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+<!-- This is the second edition of Free Software, Free Society: Selected Essays of Richard M. Stallman.
+
+Free Software Foundation
+
+51 Franklin Street, Fifth Floor
+
+Boston, MA 02110-1335
+Copyright C 2002, 2010 Free Software Foundation, Inc.
+Verbatim copying and distribution of this entire book are permitted
+worldwide, without royalty, in any medium, provided this notice is
+preserved. Permission is granted to copy and distribute translations
+of this book from the original English into another language provided
+the translation has been approved by the Free Software Foundation and
+the copyright notice and this permission notice are preserved on all
+copies.
+
+ISBN 978-0-9831592-0-9
+Cover design by Rob Myers.
+
+Cover photograph by Peter Hinely.
+ -->
+
+
+ <a name="Misinterpreting-Copyright_002d_002d_002dA-Series-of-Errors">
+ </a>
+ <h1 class="chapter">
+ 18. Misinterpreting Copyright—A Series of Errors
+ </h1>
+ <a name="index-Constitution_002c-copyright-and-US">
+ </a>
+ <p>
+ Something strange and dangerous is happening in copyright law. Under
+the US Constitution, copyright exists to benefit users—those
+who read books, listen to music, watch movies, or run software—not
+for the sake of publishers or authors. Yet even as people tend
+increasingly to reject and disobey the copyright restrictions imposed
+on them “for their own benefit,” the US government is
+adding more restrictions, and trying to frighten the public into
+obedience with harsh new penalties.
+ </p>
+ <p>
+ How did copyright policies come to be diametrically opposed to their
+stated purpose? And how can we bring them back into alignment with that
+purpose? To understand, we should start by looking at the root of
+United States copyright law: the US Constitution.
+ </p>
+ <a name="Copyright-in-the-US-Constitution">
+ </a>
+ <h3 class="subheading">
+ Copyright in the US Constitution
+ </h3>
+ <p>
+ When the US Constitution was drafted, the idea that authors were
+entitled to a copyright monopoly was proposed—and rejected. The
+founders of our country adopted a different premise, that copyright is
+not a natural right of authors, but an artificial concession made to
+them for the sake of progress. The Constitution gives permission for a
+copyright system with this clause (Article I, Section 8,
+Clause 8):
+ </p>
+ <blockquote class="smallquotation">
+ <p>
+ [Congress shall have the power] to promote the Progress of Science and
+the useful Arts, by securing for limited Times to Authors and Inventors
+the exclusive Right to their respective Writings and Discoveries.
+ </p>
+ </blockquote>
+ <a name="index-Supreme-Court_002c-US-1">
+ </a>
+ <p>
+ The Supreme Court has repeatedly affirmed that promoting progress means
+benefit for the users of copyrighted works. For example, in
+ <em>
+ Fox Film
+v. Doyal,
+ </em>
+ <a href="#FOOT36" name="DOCF36">
+ (36)
+ </a>
+ the court said,
+ </p>
+ <blockquote class="smallquotation">
+ <p>
+ 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.
+ </p>
+ </blockquote>
+ <p>
+ This fundamental decision explains why copyright is
+not
+ <em>
+ required
+ </em>
+ by the Constitution, only
+ <em>
+ permitted
+ </em>
+ as an
+option—and why it is supposed to last for “limited
+times.” If copyright were a natural right, something that
+authors have because they deserve it, nothing could justify
+terminating this right after a certain period of time, any more than
+everyone’s house should become public property after a certain lapse
+of time from its construction.
+ </p>
+ <a name="The-_0060_0060Copyright-Bargain_0027_0027">
+ </a>
+ <h3 class="subheading">
+ The “Copyright Bargain”
+ </h3>
+ <a name="index-copyright_002c-_0060_0060copyright-bargain_0027_0027">
+ </a>
+ <p>
+ The copyright system works by providing privileges and thus benefits
+to publishers and authors; but it does not do this for their sake.
+Rather, it does this to modify their behavior: to provide an incentive
+for authors to write more and publish more. In effect, the government
+spends the public’s natural rights, on the public’s behalf, as part of
+a deal to bring the public more published works. Legal scholars call
+this concept the “copyright bargain.” It is like a
+government purchase of a highway or an airplane using taxpayers’
+money, except that the government spends our freedom instead of our
+money.
+ </p>
+ <p>
+ But is the bargain as it exists actually a good deal for the public?
+Many alternative bargains are possible; which one is best? Every
+issue of copyright policy is part of this question. If we
+misunderstand the nature of the question, we will tend to decide the
+issues badly.
