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diff --git a/talermerchantdemos/blog/articles/en/reevaluating-copyright.html b/talermerchantdemos/blog/articles/en/reevaluating-copyright.html new file mode 100644 index 0000000..f96ce50 --- /dev/null +++ b/talermerchantdemos/blog/articles/en/reevaluating-copyright.html @@ -0,0 +1,425 @@ +<!--#include virtual="/server/header.html" --> +<!-- Parent-Version: 1.79 --> +<title>Reevaluating Copyright: The Public Must Prevail +- GNU Project - Free Software Foundation</title> +<!--#include virtual="/philosophy/po/reevaluating-copyright.translist" --> +<!--#include virtual="/server/banner.html" --> +<h2>Reevaluating Copyright: The Public Must Prevail</h2> + +<pre> + Reevaluating Copyright: The Public Must Prevail + [Published in Oregon Law Review, Spring 1996] + + Richard Stallman +</pre> + +<p>The legal world is aware that digital information technology poses +“problems for copyright,” but has not traced these +problems to their root cause: a fundamental conflict between +publishers of copyrighted works and the users of these works. The +publishers, understanding their own interest, have set forth a +proposal through the Clinton Administration to fix the +“problems” by deciding the conflict in their favor. This +proposal, the Lehman White Paper <a href="#ft2">[2]</a>, was the +principal focus of the “Innovation and the Information +Environment” conference at the University of Oregon (November +1995).</p> + +<p>John Perry Barlow <a href="#ft3">[3]</a>, the keynote speaker, +began the conference by telling us how the Greatful Dead recognized +and dealt with this conflict. They decided it would be wrong to +interfere with copying of their performances on tapes, or with +distribution on the Internet, but saw nothing wrong in enforcing +copyright for CD recordings of their music.</p> + +<p>Barlow did not analyze the reasons for treating these media +differently, and later Gary Glisson <a href="#ft4">[4]</a> criticized +Barlow's idea that the Internet is inexplicably unique and unlike +anything else in the world. He argued that we should be able to +determine the implications of the Internet for copyright policy by the +same kind of analysis that we apply to other technologies. This paper +attempts to do just that.</p> + +<p>Barlow suggested that our intuitions based on physical objects as +property do not transfer to information as property because +information is “abstract.” As Steven +Winter <a href="#ft5">[5]</a> remarked, abstract property has existed +for centuries. Shares in a company, commodity futures, and even paper +money, are forms of property that are more or less abstract. Barlow +and others who argue that information should be free do not reject +these other kinds of abstract property. Clearly, the crucial +difference between information and acceptable kinds of property is not +abstractness per se. So what is it? I propose a simple and practical +explanation.</p> + +<p>United States copyright law considers copyright a bargain between +the public and “authors” (although in practice, usually +publishers take over the authors' part of the bargain). The public +trades certain freedoms in exchange for more published works to +enjoy. Until the White Paper, our government had never proposed that +the public should trade <b>all</b> of its freedom to use published +works. Copyright involves giving up specific freedoms and retaining +others. This means that there are many alternative bargains that the +public could offer to publishers. So which bargain is the best one for +the public? Which freedoms are worth while for the public to trade, +and for what length of time? The answers depend on two things: how +much additional publication the public will get for trading a given +freedom, and how much the public benefits from keeping that +freedom.</p> + +<p>This shows why making <a href="#later-1">intellectual property +decisions</a> by analogy to physical object property, or even to older +intellectual property policies, is a mistake. Winter argued +persuasively that it is possible to make such analogies, to stretch +our old concepts and apply them to new decisions <a href= +"#ft6">[6]</a>. Surely this will reach some answer—but not a +good answer. Analogy is not a useful way of deciding what to buy or at +what price.</p> + +<p>For example, we do not decide whether to build a highway in New +York City by analogy with a previous decision about a proposed highway +in Iowa. In each highway construction decision, the same factors apply +(cost, amount of traffic, taking of land or houses); if we made +highway decisions by analogy to previous highway decisions, we would +either build every proposed highway or none of them. Instead we judge +each proposed highway based on the pros and cons, whose magnitudes +vary from case to case. In copyright issues, too, we must weigh the +cost and benefits for today's situation and today's media, not as they +have applied to other media in the past.</p> + +<p>This also shows why Laurence Tribe's principle, that rights +concerning speech should not depend on the choice of +medium<a href="#ft7">[7]</a>, is not applicable to copyright +decisions. Copyright is a bargain with the public, not a natural +right. Copyright policy issues are about which bargains benefit the +public, not about what rights publishers or readers are entitled +to.