misinterpreting-copyright.html (36015B)
1 <!--#include virtual="/server/header.html" --> 2 <!-- Parent-Version: 1.96 --> 3 <!-- This page is derived from /server/standards/boilerplate.html --> 4 <!--#set var="TAGS" value="essays laws copyright" --> 5 <!--#set var="DISABLE_TOP_ADDENDUM" value="yes" --> 6 <title>Misinterpreting Copyright 7 - GNU Project - Free Software Foundation</title> 8 <!--#include virtual="/philosophy/po/misinterpreting-copyright.translist" --> 9 <!--#include virtual="/server/banner.html" --> 10 <!--#include virtual="/philosophy/ph-breadcrumb.html" --> 11 <!--GNUN: OUT-OF-DATE NOTICE--> 12 <!--#include virtual="/server/top-addendum.html" --> 13 <div class="article reduced-width"> 14 <h2>Misinterpreting Copyright—A Series of Errors</h2> 15 16 <address class="byline">by <a href="https://stallman.org/">Richard 17 Stallman</a></address> 18 19 <p> 20 Something strange and dangerous is happening in copyright law. Under 21 the US Constitution, copyright exists to benefit users—those 22 who read books, listen to music, watch movies, or run software—not 23 for the sake of publishers or authors. Yet even as people tend 24 increasingly to reject and disobey the copyright restrictions imposed 25 on them “for their own benefit,” the US government is 26 adding more restrictions, and trying to frighten the public into 27 obedience with harsh new penalties.</p> 28 <p> 29 How did copyright policies come to be diametrically opposed to their 30 stated purpose? And how can we bring them back into alignment with that 31 purpose? To understand, we should start by looking at the root of 32 United States copyright law: the US Constitution.</p> 33 34 <h3>Copyright in the US Constitution</h3> 35 <p> 36 When the US Constitution was drafted, the idea that authors were 37 entitled to a copyright monopoly was proposed—and rejected. 38 The founders of our country adopted a different premise, that 39 copyright is not a natural right of authors, but an artificial 40 concession made to them for the sake of progress. The Constitution 41 gives permission for a copyright system with this paragraph (Article 42 I, Section 8):</p> 43 <blockquote><p> 44 [Congress shall have the power] to promote the Progress of Science and 45 the useful Arts, by securing for limited Times to Authors and Inventors 46 the exclusive Right to their respective Writings and Discoveries. 47 </p></blockquote> 48 <p> 49 The Supreme Court has repeatedly affirmed that promoting progress means 50 benefit for the users of copyrighted works. For example, in <em>Fox Film 51 v. Doyal</em>, the court said,</p> 52 <blockquote><p> 53 The sole interest of the United States and the primary object in 54 conferring the [copyright] monopoly lie in the general benefits 55 derived by the public from the labors of authors. 56 </p></blockquote> 57 <p> 58 This fundamental decision explains why copyright is 59 not <b>required</b> by the Constitution, only <b>permitted</b> as an 60 option—and why it is supposed to last for “limited 61 times.” If copyright were a natural right, something that 62 authors have because they deserve it, nothing could justify 63 terminating this right after a certain period of time, any more than 64 everyone's house should become public property after a certain lapse 65 of time from its construction.</p> 66 67 <h3>The “copyright bargain”</h3> 68 <p> 69 The copyright system works by providing privileges and thus benefits 70 to publishers and authors; but it does not do this for their sake. 71 Rather, it does this to modify their behavior: to provide an incentive 72 for authors to write more and publish more. In effect, the government 73 spends the public's natural rights, on the public's behalf, as part of 74 a deal to bring the public more published works. Legal scholars call 75 this concept the “copyright bargain.” It is like a 76 government purchase of a highway or an airplane using taxpayers' 77 money, except that the government spends our freedom instead of our 78 money.</p> 79 <p> 80 But is the bargain as it exists actually a good deal for the public? 81 Many alternative bargains are possible; which one is best? Every 82 issue of copyright policy is part of this question. If we 83 misunderstand the nature of the question, we will tend to decide the 84 issues badly.</p> 85 <p> 86 The Constitution authorizes granting copyright powers to authors. In 87 practice, authors typically cede them to publishers; it is usually the 88 publishers, not the authors, who exercise these powers and get most of 89 the benefits, though authors may get a small portion. Thus it is 90 usually the publishers that lobby to increase copyright powers. To 91 better reflect the reality of copyright rather than the myth, this 92 article refers to publishers rather than authors as the holders of 93 copyright powers. It also refers to the users of copyrighted works as 94 “readers,” even though using them does not always mean 95 reading, because “the users” is remote and abstract.