+ </p>
+ <p>
+ The Constitution authorizes granting copyright powers to authors. In
+practice, authors typically cede them to publishers; it is usually the
+publishers, not the authors, who exercise these powers and get most of
+the benefits, though authors may get a small portion. Thus it is
+usually the publishers that lobby to increase copyright powers. To
+better reflect the reality of copyright rather than the myth, this
+article refers to publishers rather than authors as the holders of
+copyright powers. It also refers to the users of copyrighted works as
+“readers,” even though using them does not always mean
+reading, because “the users” is remote and abstract.
+ </p>
+ <a name="The-First-Error_003a-_0060_0060Striking-a-Balance_0027_0027">
+ </a>
+ <h3 class="subheading">
+ The First Error: “Striking a Balance”
+ </h3>
+ <a name="index-copyright_002c-erroneous-concept-of-_0060_0060striking-a-balance_0027_0027">
+ </a>
+ <p>
+ The copyright bargain places the public first: benefit for the reading
+public is an end in itself; benefits (if any) for publishers are just
+a means toward that end. Readers’ interests and publishers’ interests
+are thus qualitatively unequal in priority. The first step in
+misinterpreting the purpose of copyright is the elevation of the
+publishers to the same level of importance as the readers.
+ </p>
+ <p>
+ It is often said that US copyright law is meant to “strike a
+balance” between the interests of publishers and readers. Those
+who cite this interpretation present it as a restatement of the basic
+position stated in the Constitution; in other words, it is supposed to
+be equivalent to the copyright bargain.
+ </p>
+ <p>
+ But the two interpretations are far from equivalent; they are
+different conceptually, and different in their implications. The
+balance concept assumes that the readers’ and publishers’ interests
+differ in importance only quantitatively, in
+ <em>
+ how much
+weight
+ </em>
+ we should give them, and in what actions they apply to.
+The term “stakeholders” is often used to frame the issue
+in this way; it assumes that all kinds of interest in a policy
+decision are equally important. This view rejects the qualitative
+distinction between the readers’ and publishers’ interests which is at
+the root of the government’s participation in the copyright
+bargain.
+ </p>
+ <p>
+ The consequences of this alteration are far-reaching, because the
+great protection for the public in the copyright bargain—the
+idea that copyright privileges can be justified only in the name of
+the readers, never in the name of the publishers—is discarded
+by the “balance” interpretation. Since the interest of
+the publishers is regarded as an end in itself, it can justify
+copyright privileges; in other words, the “balance”
+concept says that privileges can be justified in the name of someone
+other than the public.
+ </p>
+ <p>
+ As a practical matter, the consequence of the “balance”
+concept is to reverse the burden of justification for changes in
+copyright law. The copyright bargain places the burden on the
+publishers to convince the readers to cede certain freedoms. The
+concept of balance reverses this burden, practically speaking, because
+there is generally no doubt that publishers will benefit from
+additional privilege. Unless harm to the readers can be proved,
+sufficient to “outweigh” this benefit, we are led to
+conclude that the publishers are entitled to almost any privilege they
+request.
+ </p>
+ <p>
+ Since the idea of “striking a balance” between publishers and
+readers denies the readers the primacy they are entitled to, we must
+reject it.
+ <a name="index-copyright_002c-erroneous-concept-of-_0060_0060striking-a-balance_0027_0027-1">
+ </a>
+ </p>
+ <a name="Balancing-against-What_003f">
+ </a>
+ <h3 class="subheading">
+ Balancing against What?
+ </h3>
+ <p>
+ When the government buys something for the public, it acts on behalf
+of the public; its responsibility is to obtain the best possible
+deal—best for the public, not for the other party in the
+agreement.
+ </p>
+ <p>
+ For example, when signing contracts with construction companies to build
+highways, the government aims to spend as little as possible of the
+public’s money. Government agencies use competitive bidding to push the
+price down.
+ </p>
+ <p>
+ As a practical matter, the price cannot be zero, because contractors
+will not bid that low. Although not entitled to special
+consideration, they have the usual rights of citizens in a free
+society, including the right to refuse disadvantageous contracts; even
+the lowest bid will be high enough for some contractor to make money.
+So there is indeed a balance, of a kind. But it is not a deliberate
+balancing of two interests each with claim to special consideration.
+It is a balance between a public goal and market forces. The
+government tries to obtain for the taxpaying motorists the best deal
+they can get in the context of a free society and a free market.
+ </p>
+ <p>
+ In the copyright bargain, the government spends our freedom instead of
+our money. Freedom is more precious than money, so government’s
+responsibility to spend our freedom wisely and frugally is even
+greater than its responsibility to spend our money thus. Governments
+must never put the publishers’ interests on a par with the public’s
+freedom.
+ </p>
+ <a name="Not-_0060_0060Balance_0027_0027-but-_0060_0060Trade_002dOff_0027_0027">
+ </a>
+ <h3 class="subheading">
+ Not “Balance” but “Trade-Off”
+ </h3>
+ <p>
+ The idea of balancing the readers’ interests against the publishers’
+is the wrong way to judge copyright policy, but there are indeed two
+interests to be weighed: two interests
+ <em>
+ of the readers.