</p> + +<p>The copyright system developed along with the printing press. In +the age of the printing press, it was unfeasible for an ordinary +reader to copy a book. Copying a book required a printing press, and +ordinary readers did not have one. What's more, copying in this way +was absurdly expensive unless many copies were made—which means, +in effect, that only a publisher could copy a book economically.</p> + +<p>So when the public traded to publishers the freedom to copy books, +they were selling something which they <b>could not use</b>. Trading +something you cannot use for something useful and helpful is always +good deal. Therefore, copyright was uncontroversial in the age of the +printing press, precisely because it did not restrict anything the +reading public might commonly do.</p> + +<p>But the age of the printing press is gradually ending. The xerox +machine and the audio and video tape began the change; digital +information technology brings it to fruition. These advances make it +possible for ordinary people, not just publishers with specialized +equipment, to copy. And they do!</p> + +<p>Once copying is a useful and practical activity for ordinary +people, they are no longer so willing to give up the freedom to do +it. They want to keep this freedom and exercise it instead of trading +it away. The copyright bargain that we have is no longer a good deal +for the public, and it is time to revise it—time for the law to +recognize the public benefit that comes from making and sharing +copies.</p> + +<p>With this analysis, we see why rejection of the old copyright +bargain is not based on supposing that the Internet is ineffably +unique. The Internet is relevant because it facilitates copying and +sharing of writings by ordinary readers. The easier it is to copy and +share, the more useful it becomes, and the more copyright as it stands +now becomes a bad deal.</p> + +<p>This analysis also explains why it makes sense for the Grateful +Dead to insist on copyright for CD manufacturing but not for +individual copying. CD production works like the printing press; it is +not feasible today for ordinary people, even computer owners, to copy +a CD into another CD. Thus, copyright for publishing CDs of music +remains painless for music listeners, just as all copyright was +painless in the age of the printing press. To restrict copying the +same music onto a digital audio tape does hurt the listeners, however, +and they are entitled to reject this restriction. (1999 note: the +practical situation for CDs has changed, in that many ordinary +computer users can now copy CDs. This means that we should now +consider CDs more like tapes. 2007 clarification: notwithstanding the +improvement in CD technology, it still makes sense to apply copyright +to commercial distribution while letting individuals copy freely.)</p> + +<p>We can also see why the abstractness +of <a href="#later-1">intellectual property</a> is not the crucial +factor. Other forms of abstract property represent shares of +something. Copying any kind of share is intrinsically a zero-sum +activity; the person who copies benefits only by taking wealth away +from everyone else. Copying a dollar bill in a color copier is +effectively equivalent to shaving a small fraction off of every other +dollar and adding these fractions together to make one +dollar. Naturally, we consider this wrong.</p> + +<p>By contrast, copying useful, enlightening or entertaining +information for a friend makes the world happier and better off; it +benefits the friend, and inherently hurts no one. It is a constructive +activity that strengthens social bonds.</p> + +<p>Some readers may question this statement because they know +publishers claim that illegal copying causes them “loss.” +This claim is mostly inaccurate and partly misleading. More +importantly, it is begging the question.</p> + +<ul> + <li>The claim is mostly inaccurate because it presupposes that the + friend would otherwise have bought a copy from the publisher. That + is occasionally true, but more often false; and when it is false, + the claimed loss does not occur.</li> + + <li>The claim is partly misleading because the word + “loss” suggests events of a very different + nature—events in which something they have is taken away from + them. For example, if the bookstore's stock of books were burned, or + if the money in the register got torn up, that would really be a + “loss.” We generally agree it is wrong to do these + things to other people. + + <p>But when your friend avoids the need to buy a copy of a book, + the bookstore and the publisher do not lose anything they had. A + more fitting description would be that the bookstore and publisher + get less income than they might have got. The same consequence can + result if your friend decides to play bridge instead of reading a + book. In a free market system, no business is entitled to cry + “foul” just because a potential customer chooses not + to deal with them.