</p> 96 97 <h3>The first error: “striking a balance”</h3> 98 <p> 99 The copyright bargain places the public first: benefit for the reading 100 public is an end in itself; benefits (if any) for publishers are just 101 a means toward that end. Readers' interests and publishers' interests 102 are thus qualitatively unequal in priority. The first step in 103 misinterpreting the purpose of copyright is the elevation of the 104 publishers to the same level of importance as the readers.</p> 105 <p> 106 It is often said that US copyright law is meant to “strike a 107 balance” between the interests of publishers and readers. Those 108 who cite this interpretation present it as a restatement of the basic 109 position stated in the Constitution; in other words, it is supposed to 110 be equivalent to the copyright bargain.</p> 111 <p> 112 But the two interpretations are far from equivalent; they are 113 different conceptually, and different in their implications. The 114 balance concept assumes that the readers' and publishers' interests 115 differ in importance only quantitatively, in <em>how much 116 weight</em> we should give them, and in what actions they apply to. 117 The term “stakeholders” is often used to frame the issue 118 in this way; it assumes that all kinds of interest in a policy 119 decision are equally important. This view rejects the qualitative 120 distinction between the readers' and publishers' interests which is at 121 the root of the government's participation in the copyright 122 bargain.</p> 123 <p> 124 The consequences of this alteration are far-reaching, because the 125 great protection for the public in the copyright bargain—the 126 idea that copyright privileges can be justified only in the name of 127 the readers, never in the name of the publishers—is discarded 128 by the “balance” interpretation. Since the interest of 129 the publishers is regarded as an end in itself, it can justify 130 copyright privileges; in other words, the “balance” 131 concept says that privileges can be justified in the name of someone 132 other than the public.</p> 133 <p> 134 As a practical matter, the consequence of the “balance” 135 concept is to reverse the burden of justification for changes in 136 copyright law. The copyright bargain places the burden on the 137 publishers to convince the readers to cede certain freedoms. The 138 concept of balance reverses this burden, practically speaking, because 139 there is generally no doubt that publishers will benefit from 140 additional privilege. Unless harm to the readers can be proved, 141 sufficient to “outweigh” this benefit, we are led to 142 conclude that the publishers are entitled to almost any privilege they 143 request.</p> 144 <p> 145 Since the idea of “striking a balance” between publishers and 146 readers denies the readers the primacy they are entitled to, we must 147 reject it.</p> 148 149 <h3>Balancing against what?</h3> 150 <p> 151 When the government buys something for the public, it acts on behalf 152 of the public; its responsibility is to obtain the best possible 153 deal—best for the public, not for the other party in the 154 agreement.</p> 155 <p> 156 For example, when signing contracts with construction companies to build 157 highways, the government aims to spend as little as possible of the 158 public's money. Government agencies use competitive bidding to push the 159 price down.</p> 160 <p> 161 As a practical matter, the price cannot be zero, because contractors 162 will not bid that low. Although not entitled to special 163 consideration, they have the usual rights of citizens in a free 164 society, including the right to refuse disadvantageous contracts; even 165 the lowest bid will be high enough for some contractor to make money. 166 So there is indeed a balance, of a kind. But it is not a deliberate 167 balancing of two interests each with claim to special consideration. 168 It is a balance between a public goal and market forces. The 169 government tries to obtain for the taxpaying motorists the best deal 170 they can get in the context of a free society and a free market.</p> 171 <p> 172 In the copyright bargain, the government spends our freedom instead of 173 our money. Freedom is more precious than money, so government's 174 responsibility to spend our freedom wisely and frugally is even 175 greater than its responsibility to spend our money thus. Governments 176 must never put the publishers' interests on a par with the public's 177 freedom.</p> 178 179 <h3>Not “balance” but “trade-off”</h3> 180 <p> 181 The idea of balancing the readers' interests against the publishers' 182 is the wrong way to judge copyright policy, but there are indeed two 183 interests to be weighed: two interests <b>of the readers</b>. Readers 184 have an interest in their own freedom in using published works; 185 depending on circumstances, they may also have an interest in 186 encouraging publication through some kind of incentive system.