+ </em>
+ Readers
+have an interest in their own freedom in using published works;
+depending on circumstances, they may also have an interest in
+encouraging publication through some kind of incentive system.
+ </p>
+ <p>
+ The word “balance,” in discussions of copyright, has come
+to stand as shorthand for the idea of “striking a balance”
+between the readers and the publishers. Therefore, to use the word
+“balance” in regard to the readers’ two interests would be
+confusing. We need another term.
+ </p>
+ <p>
+ In general, when one party has two goals that partly conflict, and
+cannot completely achieve both of them, we call this a
+“trade-off.” Therefore, rather than speaking of
+“striking the right balance” between parties, we should
+speak of “finding the right trade-off between spending our
+freedom and keeping it.”
+ </p>
+ <a name="The-Second-Error_003a-Maximizing-One-Output">
+ </a>
+ <h3 class="subheading">
+ The Second Error: Maximizing One Output
+ </h3>
+ <a name="index-copyright_002c-erroneous-concept-of-maximizing-one-output">
+ </a>
+ <p>
+ The second mistake in copyright policy consists of adopting the goal
+of maximizing—not just increasing—the number of
+published works. The erroneous concept of “striking a
+balance” elevated the publishers to parity with the readers;
+this second error places them far above the readers.
+ </p>
+ <p>
+ When we purchase something, we do not generally buy the whole quantity
+in stock or the most expensive model. Instead we conserve funds for
+other purchases, by buying only what we need of any particular good, and
+choosing a model of sufficient rather than highest quality. The
+principle of diminishing returns suggests that spending all our money on
+one particular good is likely to be an inefficient allocation of resources;
+we generally choose to keep some money for another use.
+ </p>
+ <p>
+ Diminishing returns applies to copyright just as to any other
+purchase. The first freedoms we should trade away are those we miss
+the least, and whose sacrifice gives the largest encouragement to
+publication. As we trade additional freedoms that cut closer to home,
+we find that each trade is a bigger sacrifice than the last, while
+bringing a smaller increment in literary activity. Well before the
+increment becomes zero, we may well say it is not worth its
+incremental price; we would then settle on a bargain whose overall
+result is to increase the amount of publication, but not to the utmost
+possible extent.
+ </p>
+ <p>
+ Accepting the goal of maximizing publication rejects all these wiser,
+more advantageous bargains in advance—it dictates that the
+public must cede nearly all of its freedom to use published works, for
+just a little more publication.
+ <a name="index-copyright_002c-_0060_0060copyright-bargain_0027_0027-1">
+ </a>
+ </p>
+ <a name="The-Rhetoric-of-Maximization">
+ </a>
+ <h3 class="subheading">
+ The Rhetoric of Maximization
+ </h3>
+ <a name="index-_0060_0060piracy_002c_0027_0027-erroneous-use-of-term-5">
+ </a>
+ <p>
+ In practice, the goal of maximizing publication regardless of the cost
+to freedom is supported by widespread rhetoric which asserts that
+public copying is illegitimate, unfair, and intrinsically wrong. For
+instance, the publishers call people who copy “pirates,” a
+smear term designed to equate sharing information with your neighbor
+with attacking a ship. (This smear term was formerly used by authors
+to describe publishers who found lawful ways to publish unauthorized
+editions; its modern use by the publishers is almost the reverse.)
+This rhetoric directly rejects the constitutional basis for copyright,
+but presents itself as representing the unquestioned tradition of the
+American legal system.
+ </p>
+ <p>
+ The “pirate” rhetoric is typically accepted because it
+so pervades the media that few people realize how radical it is. It
+is effective because if copying by the public is fundamentally
+illegitimate, we can never object to the publishers’ demand that we
+surrender our freedom to do so. In other words, when the public is
+challenged to show why publishers should not receive some additional
+power, the most important reason of all—“We want to
+copy”—is disqualified in advance.
+ </p>
+ <p>
+ This leaves no way to argue against increasing copyright power except
+using side issues. Hence, opposition to stronger copyright powers today
+almost exclusively cites side issues, and never dares cite the freedom
+to distribute copies as a legitimate public value.
+ </p>
+ <p>
+ As a practical matter, the goal of maximization enables publishers to
+argue that “A certain practice is reducing our sales—or
+we think it might—so we presume it diminishes publication by
+some unknown amount, and therefore it should be prohibited.” We
+are led to the outrageous conclusion that the public good is measured
+by publishers’ sales: What’s good for General Media is good for the
+USA.
