reevaluating-copyright.html (23149B)
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>Reevaluating Copyright: The Public Must Prevail 7 - GNU Project - Free Software Foundation</title> 8 <!--#include virtual="/philosophy/po/reevaluating-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!--GNUN: OUT-OF-DATE NOTICE--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>Reevaluating Copyright: The Public Must Prevail</h2> 15 16 <address class="byline">by <a href="https://www.stallman.org/">Richard 17 Stallman</a> <a href="#ft1"><sup>[1]</sup></a></address> 18 19 <p>The legal world is aware that digital information technology poses 20 “problems for copyright,” but has not traced these 21 problems to their root cause: a fundamental conflict between 22 publishers of copyrighted works and the users of these works. The 23 publishers, understanding their own interest, have set forth a 24 proposal through the Clinton Administration to fix the 25 “problems” by deciding the conflict in their favor. This 26 proposal, the Lehman White Paper,<a href="#ft2"><sup>[2]</sup></a> was the 27 principal focus of the <cite>Innovation and the Information 28 Environment</cite> conference at the University of Oregon (November 29 1995).</p> 30 31 <p>John Perry Barlow,<a href="#ft3"><sup>[3]</sup></a> the keynote speaker, 32 began the conference by telling us how the Greatful Dead recognized 33 and dealt with this conflict. They decided it would be wrong to 34 interfere with copying of their performances on tapes, or with 35 distribution on the Internet, but saw nothing wrong in enforcing 36 copyright for CD recordings of their music.</p> 37 38 <p>Barlow did not analyze the reasons for treating these media 39 differently, and later Gary Glisson <a href="#ft4"><sup>[4]</sup></a> criticized 40 Barlow's idea that the Internet is inexplicably unique and unlike 41 anything else in the world. He argued that we should be able to 42 determine the implications of the Internet for copyright policy by the 43 same kind of analysis that we apply to other technologies. This paper 44 attempts to do just that.</p> 45 46 <p>Barlow suggested that our intuitions based on physical objects as 47 property do not transfer to information as property because 48 information is “abstract.” As Steven 49 Winter <a href="#ft5"><sup>[5]</sup></a> remarked, abstract property has existed 50 for centuries. Shares in a company, commodity futures, and even paper 51 money, are forms of property that are more or less abstract. Barlow 52 and others who argue that information should be free do not reject 53 these other kinds of abstract property. Clearly, the crucial 54 difference between information and acceptable kinds of property is not 55 abstractness per se. So what is it? I propose a simple and practical 56 explanation.</p> 57 58 <p>United States copyright law considers copyright a bargain between 59 the public and “authors” (although in practice, usually 60 publishers take over the authors' part of the bargain). The public 61 trades certain freedoms in exchange for more published works to 62 enjoy. Until the White Paper, our government had never proposed that 63 the public should trade <b>all</b> of its freedom to use published 64 works. Copyright involves giving up specific freedoms and retaining 65 others. This means that there are many alternative bargains that the 66 public could offer to publishers. So which bargain is the best one for 67 the public? Which freedoms are worth while for the public to trade, 68 and for what length of time? The answers depend on two things: how 69 much additional publication the public will get for trading a given 70 freedom, and how much the public benefits from keeping that 71 freedom.</p> 72 73 <p>This shows why making <a href="#later-1">intellectual property 74 decisions</a> by analogy to physical object property, or even to older 75 intellectual property policies, is a mistake. Winter argued 76 persuasively that it is possible to make such analogies, to stretch 77 our old concepts and apply them to new decisions.<a href= 78 "#ft6"><sup>[6]</sup></a> Surely this will reach some answer—but not a 79 good answer. Analogy is not a useful way of deciding what to buy or at 80 what price.