</p> 187 <p> 188 The word “balance,” in discussions of copyright, has come 189 to stand as shorthand for the idea of “striking a balance” 190 between the readers and the publishers. Therefore, to use the word 191 “balance” in regard to the readers' two interests would be 192 confusing.<a href="#footnote1">[1]</a> We need another term.</p> 193 <p> 194 In general, when one party has two goals that partly conflict, and 195 cannot completely achieve both of them, we call this a 196 “trade-off.” Therefore, rather than speaking of 197 “striking the right balance” between parties, we should 198 speak of “finding the right trade-off between spending our 199 freedom and keeping it.”</p> 200 201 <h3>The second error: maximizing one output</h3> 202 <p> 203 The second mistake in copyright policy consists of adopting the goal 204 of maximizing—not just increasing—the number of 205 published works. The erroneous concept of “striking a 206 balance” elevated the publishers to parity with the readers; 207 this second error places them far above the readers.</p> 208 <p> 209 When we purchase something, we do not generally buy the whole quantity 210 in stock or the most expensive model. Instead we conserve funds for 211 other purchases, by buying only what we need of any particular good, and 212 choosing a model of sufficient rather than highest quality. The 213 principle of diminishing returns suggests that spending all our money on 214 one particular good is likely to be an inefficient allocation of resources; 215 we generally choose to keep some money for another use.</p> 216 <p> 217 Diminishing returns applies to copyright just as to any other purchase. 218 The first freedoms we should trade away are those we miss the least, 219 and whose sacrifice gives the largest encouragement to publication. As we trade 220 additional freedoms that cut closer to home, we find that each trade is 221 a bigger sacrifice than the last, while bringing a smaller increment in 222 literary activity. Well before the increment becomes zero, we may well 223 say it is not worth its incremental price; we would then settle on a 224 bargain whose overall result is to increase the amount of publication, 225 but not to the utmost possible extent.</p> 226 <p> 227 Accepting the goal of maximizing publication rejects all these wiser, 228 more advantageous bargains in advance—it dictates that the 229 public must cede nearly all of its freedom to use published works, for 230 just a little more publication.</p> 231 232 <h3>The rhetoric of maximization</h3> 233 <p> 234 In practice, the goal of maximizing publication regardless of the cost 235 to freedom is supported by widespread rhetoric which asserts that 236 public copying is illegitimate, unfair, and intrinsically wrong. For 237 instance, the publishers call people who copy “pirates,” a 238 smear term designed to equate sharing information with your neighbor 239 with attacking a ship. (This smear term was formerly used by authors 240 to describe publishers who found lawful ways to publish unauthorized 241 editions; its modern use by the publishers is almost the reverse.) 242 This rhetoric directly rejects the constitutional basis for copyright, 243 but presents itself as representing the unquestioned tradition of the 244 American legal system.</p> 245 <p> 246 The “pirate” rhetoric is typically accepted because it 247 so pervades the media that few people realize how radical it is. It 248 is effective because if copying by the public is fundamentally 249 illegitimate, we can never object to the publishers' demand that we 250 surrender our freedom to do so. In other words, when the public is 251 challenged to show why publishers should not receive some additional 252 power, the most important reason of all—“We want to 253 copy”—is disqualified in advance.</p> 254 <p> 255 This leaves no way to argue against increasing copyright power except 256 using side issues. Hence, opposition to stronger copyright powers today 257 almost exclusively cites side issues, and never dares cite the freedom 258 to distribute copies as a legitimate public value.</p> 259 <p> 260 As a practical matter, the goal of maximization enables publishers to 261 argue that “A certain practice is reducing our sales—or 262 we think it might—so we presume it diminishes publication by 263 some unknown amount, and therefore it should be prohibited.” We 264 are led to the outrageous conclusion that the public good is measured 265 by publishers' sales: What's good for General Media is good for the 266 USA.</p> 267 268 <h3>The third error: maximizing publishers' power</h3> 269 <p> 270 Once the publishers have obtained assent to the policy goal of 271 maximizing publication output at any cost, their next step is to infer 272 that this requires giving them the maximum possible powers—making 273 copyright cover every imaginable use of a work, or applying 274 some other legal tool such as “shrink wrap” licenses to 275 equivalent effect. This goal, which entails the abolition of 276 “fair use” and the “right of first sale,” is 277 being pressed at every available level of government, from states of 278 the US to international bodies.