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