+ <a name="index-_0060_0060piracy_002c_0027_0027-erroneous-use-of-term-6">
+ </a>
+ </p>
+ <a name="The-Third-Error_003a-Maximizing-Publishers_0027-Power">
+ </a>
+ <h3 class="subheading">
+ The Third Error: Maximizing Publishers’ Power
+ </h3>
+ <a name="index-copyright_002c-erroneous-concept-of-maximizing-publishers_0027-power">
+ </a>
+ <p>
+ Once the publishers have obtained assent to the policy goal of
+maximizing publication output at any cost, their next step is to infer
+that this requires giving them the maximum possible powers—making
+copyright cover every imaginable use of a work, or applying
+some other legal tool such as “shrink wrap” licenses to
+equivalent effect. This goal, which entails the abolition of
+ <a name="index-copyright_002c-fair-use">
+ </a>
+ <a name="index-fair-use-_0028see-also-copyright_0029">
+ </a>
+ “fair use” and the “right of first sale,” is
+being pressed at every available level of government, from states of
+the US to international bodies.
+ </p>
+ <p>
+ This step is erroneous because strict copyright rules obstruct the
+creation of useful new works. For instance,
+ <a name="index-Shakespeare_002c-William">
+ </a>
+ Shakespeare borrowed the
+plots of some of his plays from works others had published a few decades
+before, so if today’s copyright law had been in effect, his plays would
+have been illegal.
+ </p>
+ <p>
+ Even if we wanted the highest possible rate of publication, regardless
+of cost to the public, maximizing publishers’ power is the wrong way to
+get it. As a means of promoting progress, it is self-defeating.
+ </p>
+ <a name="The-Results-of-the-Three-Errors">
+ </a>
+ <h3 class="subheading">
+ The Results of the Three Errors
+ </h3>
+ <a name="index-copyright_002c-duration-of-term-of">
+ </a>
+ <p>
+ The current trend in copyright legislation is to hand publishers broader
+powers for longer periods of time. The conceptual basis of copyright,
+as it emerges distorted from the series of errors, rarely offers a basis
+for saying no. Legislators give lip service to the idea that copyright
+serves the public, while in fact giving publishers whatever they ask
+for.
+ </p>
+ <p>
+ For example, here is what Senator
+ <a name="index-Hatch_002c-Senator-Orrin">
+ </a>
+ Hatch said when introducing S. 483,
+ <a href="#FOOT37" name="DOCF37">
+ (37)
+ </a>
+ a 1995 bill to increase the term of copyright by 20 years:
+ </p>
+ <blockquote class="smallquotation">
+ <p>
+ I believe we are now at such a point with respect to the question of
+whether the current term of copyright adequately protects the
+interests of authors and the related question of whether the term of
+protection continues to provide a sufficient incentive for the
+creation of new works of authorship.
+ <a href="#FOOT38" name="DOCF38">
+ (38)
+ </a>
+ </p>
+ </blockquote>
+ <p>
+ This bill extended the copyright on already published works written
+since the 1920s. This change was a giveaway to publishers with no
+possible benefit to the public, since there is no way to retroactively
+increase now the number of books published back then. Yet it cost the
+public a freedom that is meaningful today—the freedom to
+redistribute books from that era.
+ </p>
+ <p>
+ The bill also extended the copyrights of works yet to be written. For
+works made for hire, copyright would last 95 years instead of the
+present 75 years. Theoretically this would increase the incentive to
+write new works; but any publisher that claims to need this extra
+incentive should be required to substantiate the claim with projected
+balance sheets for 75 years in the future.
+ </p>
+ <p>
+ Needless to say, Congress did not question the publishers’ arguments:
+a law extending copyright was enacted in 1998. It was officially
+called the
+ <a name="index-Sonny-Bono-Copyright-Term-Extension-Act-_0028also-known-as">
+ </a>
+ the Mickey Mouse Copyright Act
+ <em>
+ )
+ </em>
+ Sonny Bono Copyright Term Extension Act, named after one of
+its sponsors who died earlier that year. We usually call it the
+Mickey Mouse Copyright Act, since we presume its real motive was to
+prevent the copyright on the appearance of Mickey Mouse from expiring.
+Bono’s widow, who served the rest of his term, made this statement:
+ </p>
+ <blockquote class="smallquotation">
+ <p>
+ Actually,
+ <a name="index-Bono_002c-Congressman-Sonny">
+ </a>
+ Sonny wanted the term of copyright protection to last forever.
+I am informed by staff that such a change would violate the Constitution.
+I invite all of you to work with me to strengthen our copyright laws in
+all of the ways available to us. As you know, there is also
+ <a name="index-Valenti_002c-Jack">
+ </a>
+ Jack Valenti’s
+ <a href="#FOOT39" name="DOCF39">
+ (39)
+ </a>
+ proposal for term to last forever less one
+day. Perhaps the Committee may look at
+that next Congress.