</p> + </li> + + <li>The claim is begging the question because the idea of + “loss” is based on the assumption that the publisher + “should have” got paid. That is based on the assumption + that copyright exists and prohibits individual copying. But that is + just the issue at hand: what should copyright cover? If the public + decides it can share copies, then the publisher is not entitled to + expect to be paid for each copy, and so cannot claim there is a + “loss” when it is not. + + <p>In other words, the “loss” comes from the copyright + system; it is not an inherent part of copying. Copying in itself + hurts no one.</p> + </li> +</ul> + +<p>The most widely opposed provision of the White Paper is the system +of collective responsibility, whereby a computer owner is required to +monitor and control the activities of all users, on pain of being +punished for actions in which he was not a participant but merely +failed to actively prevent. Tim Sloan <a href="#ft8">[8]</a> pointed +out that this gives copyright owners a privileged status not accorded +to anyone else who might claim to be damaged by a computer user; for +example, no one proposes to punish the computer owner if he fails +actively to prevent a user from defaming someone. It is natural for a +government to turn to collective responsibility for enforcing a law +that many citizens do not believe in obeying. The more digital +technology helps citizens share information, the more the government +will need draconian methods to enforce copyright against ordinary +citizens.</p> + +<p>When the United States Constitution was drafted, the idea that +authors were entitled to a copyright monopoly was proposed—and +rejected <a href="#ft9">[9]</a>. Instead, the founders of our country +adopted a different idea of copyright, one which places the public +first <a href="#ft10">[10]</a>. Copyright in the United States is +supposed to exist for the sake of users; benefits for publishers and +even for authors are not given for the sake of those parties, but only +as an inducement to change their behavior. As the Supreme Court said +in Fox Film Corp. v. Doyal: “The sole interest of the United +States and the primary object in conferring the [copyright] monopoly +lie in the general benefits derived by the public from the labors of +authors.” <a href="#ft11">[11]</a></p> + +<p>Under the Constitution's view of copyright, if the public prefers +to be able to make copies in certain cases even if that means somewhat +fewer works are published, the public's choice is decisive. There is +no possible justification for prohibiting the public from copying what +it wants to copy.</p> + +<p>Ever since the constitutional decision was made, publishers have +tried to reverse it by misinforming the public. They do this by +repeating arguments which presuppose that copyright is a natural right +of authors (not mentioning that authors almost always cede it to +publishers). People who hear these arguments, unless they have a firm +awareness that this presupposition is contrary to the basic premises +of our legal system, take for granted that it is the basis of that +system.</p> + +<p>This error is so ingrained today that people who oppose new +copyright powers feel the need to do so by arguing that even authors +and publishers may be hurt by them. Thus, James +Boyle <a href="#ft12">[12]</a> explains how a +strict <a href="#later-2">intellectual property system</a> can +interfere with writing new works. Jessica +Litman <a href="#ft13">[13]</a> cites the copyright shelters which +historically allowed many new media to become popular. Pamela +Samuelson <a href="#ft14">[14]</a> warns that the White Paper may +block the development of “third-wave” information +industries by locking the world into the “second-wave” +economic model that fit the age of the printing press.</p> + +<p>These arguments can be very effective on those issues where they +are available, especially with a Congress and Administration dominated +by the idea that “What's good for General Media is good for the +USA.” But they fail to expose the fundamental falsehood on which +this domination is based; as a result, they are ineffective in the +long term. When these arguments win one battle, they do so without +building a general understanding that helps win the next battle. If we +turn to these arguments too much and too often, the danger is that we +may allow the publishers to replace the Constitution uncontested.</p> + +<p>For example, the recently published position statement of the +Digital Future Coalition, an umbrella organization, lists many reasons +to oppose the White Paper, for the sake of authors, libraries, +education, poor Americans, technological progress, economic +flexibility, and privacy concerns—all valid arguments, but +concerned with side issues <a href="#ft15">[15]</a>. Conspicuously +absent from the list is the most important reason of all: that many +Americans (perhaps most) want to continue making copies. The DFC fails +to criticize the core goal of the White Paper, which is to give more +power to publishers, and its central decision, to reject the +Constitution and place the publishers above the users. This silence +may be taken for consent.</p> + +<p>Resisting the pressure for additional power for publishers depends +on widespread awareness that the reading and listening public are +paramount; that copyright exists for users and not vice versa. If the +public is unwilling to accept certain copyright powers, that is ipso +facto justification for not offering them. Only by reminding the +public and the legislature of the purpose of copyright and the +opportunity for the open flow of information can we ensure that the +public prevails.