</p> 279 <p> 280 This step is erroneous because strict copyright rules obstruct the 281 creation of useful new works. For instance, Shakespeare borrowed the 282 plots of some of his plays from works others had published a few decades 283 before, so if today's copyright law had been in effect, his plays would 284 have been illegal.</p> 285 <p> 286 Even if we wanted the highest possible rate of publication, regardless 287 of cost to the public, maximizing publishers' power is the wrong way to 288 get it. As a means of promoting progress, it is self-defeating.</p> 289 290 <h3>The results of the three errors</h3> 291 <p> 292 The current trend in copyright legislation is to hand publishers broader 293 powers for longer periods of time. The conceptual basis of copyright, 294 as it emerges distorted from the series of errors, rarely offers a basis 295 for saying no. Legislators give lip service to the idea that copyright 296 serves the public, while in fact giving publishers whatever they ask 297 for.</p> 298 <p> 299 For example, here is what Senator Hatch said when introducing S. 483, 300 a 1995 bill to increase the term of copyright by 20 years:</p> 301 302 <blockquote><p> 303 I believe we are now at such a point with respect to the question of 304 whether the current term of copyright adequately protects the interests 305 of authors and the related question of whether the term of protection 306 continues to provide a sufficient incentive for the creation of new 307 works of authorship. 308 </p></blockquote> 309 <p> 310 This bill extended the copyright on already published works written 311 since the 1920s. This change was a giveaway to publishers with no 312 possible benefit to the public, since there is no way to retroactively 313 increase now the number of books published back then. Yet it cost the 314 public a freedom that is meaningful today—the freedom to 315 redistribute books from that era. Note the use of the propaganda 316 term, “<a href="/philosophy/words-to-avoid.html#Protection" 317 >protect</a>,” which embodies the second of the three errors.</p> 318 <p> 319 The bill also extended the copyrights of works yet to be written. For 320 works made for hire, copyright would last 95 years instead of the 321 present 75 years. Theoretically this would increase the incentive to 322 write new works; but any publisher that claims to need this extra 323 incentive should be required substantiate the claim with projected 324 balance sheets for 75 years in the future.</p> 325 <p> 326 Needless to say, Congress did not question the publishers' arguments: 327 a law extending copyright was enacted in 1998. It was officially 328 called the Sonny Bono Copyright Term Extension Act, named after one of 329 its sponsors who died earlier that year. We usually call it the 330 Mickey Mouse Copyright Act, since we presume its real motive was to 331 prevent the copyright on the appearance of Mickey Mouse from expiring. 332 Bono's widow, who served the rest of his term, made this 333 statement:</p> 334 335 <blockquote><p> 336 Actually, Sonny wanted the term of copyright protection to last 337 forever. I am informed by staff that such a change would violate the 338 Constitution. I invite all of you to work with me to strengthen our 339 copyright laws in all of the ways available to us. As you know, there 340 is also Jack Valenti's proposal for term to last forever less one 341 day. Perhaps the Committee may look at that next Congress. 342 </p></blockquote> 343 <p> 344 The Supreme Court later heard a case that sought to overturn the law 345 on the grounds that the retroactive extension fails to serve the 346 Constitution's goal of promoting progress. The court responded by 347 abdicating its responsibility to judge the question; on copyright, the 348 Constitution requires only lip service.</p> 349 <p> 350 Another law, passed in 1997, made it a felony to make sufficiently many 351 copies of any published work, even if you give them away to friends just 352 to be nice. Previously this was not a crime in the US at all.</p> 353 <p> 354 An even worse law, the Digital Millennium Copyright Act (DMCA), was 355 designed to bring back what was then called “copy 356 protection”—now known 357 as <a href="/proprietary/proprietary-drm.html">DRM</a> (Digital 358 Restrictions Management)—which users already detested, 359 by making it a crime to defeat the restrictions, or even publish 360 information about how to defeat them. This law ought to be called the 361 “Domination by Media Corporations Act” because it 362 effectively offers publishers the chance to write their own copyright 363 law. It says they can impose any restrictions whatsoever on the use 364 of a work, and these restrictions take the force of law provided the 365 work contains some sort of encryption or license manager to enforce 366 them.