From 1ae0306a3cf2ea27f60b2d205789994d260c2cce Mon Sep 17 00:00:00 2001 From: Christian Grothoff Date: Sun, 11 Oct 2020 13:29:45 +0200 Subject: add i18n FSFS --- .../articles/en/misinterpreting-copyright.html | 677 +++++++++++++++++++++ 1 file changed, 677 insertions(+) create mode 100644 talermerchantdemos/blog/articles/en/misinterpreting-copyright.html (limited to 'talermerchantdemos/blog/articles/en/misinterpreting-copyright.html') diff --git a/talermerchantdemos/blog/articles/en/misinterpreting-copyright.html b/talermerchantdemos/blog/articles/en/misinterpreting-copyright.html new file mode 100644 index 0000000..7179e5b --- /dev/null +++ b/talermerchantdemos/blog/articles/en/misinterpreting-copyright.html @@ -0,0 +1,677 @@ + + +Misinterpreting Copyright +- GNU Project - Free Software Foundation + + +

Misinterpreting Copyright—A Series of Errors

+ +

by Richard Stallman

+ +

+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.

+

+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.

+ +

Copyright in the US Constitution

+

+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 paragraph (Article +I, Section 8):

+

+[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. +

+

+The Supreme Court has repeatedly affirmed that promoting progress means +benefit for the users of copyrighted works. For example, in Fox Film +v. Doyal, the court said,

+

+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. +

+

+This fundamental decision explains why copyright is +not required by the Constitution, only permitted 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.

+ +

The “copyright bargain”

+

+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.

+

+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.

+

+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.

+ +

The first error: “striking a balance”

+

+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.

+

+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.

+

+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 how much +weight 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.

+

+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.

+

+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.

+

+Since the idea of “striking a balance” between publishers and +readers denies the readers the primacy they are entitled to, we must +reject it.

+ +

Balancing against what?

+

+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.

+

+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.

+

+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.

+

+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.

+ +

Not “balance” but “trade-off”

+

+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 of the readers. 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.

+

+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.[1] We need another term.

+

+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.”

+ +

The second error: maximizing one output

+

+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.

+

+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.

+

+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.

+

+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.

+ +

The rhetoric of maximization

+

+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.

+

+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.

+

+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.

+

+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.

+ +

The third error: maximizing publishers' power

+

+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 +“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.

+

+This step is erroneous because strict copyright rules obstruct the +creation of useful new works. For instance, 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.

+

+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.

+ +

The results of the three errors

+

+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.

+

+For example, here is what Senator Hatch said when introducing S. 483, +a 1995 bill to increase the term of copyright by 20 years:

+ +

+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. +

+

+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. Note the use of the propaganda +term, “protect,” which embodies the second of the three errors.

+

+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 substantiate the claim with projected +balance sheets for 75 years in the future.

+

+Needless to say, Congress did not question the publishers' arguments: +a law extending copyright was enacted in 1998. It was officially +called the 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:

+ +

+Actually, 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 Jack Valenti's proposal for term to last forever less one +day. Perhaps the Committee may look at that next Congress. +

+

+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.

+

+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.

+

+An even worse law, the Digital Millennium Copyright Act (DMCA), was +designed to bring back what was then called “copy +protection” — now known +as DRM (Digital +Restrictions Management) — which users already detested, +by making it a crime to defeat the restrictions, or even publish +information about how to defeat them. 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.

+

+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 World Intellectual +Property Organization, an organization dominated by +copyright- and patent-holding interests, with the aid of +pressure from the 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.

+

+Libraries were a key source of opposition to this bill, especially to +the aspects that block the forms of copying that are considered +fair use. How did the publishers respond? Former +representative Pat Schroeder, now a lobbyist for the 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.

+

+Congressman 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.

+

+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.

+

+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 Edward Felten of +Princeton University was intimidated by lawsuit threats from the +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.

+

+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.

+

+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!

+

+Anyone independently releasing software that can read restricted +e-books risks prosecution. A Russian programmer, Dmitry Sklyarov, was +arrested in 2001 while visiting the US to speak at a conference, +because he had written such a program in Russia, where it was lawful +to do so. Now Russia is preparing a law to prohibit it too, and the +European Union recently adopted one.

+

+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: NYU and other dental schools +require students to buy their textbooks in the form of restricted +e-books.

+

+The media companies are not satisfied yet. In 2001, Disney-funded +Senator Hollings proposed a bill called the “Security Systems +Standards and Certification Act” +(SSSCA)[2], 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 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 FCC adopts this rule, existing free software +such as GNU Radio would be censored.

+

+To block these bills and rules requires political +action.[3]

+ +

Finding the right bargain

+

+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.

+

+Since we cannot find this minimum price in freedom through competitive +bidding, as we do for construction projects, how can we find it?

+

+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.

+

+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.

+

+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.

+

+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.

+

+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.

+

+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.

+

+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.

+

+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 twenty-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.

+

+Another dimension of copyright policy is the extent of 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 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.

+

+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 “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.

+

+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.

+

+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 personal note

+

+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.

+

+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.

+ +

Footnotes

+
    +
  1. +See Julian Sanchez’s +article “The +Trouble with ‘Balance’ Metaphors” for an +examination of “how the analogy between sound judgment and +balancing weights may constrain our thinking in unhealthy +ways.”
    2. +
  2. +Since renamed to the unpronounceable 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.”
    3. +
  3. +If you would like to help, I recommend the Web +sites DefectiveByDesign.org, +publicknowledge.org +and www.eff.org.
    4. +
+ +
+

This essay is published +in Free +Software, Free Society: The Selected Essays of Richard +M. Stallman.

+ + + + + + + -- cgit v1.2.3