</p> + +<h3>ENDNOTES</h3> + +<p id="ft2">[2] Informational Infrastructure Task +Force, Intellectual Property and the National Information +Infrastructure: The Report of the Working Group on Intellectual +Property Rights (1995).</p> + +<p id="ft3">[3] John Perry Barlow, Remarks at the +Innovation and the Information Environment Conference (Nov. +1995). Mr. Barlow is one of the founders of the Electronic Frontier +Foundation, an organization which promotes freedom of expression in +digital media, and is also a former lyricist for the Grateful +Dead.</p> + +<p id="ft4">[4] Gary Glisson, Remarks at the +Innovation and the Information Environment Conference (Nov. 1995); +see also Gary Glisson, A Practitioner's Defense of the NII White +Paper, 75 Or. L. Rev. (1996) (supporting the White Paper). +Mr. Glisson is a partner and chair of the Intellectual Property Group +at Lane Powell Spears Lubersky in Portland, Oregon.</p> + +<p id="ft5">[5] Steven Winter, Remarks at the +Innovation and the Information Environment Conference (Nov. +1995). Mr. Winter is a professor at the University of Miami School of +Law.</p> + +<p id="ft6">[6] Winter, supra note 5.</p> + +<p id="ft7">[7] See Laurence H. Tribe, The +Constitution in Cyberspace: Law and Liberty Beyond the Electronic +Frontier, Humanist, Sept.-Oct. 1991, at 15.</p> + +<p id="ft8">[8] Tim Sloan, Remarks at the Innovation +and the Information Environment Conference (Nov. 1995). Mr. Sloan is +a member of the National Telecommunication and Information +Administration.</p> + +<p id="ft9">[9] See Jane C. Ginsburg, A Tale of Two +Copyrights: Liberary Property in Revolutionary France and America, in, +Of Authors and Origins: Essays on Copyright Law 131, 137-38 (Brad +Sherman & Alain Strowel, eds., 1994) (stating that the +Constitution's framers either meant to “subordinate[] the +author's interests to the public benefit,” or to “treat +the private and public interests…even-handedly.”).</p> + +<p id="ft10">[10] U.S. Const., art. I, p. 8, cl. 8 +(“Congress shall have Power…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.”).</p> + +<p id="ft11">[11] 286 U.S. 123, 127 (1932).</p> + +<p id="ft12">[12] James Boyle, Remarks at the +Innovation and the Information Environment Conference (Nov. +1995). Mr. Boyle is a Professor of Law at American University in +Washington, D.C.</p> + +<p id="ft13">[13] Jessica Litman, Remarks at the +Innovation and the Information Environment Conference (Nov. +1995). Ms. Litman is a Professor at Wayne State University Law School +in Detroit, Michigan.</p> + +<p id="ft14">[14] Pamela Samuelson, The Copyright +Grab, Wired, Jan. 1996. Ms. Samuelson is a Professor at Cornell Law +School.</p> + +<p id="ft15">[15] Digital Future Coalition, +Broad-Based Coalition Expresses Concern Over Intellectual Property +Proposals, Nov. 15, 1995<!-- (available at URL: +<a href="http://home.worldweb.net/dfc/press.html">http://home.worldweb.net/dfc/press.html</a>)-->.</p> + +<h3>LATER NOTES</h3> + +<p id="later-1">[1] This article was part of the +path that led me to recognize the <a href="/philosophy/not-ipr.html"> +bias and confusion in the term “intellectual +property”</a>. Today I believe that term should never be used +under any circumstances.</p> + +<p id="later-2">[2] Here I fell into the +fashionable error of writing “intellectual property” when +what I meant was just “copyright”. This is like writing +“Europe” when you mean “France”—it +causes confusion that is easy to avoid.</p> +</div><!-- for id="content", starts in the include above --> +<!--#include virtual="/server/footer.html" --> +<div id="footer"> +<div class="unprintable"> + +<p>Please send general FSF & GNU inquiries to <a +href="mailto:gnu@gnu.org"><gnu@gnu.org></a>. There are also <a +href="/contact/">other ways to contact</a> the FSF. Broken links and other +corrections or suggestions can be sent to <a +href="mailto:webmasters@gnu.org"><webmasters@gnu.org></a>.</p> + +<p><!-- TRANSLATORS: Ignore the original text in this paragraph, + replace it with the translation of these two: + + We work hard and do our best to provide accurate, good quality + translations. However, we are not exempt from imperfection. + Please send your comments and general suggestions in this regard + to <a href="mailto:web-translators@gnu.org"> + <web-translators@gnu.org></a>.</p> + + <p>For information on coordinating and submitting translations of + our web pages, see <a + href="/server/standards/README.translations.html">Translations + README</a>. --> +Please see the <a +href="/server/standards/README.translations.html">Translations README</a> for +information on coordinating and submitting translations of this article.</p> +</div> + +<p>Copyright © 1996, 1999, 2016 Richard M. Stallman</p> + +<p>This page is licensed under a <a rel="license" +href="http://creativecommons.org/licenses/by-nd/4.0/">Creative +Commons Attribution-NoDerivatives 4.0 International License</a>.</p> + +<!--#include virtual="/server/bottom-notes.html" --> + +<p class="unprintable">Updated: +<!-- timestamp start --> +$Date: 2016/11/18 06:31:39 $ +<!-- timestamp end --> +</p> +</div> +</div> +</body> +</html> |