</p> 367 <p> 368 One of the arguments offered for this bill was that it would implement 369 a recent treaty to increase copyright powers. The treaty was 370 promulgated by the World <a href="/philosophy/not-ipr.html">Intellectual 371 Property</a> Organization, an organization dominated by 372 copyright- and patent-holding interests, with the aid of 373 pressure from the Clinton administration; since the treaty only 374 increases copyright power, whether it serves the public interest in 375 any country is doubtful. In any case, the bill went far beyond what 376 the treaty required.</p> 377 <p> 378 Libraries were a key source of opposition to this bill, especially to 379 the aspects that block the forms of copying that are considered 380 fair use. How did the publishers respond? Former 381 representative Pat Schroeder, now a lobbyist for the Association of 382 American Publishers, said that the publishers “could not live 383 with what [the libraries were] asking for.” Since the libraries 384 were asking only to preserve part of the status quo, one might respond 385 by wondering how the publishers had survived until the present 386 day.</p> 387 <p> 388 Congressman Barney Frank, in a meeting with me and others who opposed 389 this bill, showed how far the US Constitution's view of copyright 390 has been disregarded. He said that new powers, backed by criminal 391 penalties, were needed urgently because the “movie industry is 392 worried,” as well as the “music industry” and other 393 “industries.” I asked him, “But is this in the 394 public interest?” His response was telling: “Why are you 395 talking about the public interest? These creative people don't have 396 to give up their rights for the public interest!” The 397 “industry” has been identified with the “creative 398 people” it hires, copyright has been treated as its entitlement, 399 and the Constitution has been turned upside down.</p> 400 <p> 401 The DMCA was enacted in 1998. As enacted, it says that fair use remains 402 nominally legitimate, but allows publishers to prohibit all software or 403 hardware that you could practice it with. Effectively, fair use 404 is prohibited.</p> 405 <p> 406 Based on this law, the movie industry has imposed censorship on free 407 software for reading and playing DVDs, and even on the information 408 about how to read them. In April 2001, Professor Edward Felten of 409 Princeton University was intimidated by lawsuit threats from the 410 Recording Industry Association of America (RIAA) into withdrawing a 411 scientific paper stating what he had learned about a proposed 412 encryption system for restricting access to recorded music.</p> 413 <p> 414 We are also beginning to see e-books that take away many of readers' 415 traditional freedoms—for instance, the freedom to lend a book 416 to your friend, to sell it to a used book store, to borrow it from a 417 library, to buy it without giving your name to a corporate data bank, 418 even the freedom to read it twice. Encrypted e-books generally 419 restrict all these activities—you can read them only with 420 special secret software designed to restrict you.</p> 421 <p> 422 I will never buy one of these encrypted, restricted e-books, and I 423 hope you will reject them too. If an e-book doesn't give you the same 424 freedoms as a traditional paper book, don't accept it!</p> 425 <p> 426 Anyone independently releasing software that can read restricted 427 e-books risks prosecution. A Russian programmer, Dmitry Sklyarov, was 428 arrested in 2001 while visiting the US to speak at a conference, 429 because he had written such a program in Russia, where it was lawful 430 to do so. Now Russia is preparing a law to prohibit it too, and the 431 European Union recently adopted one.</p> 432 <p> 433 Mass-market e-books have been a commercial failure so far, but not 434 because readers chose to defend their freedom; they were unattractive 435 for other reasons, such as that computer display screens are not easy 436 surfaces to read from. We can't rely on this happy accident to 437 protect us in the long term; the next attempt to promote e-books will 438 use “electronic paper”—book-like objects into 439 which an encrypted, restricted e-book can be downloaded. If this 440 paper-like surface proves more appealing than today's display screens, 441 we will have to defend our freedom in order to keep it. Meanwhile, 442 e-books are making inroads in niches: NYU and other dental schools 443 require students to buy their textbooks in the form of restricted 444 e-books.