the ab-
sence of free access to facts—facts about what has happened, what the
government is doing, how decisions were made, who benefits from such
decisions—and the ideas that enable people to link these facts into mean-
ingful patterns by which they can engage in positive political action. Of
course, copyright makes facts and ideas widely available by providing in-
centives for authors and publishers to make them so; copyright furthers
this purpose by giving no protection to the facts and ideas, but only to the
author’s unique expression of these facts and ideas, in a copyright work.
From this perspective, voiced by neoclassical economists and legal schol-
ars influenced by the neoclassical viewpoint, extending the scope and du-
ration of copyright can only enhance the contribution made by copyrighted
works to democratic deliberation.
But I would like to argue that democratic deliberation may legitimately
involve appropriations of a work’s expression as well as the underlying
facts and ideas. To rob an idea of its most eloquent expression—consider “I
have a dream” or “Ask not what your country can do for you; ask what you
can do for your country”—is to rob it of its life and force, as Netanel (1996)
compellingly argues. This point is especially valid when one considers ar-
tistic or popular works that can advance powerful political ideas in a com-
pelling ways. In addition, the purposes of democratic political deliberation
are sometimes best served by permitting the appropriation and complete
reproduction of an entire copyrighted work. For example, in 1971, the New
York Times started a series of articles that reproduced the text of a secret
Pentagon study of the Vietnam conflict, now known as the Pentagon Papers.