</p> 81 82 <p>For example, we do not decide whether to build a highway in New 83 York City by analogy with a previous decision about a proposed highway 84 in Iowa. In each highway construction decision, the same factors apply 85 (cost, amount of traffic, taking of land or houses); if we made 86 highway decisions by analogy to previous highway decisions, we would 87 either build every proposed highway or none of them. Instead we judge 88 each proposed highway based on the pros and cons, whose magnitudes 89 vary from case to case. In copyright issues, too, we must weigh the 90 cost and benefits for today's situation and today's media, not as they 91 have applied to other media in the past.</p> 92 93 <p>This also shows why Laurence Tribe's principle, that rights 94 concerning speech should not depend on the choice of 95 medium,<a href="#ft7"><sup>[7]</sup></a> is not applicable to copyright 96 decisions. Copyright is a bargain with the public, not a natural 97 right. Copyright policy issues are about which bargains benefit the 98 public, not about what rights publishers or readers are entitled 99 to.</p> 100 101 <p>The copyright system developed along with the printing press. In 102 the age of the printing press, it was unfeasible for an ordinary 103 reader to copy a book. Copying a book required a printing press, and 104 ordinary readers did not have one. What's more, copying in this way 105 was absurdly expensive unless many copies were made—which means, 106 in effect, that only a publisher could copy a book economically.</p> 107 108 <p>So when the public traded to publishers the freedom to copy books, 109 they were selling something which they <b>could not use</b>. Trading 110 something you cannot use for something useful and helpful is always 111 good deal. Therefore, copyright was uncontroversial in the age of the 112 printing press, precisely because it did not restrict anything the 113 reading public might commonly do.</p> 114 115 <p>But the age of the printing press is gradually ending. The xerox 116 machine and the audio and video tape began the change; digital 117 information technology brings it to fruition. These advances make it 118 possible for ordinary people, not just publishers with specialized 119 equipment, to copy. And they do!</p> 120 121 <p>Once copying is a useful and practical activity for ordinary 122 people, they are no longer so willing to give up the freedom to do 123 it. They want to keep this freedom and exercise it instead of trading 124 it away. The copyright bargain that we have is no longer a good deal 125 for the public, and it is time to revise it—time for the law to 126 recognize the public benefit that comes from making and sharing 127 copies.</p> 128 129 <p>With this analysis, we see why rejection of the old copyright 130 bargain is not based on supposing that the Internet is ineffably 131 unique. The Internet is relevant because it facilitates copying and 132 sharing of writings by ordinary readers. The easier it is to copy and 133 share, the more useful it becomes, and the more copyright as it stands 134 now becomes a bad deal.</p> 135 136 <p>This analysis also explains why it makes sense for the Grateful 137 Dead to insist on copyright for CD manufacturing but not for 138 individual copying. CD production works like the printing press; it is 139 not feasible today for ordinary people, even computer owners, to copy 140 a CD into another CD. Thus, copyright for publishing CDs of music 141 remains painless for music listeners, just as all copyright was 142 painless in the age of the printing press. To restrict copying the 143 same music onto a digital audio tape does hurt the listeners, however, 144 and they are entitled to reject this restriction. (1999 note: the 145 practical situation for CDs has changed, in that many ordinary 146 computer users can now copy CDs. This means that we should now 147 consider CDs more like tapes. 2007 clarification: notwithstanding the 148 improvement in CD technology, it still makes sense to apply copyright 149 to commercial distribution while letting individuals copy freely.)