</p> 445 <p> 446 The media companies are not satisfied yet. In 2001, Disney-funded 447 Senator Hollings proposed a bill called the “Security Systems 448 Standards and Certification Act” 449 (SSSCA)<a href="#footnote2">[2]</a>, which would require all computers 450 (and other digital recording and playback devices) to have 451 government-mandated copy-restriction systems. That is their ultimate 452 goal, but the first item on their agenda is to prohibit any equipment 453 that can tune digital HDTV unless it is designed to be impossible for 454 the public to “tamper with” (i.e., modify for their own 455 purposes). Since free software is software that users can modify, we 456 face here for the first time a proposed law that explicitly prohibits 457 free software for a certain job. Prohibition of other jobs will 458 surely follow. If the FCC adopts this rule, existing free software 459 such as GNU Radio would be censored.</p> 460 <p> 461 To block these bills and rules requires political 462 action.<a href="#footnote3">[3]</a></p> 463 464 <h3>Finding the right bargain</h3> 465 <p> 466 What is the proper way to decide copyright policy? If copyright is a 467 bargain made on behalf of the public, it should serve the public 468 interest above all. The government's duty when selling the public's 469 freedom is to sell only what it must, and sell it as dearly as possible. 470 At the very least, we should pare back the extent of copyright as much 471 as possible while maintaining a comparable level of publication.</p> 472 <p> 473 Since we cannot find this minimum price in freedom through competitive 474 bidding, as we do for construction projects, how can we find it?</p> 475 <p> 476 One possible method is to reduce copyright privileges in stages, and 477 observe the results. By seeing if and when measurable diminutions in 478 publication occur, we will learn how much copyright power is really 479 necessary to achieve the public's purposes. We must judge this by 480 actual observation, not by what publishers say will happen, because 481 they have every incentive to make exaggerated predictions of doom if 482 their powers are reduced in any way.</p> 483 <p> 484 Copyright policy includes several independent dimensions, which can be 485 adjusted separately. After we find the necessary minimum for one policy 486 dimension, it may still be possible to reduce other dimensions of 487 copyright while maintaining the desired publication level.</p> 488 <p> 489 One important dimension of copyright is its duration, which is now 490 typically on the order of a century. Reducing the monopoly on copying 491 to ten years, starting from the date when a work is published, would be 492 a good first step. Another aspect of copyright, which covers the 493 making of derivative works, could continue for a longer period.</p> 494 <p> 495 Why count from the date of publication? Because copyright on 496 unpublished works does not directly limit readers' freedom; whether we 497 are free to copy a work is moot when we do not have copies. So giving 498 authors a longer time to get a work published does no harm. Authors 499 (who generally do own the copyright prior to publication) will rarely 500 choose to delay publication just to push back the end of the copyright 501 term.</p> 502 <p> 503 Why ten years? Because that is a safe proposal; we can be confident on 504 practical grounds that this reduction would have little impact on the 505 overall viability of publishing today. In most media and genres, 506 successful works are very profitable in just a few years, and even 507 successful works are usually out of print well before ten. Even for 508 reference works, whose useful life may be many decades, ten-year 509 copyright should suffice: updated editions are issued regularly, and 510 many readers will buy the copyrighted current edition rather than copy a 511 ten-year-old public domain version.</p> 512 <p> 513 Ten years may still be longer than necessary; once things settle down, 514 we could try a further reduction to tune the system. At a panel on 515 copyright at a literary convention, where I proposed the ten-year term, 516 a noted fantasy author sitting beside me objected vehemently, saying 517 that anything beyond five years was intolerable.</p> 518 <p> 519 But we don't have to apply the same time span to all kinds of works. 520 Maintaining the utmost uniformity of copyright policy is not crucial 521 to the public interest, and copyright law already has many exceptions 522 for specific uses and media. It would be foolish to pay for every 523 highway project at the rates necessary for the most difficult projects 524 in the most expensive regions of the country; it is equally foolish to 525 “pay” for all kinds of art with the greatest price in 526 freedom that we find necessary for any one kind.</p> 527 <p> 528 So perhaps novels, dictionaries, computer programs, songs, symphonies, 529 and movies should have different durations of copyright, so that we can 530 reduce the duration for each kind of work to what is necessary for many 531 such works to be published. Perhaps movies over one hour long could 532 have a twenty-year copyright, because of the expense of producing them. 533 In my own field, computer programming, three years should suffice, 534 because product cycles are even shorter than that.