+ <a href="#FOOT40" name="DOCF40">
+ (40)
+ </a>
+ </p>
+ </blockquote>
+ <a name="index-Supreme-Court_002c-US-2">
+ </a>
+ <p>
+ The Supreme Court later heard a case that sought to overturn the law
+on the grounds that the retroactive extension fails to serve the
+Constitution’s goal of promoting progress. The court responded by
+abdicating its responsibility to judge the question; on copyright, the
+Constitution requires only lip service.
+ <a name="index-copyright_002c-duration-of-term-of-1">
+ </a>
+ </p>
+ <p>
+ Another law, passed in 1997, made it a felony to make sufficiently many
+copies of any published work, even if you give them away to friends just
+to be nice. Previously this was not a crime in the US at all.
+ </p>
+ <a name="index-DMCA_002c-publishers-and">
+ </a>
+ <p>
+ An even worse law, the Digital Millennium Copyright Act (DMCA), was
+designed to bring back copy protection (which computer users detest)
+by making it a crime to break copy protection, or even publish
+information about how to break it. This law ought to be called the
+“Domination by Media Corporations Act” because it
+effectively offers publishers the chance to write their own copyright
+law. It says they can impose any restrictions whatsoever on the use
+of a work, and these restrictions take the force of law provided the
+work contains some sort of encryption or license manager to enforce
+them.
+ </p>
+ <p>
+ One of the arguments offered for this bill was that it would implement
+a recent treaty to increase copyright powers. The treaty was
+promulgated by the
+ <a name="index-World-_0060_0060Intellectual-Property_0027_0027-Organization-_0028WIPO_0029-_0028see-also-_0060_0060intellectual-property_0027_0027_0029-3">
+ </a>
+ World “Intellectual
+Property” Organization, an organization dominated by
+copyright- and patent-holding interests, with the aid of
+pressure from the
+ <a name="index-Clinton-administration">
+ </a>
+ Clinton administration; since the treaty only
+increases copyright power, whether it serves the public interest in
+any country is doubtful. In any case, the bill went far beyond what
+the treaty required.
+ </p>
+ <a name="index-libraries_002c-DMCA_002c-fair-use_002c-and-_0028see-also-DMCA_0029">
+ </a>
+ <p>
+ Libraries were a key source of opposition to this bill, especially to
+the aspects that block the forms of copying that are considered
+ <a name="index-copyright_002c-fair-use-and-libraries">
+ </a>
+ fair use. How did the publishers respond? Former
+representative
+ <a name="index-Schroeder_002c-Pat">
+ </a>
+ Pat Schroeder, now a lobbyist for the
+ <a name="index-copyright_002c-Association-of-American-Publishers">
+ </a>
+ <a name="index-Association-of-American-Publishers-_0028see-also-copyright_0029">
+ </a>
+ Association of
+American Publishers, said that the publishers “could not live
+with what [the libraries were] asking for.” Since the libraries
+were asking only to preserve part of the status quo, one might respond
+by wondering how the publishers had survived until the present
+day.
+ </p>
+ <a name="index-copyright_002c-disregard-for-US-Constitution_0027s-view-of">
+ </a>
+ <p>
+ Congressman
+ <a name="index-Frank_002c-Congressman-Barney">
+ </a>
+ Barney Frank, in a meeting with me and others who opposed
+this bill, showed how far the US Constitution’s view of copyright
+has been disregarded. He said that new powers, backed by criminal
+penalties, were needed urgently because the “movie industry is
+worried,” as well as the “music industry” and other
+“industries.” I asked him, “But is this in the
+public interest?” His response was telling: “Why are you
+talking about the public interest? These creative people don’t have
+to give up their rights for the public interest!” The
+“industry” has been identified with the “creative
+people” it hires, copyright has been treated as its entitlement,
+and the Constitution has been turned upside down.
+ <a name="index-Constitution_002c-copyright-and-US-1">
+ </a>
+ </p>
+ <a name="index-DMCA_002c-and-fair-use">
+ </a>
+ <p>
+ The DMCA was enacted in 1998. As enacted, it says that fair use remains
+nominally legitimate, but allows publishers to prohibit all software or
+hardware that you could practice it with. Effectively, fair use
+is prohibited.
+ </p>
+ <p>
+ Based on this law, the movie industry has imposed censorship on free
+software for reading and playing DVDs, and even on the information
+about how to read them. In April 2001, Professor
+ <a name="index-Felten_002c-Edward">
+ </a>
+ Edward Felten of
+Princeton University was intimidated by lawsuit threats from the
+ <a name="index-Recording-Industry-Association-of-America-_0028RIAA_0029">
+ </a>
+ Recording Industry Association of America (RIAA) into withdrawing a
+scientific paper stating what he had learned about a proposed
+encryption system for restricting access to recorded music.