</p> 150 151 <p>We can also see why the abstractness 152 of <a href="#later-1">intellectual property</a> is not the crucial 153 factor. Other forms of abstract property represent shares of 154 something. Copying any kind of share is intrinsically a zero-sum 155 activity; the person who copies benefits only by taking wealth away 156 from everyone else. Copying a dollar bill in a color copier is 157 effectively equivalent to shaving a small fraction off of every other 158 dollar and adding these fractions together to make one 159 dollar. Naturally, we consider this wrong.</p> 160 161 <p>By contrast, copying useful, enlightening or entertaining 162 information for a friend makes the world happier and better off; it 163 benefits the friend, and inherently hurts no one. It is a constructive 164 activity that strengthens social bonds.</p> 165 166 <p>Some readers may question this statement because they know 167 publishers claim that illegal copying causes them “loss.” 168 This claim is mostly inaccurate and partly misleading. More 169 importantly, it is begging the question.</p> 170 171 <ul> 172 <li>The claim is mostly inaccurate because it presupposes that the 173 friend would otherwise have bought a copy from the publisher. That 174 is occasionally true, but more often false; and when it is false, 175 the claimed loss does not occur.</li> 176 177 <li>The claim is partly misleading because the word 178 “loss” suggests events of a very different 179 nature—events in which something they have is taken away from 180 them. For example, if the bookstore's stock of books were burned, or 181 if the money in the register got torn up, that would really be a 182 “loss.” We generally agree it is wrong to do these 183 things to other people. 184 185 <p>But when your friend avoids the need to buy a copy of a book, 186 the bookstore and the publisher do not lose anything they had. A 187 more fitting description would be that the bookstore and publisher 188 get less income than they might have got. The same consequence can 189 result if your friend decides to play bridge instead of reading a 190 book. In a free market system, no business is entitled to cry 191 “foul” just because a potential customer chooses not 192 to deal with them.</p> 193 </li> 194 195 <li>The claim is begging the question because the idea of 196 “loss” is based on the assumption that the publisher 197 “should have” got paid. That is based on the assumption 198 that copyright exists and prohibits individual copying. But that is 199 just the issue at hand: what should copyright cover? If the public 200 decides it can share copies, then the publisher is not entitled to 201 expect to be paid for each copy, and so cannot claim there is a 202 “loss” when it is not. 203 204 <p>In other words, the “loss” comes from the copyright 205 system; it is not an inherent part of copying. Copying in itself 206 hurts no one.</p> 207 </li> 208 </ul> 209 210 <p>The most widely opposed provision of the White Paper is the system 211 of collective responsibility, whereby a computer owner is required to 212 monitor and control the activities of all users, on pain of being 213 punished for actions in which he was not a participant but merely 214 failed to actively prevent. Tim Sloan <a href="#ft8"><sup>[8]</sup></a> pointed 215 out that this gives copyright owners a privileged status not accorded 216 to anyone else who might claim to be damaged by a computer user; for 217 example, no one proposes to punish the computer owner if he fails 218 actively to prevent a user from defaming someone. It is natural for a 219 government to turn to collective responsibility for enforcing a law 220 that many citizens do not believe in obeying. The more digital 221 technology helps citizens share information, the more the government 222 will need draconian methods to enforce copyright against ordinary 223 citizens.</p> 224 225 <p>When the United States Constitution was drafted, the idea that 226 authors were entitled to a copyright monopoly was proposed—and 227 rejected.<a href="#ft9"><sup>[9]</sup></a> Instead, the founders of our country 228 adopted a different idea of copyright, one which places the public 229 first.