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diff --git a/talermerchantdemos/blog/articles/scrap1_18.html b/talermerchantdemos/blog/articles/scrap1_18.html new file mode 100644 index 0000000..2a40735 --- /dev/null +++ b/talermerchantdemos/blog/articles/scrap1_18.html @@ -0,0 +1,996 @@ +<!-- 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"/> + |