+ </p>
+ <a name="index-libraries_002c-e_002dbooks-and">
+ </a>
+ <a name="index-e_002dbooks">
+ </a>
+ <p>
+ We are also beginning to see e-books that take away many of readers’
+traditional freedoms—for instance, the freedom to lend a book
+to your friend, to sell it to a used book store, to borrow it from a
+library, to buy it without giving your name to a corporate data bank,
+even the freedom to read it twice. Encrypted e-books generally
+restrict all these activities—you can read them only with
+special secret software designed to restrict you.
+ </p>
+ <p>
+ I will never buy one of these encrypted, restricted e-books, and I
+hope you will reject them too. If an e-book doesn’t give you the same
+freedoms as a traditional paper book, don’t accept it!
+ </p>
+ <p>
+ Anyone independently releasing software that can read restricted
+e-books risks prosecution. A Russian programmer,
+ <a name="index-Sklyarov_002c-Dmitry">
+ </a>
+ Dmitry Sklyarov, was
+arrested in 2001 while visiting the US to speak at a conference,
+because he had written such a program in
+ <a name="index-Russia-1">
+ </a>
+ Russia, where it was lawful
+to do so. Now Russia is preparing a law to prohibit it too, and the
+ <a name="index-European-Union-1">
+ </a>
+ European Union recently adopted one.
+ </p>
+ <p>
+ Mass-market e-books have been a commercial failure so far, but not
+because readers chose to defend their freedom; they were unattractive
+for other reasons, such as that computer display screens are not easy
+surfaces to read from. We can’t rely on this happy accident to
+protect us in the long term; the next attempt to promote e-books will
+use “electronic paper”—book-like objects into
+which an encrypted, restricted e-book can be downloaded. If this
+paper-like surface proves more appealing than today’s display screens,
+we will have to defend our freedom in order to keep it. Meanwhile,
+e-books are making inroads in niches:
+ <a name="index-NYU-1">
+ </a>
+ NYU and other dental schools
+require students to buy their textbooks in the form of restricted
+e-books.
+ <a name="index-e_002dbooks-1">
+ </a>
+ </p>
+ <p>
+ The media companies are not satisfied yet. In 2001,
+ <a name="index-Disney-1">
+ </a>
+ Disney-funded
+Senator
+ <a name="index-Hollings_002c-Senator-Ernest-1">
+ </a>
+ Hollings proposed a bill called the
+ <a name="index-Security-Systems-Standards-and-Certification-Act-_0028SSSCA_0029-_0028see-also-Consumer-Broadband-and-Digital-Television-Promotion-Act-_0028CBDTPA_0029_0029-1">
+ </a>
+ “Security Systems
+Standards and Certification Act”
+(SSSCA),
+ <a href="#FOOT41" name="DOCF41">
+ (41)
+ </a>
+ which would require all computers
+(and other digital recording and playback devices) to have
+government-mandated copy-restriction systems. That is their ultimate
+goal, but the first item on their agenda is to prohibit any equipment
+that can tune digital
+ <a name="index-HDTV">
+ </a>
+ HDTV unless it is designed to be impossible for
+the public to “tamper with” (i.e., modify for their own
+purposes). Since free software is software that users can modify, we
+face here for the first time a proposed law that explicitly prohibits
+free software for a certain job. Prohibition of other jobs will
+surely follow. If the
+ <a name="index-FCC">
+ </a>
+ FCC adopts this rule, existing free software
+such as
+ <a name="index-GNU_002c-GNU-Radio">
+ </a>
+ GNU Radio would be censored.
+ </p>
+ <p>
+ To block these bills and rules requires political
+action.
+ <a href="#FOOT42" name="DOCF42">
+ (42)
+ </a>
+ </p>
+ <a name="Finding-the-Right-Bargain">
+ </a>
+ <h3 class="subheading">
+ Finding the Right Bargain
+ </h3>
+ <a name="index-copyright_002c-_0060_0060copyright-bargain_0027_0027-2">
+ </a>
+ <p>
+ What is the proper way to decide copyright policy? If copyright is a
+bargain made on behalf of the public, it should serve the public
+interest above all. The government’s duty when selling the public’s
+freedom is to sell only what it must, and sell it as dearly as possible.
+At the very least, we should pare back the extent of copyright as much
+as possible while maintaining a comparable level of publication.
+ </p>
+ <p>
+ Since we cannot find this minimum price in freedom through competitive
+bidding, as we do for construction projects, how can we find it?
+ </p>
+ <p>
+ One possible method is to reduce copyright privileges in stages, and
+observe the results. By seeing if and when measurable diminutions in
+publication occur, we will learn how much copyright power is really
+necessary to achieve the public’s purposes. We must judge this by
+actual observation, not by what publishers say will happen, because
+they have every incentive to make exaggerated predictions of doom if
+their powers are reduced in any way.