</p> 535 <p> 536 Another dimension of copyright policy is the extent of fair use: some 537 ways of reproducing all or part of a published work that are legally 538 permitted even though it is copyrighted. The natural first step in 539 reducing this dimension of copyright power is to permit occasional 540 private small-quantity noncommercial copying and distribution among 541 individuals. This would eliminate the intrusion of the copyright 542 police into people's private lives, but would probably have little 543 effect on the sales of published works. (It may be necessary to take 544 other legal steps to ensure that shrink-wrap licenses cannot be used 545 to substitute for copyright in restricting such copying.) The 546 experience of Napster shows that we should also permit noncommercial 547 verbatim redistribution to the general public—when so many of 548 the public want to copy and share, and find it so useful, only 549 draconian measures will stop them, and the public deserves to get what 550 it wants.</p> 551 <p> 552 For novels, and in general for works that are used for entertainment, 553 noncommercial verbatim redistribution may be sufficient freedom for 554 the readers. Computer programs, being used for functional purposes 555 (to get jobs done), call for additional freedoms beyond that, 556 including the freedom to publish an improved version. See “Free 557 Software Definition,” in this book, for an explanation of the 558 freedoms that software users should have. But it may be an acceptable 559 compromise for these freedoms to be universally available only after a 560 delay of two or three years from the program's publication.</p> 561 <p> 562 Changes like these could bring copyright into line with the public's 563 wish to use digital technology to copy. Publishers will no doubt find 564 these proposals “unbalanced”; they may threaten to take 565 their marbles and go home, but they won't really do it, because the 566 game will remain profitable and it will be the only game in town.</p> 567 <p> 568 As we consider reductions in copyright power, we must make sure media 569 companies do not simply replace it with end-user license agreements. 570 It would be necessary to prohibit the use of contracts to apply 571 restrictions on copying that go beyond those of copyright. Such 572 limitations on what mass-market nonnegotiated contracts can require 573 are a standard part of the US legal system.</p> 574 575 <h3>A personal note</h3> 576 <p> 577 I am a software designer, not a legal scholar. I've become concerned 578 with copyright issues because there's no avoiding them in the world of 579 computer networks, such as the Internet. As a user of 580 computers and networks for 30 years, I value the freedoms that we 581 have lost, and the ones we may lose next. As an author, I can reject 582 the romantic mystique of the author as semidivine 583 <a href="/philosophy/words-to-avoid.html#Creator">creator</a>, often cited 584 by publishers to justify increased copyright powers for authors—powers 585 which these authors will then sign away to publishers.</p> 586 <p> 587 Most of this article consists of facts and reasoning that you can 588 check, and proposals on which you can form your own opinions. But I ask 589 you to accept one thing on my word alone: that authors like me don't 590 deserve special power over you. If you wish to reward me further for 591 the software or books I have written, I would gratefully accept a 592 check—but please don't surrender your freedom in my name.</p> 593 <div class="column-limit"></div> 594 595 <h3 class="footnote">Footnotes</h3> 596 <ol> 597 <li id="footnote1">See Julian Sanchez’s 598 article <a href="http://www.juliansanchez.com/2011/02/04/the-trouble-with-balance-metaphors/">“The 599 Trouble with ‘Balance’ Metaphors”</a> for an 600 examination of “how the analogy between sound judgment and 601 balancing weights may constrain our thinking in unhealthy 602 ways.”</li> 603 <li id="footnote2">Since renamed to the unpronounceable CBDTPA, 604 for which a good mnemonic is “Consume, But Don't Try 605 Programming Anything,” but it really stands for the 606 “Consumer Broadband and Digital Television Promotion 607 Act.”</li> 608 <li id="footnote3">If you would like to help, I recommend the Web 609 sites <a href="https://www.defectivebydesign.org/">DefectiveByDesign.org</a>, 610 <a href="https://www.publicknowledge.org/">publicknowledge.org</a> 611 and <a href="https://www.eff.org/">www.eff.org</a>.</li> 612 </ol> 613 614 <hr class="no-display" /> 615 <div class="edu-note c"><p id="fsfs">This essay is published in 616 <a href="https://shop.fsf.org/product/free-software-free-society/"><cite>Free 617 Software, Free Society: The Selected Essays of Richard 618 M. 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