<a href="#ft10"><sup>[10]</sup></a> Copyright in the United States is 230 supposed to exist for the sake of users; benefits for publishers and 231 even for authors are not given for the sake of those parties, but only 232 as an inducement to change their behavior. As the Supreme Court said 233 in <cite>Fox Film Corp. v. Doyal</cite>: “The sole interest of the United 234 States and the primary object in conferring the [copyright] monopoly 235 lie in the general benefits derived by the public from the labors of 236 authors.”<a href="#ft11"><sup>[11]</sup></a></p> 237 238 <p>Under the Constitution's view of copyright, if the public prefers 239 to be able to make copies in certain cases even if that means somewhat 240 fewer works are published, the public's choice is decisive. There is 241 no possible justification for prohibiting the public from copying what 242 it wants to copy.</p> 243 244 <p>Ever since the constitutional decision was made, publishers have 245 tried to reverse it by misinforming the public. They do this by 246 repeating arguments which presuppose that copyright is a natural right 247 of authors (not mentioning that authors almost always cede it to 248 publishers). People who hear these arguments, unless they have a firm 249 awareness that this presupposition is contrary to the basic premises 250 of our legal system, take for granted that it is the basis of that 251 system.</p> 252 253 <p>This error is so ingrained today that people who oppose new 254 copyright powers feel the need to do so by arguing that even authors 255 and publishers may be hurt by them. Thus, James 256 Boyle <a href="#ft12"><sup>[12]</sup></a> explains how a 257 strict <a href="#later-2">intellectual property system</a> can 258 interfere with writing new works. Jessica 259 Litman <a href="#ft13"><sup>[13]</sup></a> cites the copyright shelters which 260 historically allowed many new media to become popular. Pamela 261 Samuelson <a href="#ft14"><sup>[14]</sup></a> warns that the White Paper may 262 block the development of “third-wave” information 263 industries by locking the world into the “second-wave” 264 economic model that fit the age of the printing press.</p> 265 266 <p>These arguments can be very effective on those issues where they 267 are available, especially with a Congress and Administration dominated 268 by the idea that “What's good for General Media is good for the 269 USA.” But they fail to expose the fundamental falsehood on which 270 this domination is based; as a result, they are ineffective in the 271 long term. When these arguments win one battle, they do so without 272 building a general understanding that helps win the next battle. If we 273 turn to these arguments too much and too often, the danger is that we 274 may allow the publishers to replace the Constitution uncontested.</p> 275 276 <p>For example, the recently published position statement of the 277 Digital Future Coalition, an umbrella organization, lists many reasons 278 to oppose the White Paper, for the sake of authors, libraries, 279 education, poor Americans, technological progress, economic 280 flexibility, and privacy concerns—all valid arguments, but 281 concerned with side issues.<a href="#ft15"><sup>[15]</sup></a> Conspicuously 282 absent from the list is the most important reason of all: that many 283 Americans (perhaps most) want to continue making copies. The DFC fails 284 to criticize the core goal of the White Paper, which is to give more 285 power to publishers, and its central decision, to reject the 286 Constitution and place the publishers above the users. This silence 287 may be taken for consent.</p> 288 289 <p>Resisting the pressure for additional power for publishers depends 290 on widespread awareness that the reading and listening public are 291 paramount; that copyright exists for users and not vice versa. If the 292 public is unwilling to accept certain copyright powers, that is ipso 293 facto justification for not offering them. Only by reminding the 294 public and the legislature of the purpose of copyright and the 295 opportunity for the open flow of information can we ensure that the 296 public prevails.</p> 297 298 <h3 class="footnote">Later Notes</h3> 299 <ul> 300 <li id="later-1"><em>Intellectual property:</em> 301 This article was part of the 302 path that led me to recognize the <a href="/philosophy/not-ipr.html"> 303 bias and confusion in the term “intellectual 304 property”</a>. Today I believe that term should never be used 305 under any circumstances.