+ </p>
+ <p>
+ Copyright policy includes several independent dimensions, which can be
+adjusted separately. After we find the necessary minimum for one policy
+dimension, it may still be possible to reduce other dimensions of
+copyright while maintaining the desired publication level.
+ </p>
+ <p>
+ One important dimension of copyright is its duration, which is now
+typically on the order of a century. Reducing the monopoly on copying
+to ten years, starting from the date when a work is published, would be
+a good first step. Another aspect of copyright, which covers the
+making of derivative works, could continue for a longer period.
+ </p>
+ <a name="index-copyright_002c-duration-of-term-of-2">
+ </a>
+ <p>
+ Why count from the date of publication? Because copyright on
+unpublished works does not directly limit readers’ freedom; whether we
+are free to copy a work is moot when we do not have copies. So giving
+authors a longer time to get a work published does no harm. Authors
+(who generally do own the copyright prior to publication) will rarely
+choose to delay publication just to push back the end of the copyright
+term.
+ </p>
+ <p>
+ Why ten years? Because that is a safe proposal; we can be confident on
+practical grounds that this reduction would have little impact on the
+overall viability of publishing today. In most media and genres,
+successful works are very profitable in just a few years, and even
+successful works are usually out of print well before ten. Even for
+reference works, whose useful life may be many decades, ten-year
+copyright should suffice: updated editions are issued regularly, and
+many readers will buy the copyrighted current edition rather than copy a
+ten-year-old public domain version.
+ </p>
+ <p>
+ Ten years may still be longer than necessary; once things settle down,
+we could try a further reduction to tune the system. At a panel on
+copyright at a literary convention, where I proposed the ten-year term,
+a noted fantasy author sitting beside me objected vehemently, saying
+that anything beyond five years was intolerable.
+ </p>
+ <p>
+ But we don’t have to apply the same time span to all kinds of works.
+Maintaining the utmost uniformity of copyright policy is not crucial
+to the public interest, and copyright law already has many exceptions
+for specific uses and media. It would be foolish to pay for every
+highway project at the rates necessary for the most difficult projects
+in the most expensive regions of the country; it is equally foolish to
+“pay” for all kinds of art with the greatest price in
+freedom that we find necessary for any one kind.
+ </p>
+ <p>
+ So perhaps novels, dictionaries, computer programs, songs, symphonies,
+and movies should have different durations of copyright, so that we can
+reduce the duration for each kind of work to what is necessary for many
+such works to be published. Perhaps movies over one hour long could
+have a 20-year copyright, because of the expense of producing them.
+In my own field, computer programming, three years should suffice,
+because product cycles are even shorter than that.
+ </p>
+ <p>
+ Another dimension of copyright policy is the extent of
+ <a name="index-copyright_002c-fair-use-1">
+ </a>
+ <a name="index-fair-use-_0028see-also-copyright_0029-1">
+ </a>
+ fair use: some
+ways of reproducing all or part of a published work that are legally
+permitted even though it is copyrighted. The natural first step in
+reducing this dimension of copyright power is to permit occasional
+private small-quantity noncommercial copying and distribution among
+individuals. This would eliminate the intrusion of the copyright
+police into people’s private lives, but would probably have little
+effect on the sales of published works. (It may be necessary to take
+other legal steps to ensure that shrink-wrap licenses cannot be used
+to substitute for copyright in restricting such copying.) The
+experience of
+ <a name="index-Napster">
+ </a>
+ Napster shows that we should also permit noncommercial
+verbatim redistribution to the general public—when so many of
+the public want to copy and share, and find it so useful, only
+draconian measures will stop them, and the public deserves to get what
+it wants.
+ </p>
+ <p>
+ For novels, and in general for works that are used for entertainment,
+noncommercial verbatim redistribution may be sufficient freedom for
+the readers. Computer programs, being used for functional purposes
+(to get jobs done), call for additional freedoms beyond that,
+including the freedom to publish an improved version. See “The Free
+Software Definition,” in this book, for an explanation of the
+freedoms that software users should have. But it may be an acceptable
+compromise for these freedoms to be universally available only after a
+delay of two or three years from the program’s publication.
+ </p>
+ <p>
+ Changes like these could bring copyright into line with the public’s
+wish to use digital technology to copy. Publishers will no doubt find
+these proposals “unbalanced”; they may threaten to take
+their marbles and go home, but they won’t really do it, because the
+game will remain profitable and it will be the only game in town.
+ </p>
+ <p>
+ As we consider reductions in copyright power, we must make sure media
+companies do not simply replace it with end-user license agreements.
+It would be necessary to prohibit the use of contracts to apply
+restrictions on copying that go beyond those of copyright. Such
+limitations on what mass-market nonnegotiated contracts can require
+are a standard part of the US legal system.
+ <a name="index-copyright_002c-_0060_0060copyright-bargain_0027_0027-3">
+ </a>
+ </p>
+ <a name="A-Personal-Note">
+ </a>
+ <h3 class="subheading">
+ A Personal Note
+ </h3>
+ <a name="index-call-to-action_002c-do-not-surrender-freedom-in-author_0027s-name">
+ </a>
+ <a name="index-users_002c-premise-of-author-supremacy-_0028see-also-ownership_0029-4">
+ </a>
+ <p>
+ I am a software designer, not a legal scholar. I’ve become concerned
+with copyright issues because there’s no avoiding them in the world of
+computer networks, such as the Internet. As a user of computers and networks for 30 years, I value the freedoms that we have lost, and the ones we
+may lose next. As an author, I can reject the romantic mystique of the
+author as semidivine creator, often cited by publishers to justify
+increased copyright powers for authors—powers which these authors
+will then sign away to publishers.
+ </p>
+ <p>
+ Most of this article consists of facts and reasoning that you can
+check, and proposals on which you can form your own opinions. But I ask
+you to accept one thing on my word alone: that authors like me don’t
+deserve special power over you. If you wish to reward me further for
+the software or books I have written, I would gratefully accept a
+check—but please don’t surrender your freedom in my name.
+ </p>
+ <div class="footnote">
+ <hr>
+ <h3>
+ Footnotes
+ </h3>
+ <h3>
+ <a href="#DOCF36" name="FOOT36">
+ (36)
+ </a>
+ </h3>
+ <a name="index-Fox-Film-Corp_002e-v_002e-Doyal-1">
+ </a>
+ <p>
+ <cite>
+ Fox Film Corp. v. Doyal,
+ </cite>
+ 286 US 123, 1932.
+ </p>
+ <h3>
+ <a href="#DOCF37" name="FOOT37">
+ (37)
+ </a>
+ </h3>
+ <p>
+ <cite>
+ Congressional Record,
+ </cite>
+ S. 483, “The Copyright Term Extension Act of 1995,” 2 March 1995, pp. S3390–4.
+ </p>
+ <h3>
+ <a href="#DOCF38" name="FOOT38">
+ (38)
+ </a>
+ </h3>
+ <p>
+ <cite>
+ Congressional
+Record,
+ </cite>
+ “Statement on Introduced Bills and Joint Resolutions,”
+2 March 1995, p. S3390,
+ <a href="http://gpo.gov/fdsys/pkg/CREC-1995-03-02/pdf/CREC-1995-03-02-pt1-PgS3390-2.pdf">
+ http://gpo.gov/fdsys/pkg/CREC-1995-03-02/pdf/CREC-1995-03-02-pt1-PgS3390-2.pdf
+ </a>
+ .
+ </p>
+ <h3>
+ <a href="#DOCF39" name="FOOT39">
+ (39)
+ </a>
+ </h3>
+ <p>
+ Jack Valenti was a longtime president of the Motion
+Picture Association of America.
+ </p>
+ <h3>
+ <a href="#DOCF40" name="FOOT40">
+ (40)
+ </a>
+ </h3>
+ <p>
+ <cite>
+ Congressional Record,
+ </cite>
+ remarks of
+Rep.
+ <a name="index-Bono_002c-Congresswoman-Mary">
+ </a>
+ Bono, 7 October 1998, p. H9952,
+ <a href="http://gpo.gov/fdsys/pkg/CREC-1998-10-07/pdf/CREC-1998-10-07-pt1-PgH9946.pdf">
+ http://gpo.gov/fdsys/pkg/CREC-1998-10-07/pdf/CREC-1998-10-07-pt1-PgH9946.pdf
+ </a>
+ .
+ </p>
+ <h3>
+ <a href="#DOCF41" name="FOOT41">
+ (41)
+ </a>
+ </h3>
+ <p>
+ Since renamed to the unpronounceable
+ <a name="index-Consumer-Broadband-and-Digital-Television-Promotion-Act-_0028CBDTPA_0029-2">
+ </a>
+ CBDTPA,
+for which a good mnemonic is “Consume, But Don’t Try
+Programming Anything,” but it really stands for the
+“Consumer Broadband and Digital Television Promotion
+Act.”
+ </p>
+ <h3>
+ <a href="#DOCF42" name="FOOT42">
+ (42)
+ </a>
+ </h3>
+ <p>
+ If you would like to help, I recommend the web
+sites
+ <a name="index-Defective-by-Design-_0028see-also-DRM_0029-2">
+ </a>
+ <a href="http://defectivebydesign.org">
+ http://defectivebydesign.org
+ </a>
+ ,
+ <a href="http://publicknowledge.org">
+ http://publicknowledge.org
+ </a>
+ , and
+ <a href="http://eff.org">
+ http://eff.org
+ </a>
+ .
+ </p>
+ </hr>
+ </div>
+ <hr size="2"/>
+