</li> 306 307 <li id="later-2"><em>Intellectual property system:</em> 308 Here I fell into the 309 fashionable error of writing “intellectual property” when 310 what I meant was just “copyright.” This is like writing 311 “Europe” when you mean “France”—it 312 causes confusion that is easy to avoid.</li> 313 </ul> 314 315 <div class="infobox"> 316 <hr /> 317 <ol> 318 <li id="ft1">Published in <cite>Oregon Law Review</cite>, Spring 1996.</li> 319 320 <li id="ft2">Informational Infrastructure Task 321 Force, Intellectual Property and the National Information 322 Infrastructure: <cite>The Report of the Working Group on Intellectual 323 Property Rights</cite> (1995).</li> 324 325 <li id="ft3">John Perry Barlow, Remarks at the 326 <cite>Innovation and the Information Environment Conference</cite> (Nov. 327 1995). Mr. Barlow is one of the founders of the Electronic Frontier 328 Foundation, an organization which promotes freedom of expression in 329 digital media, and is also a former lyricist for the Grateful 330 Dead.</li> 331 332 <li id="ft4">Gary Glisson, Remarks at the 333 <cite>Innovation and the Information Environment Conference</cite> (Nov. 1995); 334 see also Gary Glisson, “A Practitioner's Defense of the NII White 335 Paper,” 75 <cite>Or. L. Rev.</cite> (1996), supporting the White Paper. 336 Mr. Glisson is a partner and chair of the Intellectual Property Group 337 at Lane Powell Spears Lubersky in Portland, Oregon.</li> 338 339 <li id="ft5">Steven Winter, Remarks at the 340 <cite>Innovation and the Information Environment Conference</cite> (Nov. 341 1995). Mr. Winter is a professor at the University of Miami School of 342 Law.</li> 343 344 <li id="ft6">Winter, supra note 5.</li> 345 346 <li id="ft7">See Laurence H. Tribe, “The 347 Constitution in Cyberspace: Law and Liberty Beyond the Electronic 348 Frontier,” <cite>Humanist</cite>, Sept.-Oct. 1991, at 15.</li> 349 350 <li id="ft8">Tim Sloan, Remarks at the <cite>Innovation 351 and the Information Environment Conference</cite> (Nov. 1995). Mr. Sloan is 352 a member of the National Telecommunication and Information 353 Administration.</li> 354 355 <li id="ft9">See Jane C. Ginsburg, “A Tale of Two 356 Copyrights: Literary Property in Revolutionary France and America,” in 357 <cite>Of Authors and Origins: Essays on Copyright Law</cite> 131, 137-38 (Brad 358 Sherman & Alain Strowel, eds., 1994), stating that the 359 Constitution's framers either meant to “subordinate[] the 360 author's interests to the public benefit,” or to “treat 361 the private and public interests … even-handedly.”</li> 362 363 <li id="ft10"><cite>U.S. Const.</cite>, art. I, p. 8, cl. 8 364 (“Congress shall have Power…to promote the Progress of 365 Science and useful Arts, by securing for limited Times to Authors and 366 Inventors the exclusive Right to their respective Writings and 367 Discoveries.”)</li> 368 369 <li id="ft11"><cite>286 U.S. 123</cite>, 127 (1932).</li> 370 371 <li id="ft12">James Boyle, Remarks at the 372 <cite>Innovation and the Information Environment Conference</cite> (Nov. 373 1995). Mr. Boyle is a Professor of Law at American University in 374 Washington, D.C.</li> 375 376 <li id="ft13">Jessica Litman, Remarks at the 377 <cite>Innovation and the Information Environment Conference</cite> (Nov. 378 1995). Ms. Litman is a Professor at Wayne State University Law School 379 in Detroit, Michigan.</li> 380 381 <li id="ft14">Pamela Samuelson, “The Copyright 382 Grab,” <cite>Wired</cite>, Jan. 1996. Ms. Samuelson is a Professor at Cornell Law 383 School.</li> 384 385 <li id="ft15">Digital Future Coalition, 386 “Broad-Based Coalition Expresses Concern Over Intellectual Property 387 Proposals,” Nov. 15, 1995<!-- (available at URL: 388 home.worldweb.net/dfc/press.html</a>)-->.</li> 389 </ol> 390 </div> 391 </div> 392 393 </div><!-- for id="content", starts in the include above --> 394 <!--#include virtual="/server/footer.html" --> 395 <div id="footer" role="contentinfo"> 396 <div class="unprintable"> 397 398 <p>Please send general FSF & GNU inquiries to <a 399 href="mailto:gnu@gnu.org"><gnu@gnu.org></a>. There are also <a 400 href="/contact/">other ways to contact</a> the FSF. 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