Copyright versus Community in the Age of Computer Networks
Keynote speech at LIANZA conference, Christchurch Convention Centre, 12 October 2009
Tena koutou, tena koutou, tena koutou katoa. Today I have the privilege of introducing Richard Stallman, whose keynote speech is being sponsored by the School of Information Management at Victoria University of Wellington.
Richard has been working to promote software freedom for over 25 years. In 1983 he started the GNU project to develop a free operating system [the GNU system], and in 1985 he set up the Free Software Foundation. Every time you read or send a message to nz-libs, you use the Mailman software which is part of the GNU project. So whether you realize it or not, Richard's work has touched all of your lives.
I like to describe him as the most influential person most people have never heard of, although he tells me that that cannot possibly be true because it cannot be tested.
- We can't tell.
I said that—I still like it. His ideas about software freedom and free access to information were used by Tim Berners-Lee when he created the world's first web server, and in 1999 his musings about a free online encyclopedia inspired Jimmy Wales to set up what is now Wikipedia.
Today Richard will be talking to us about copyright vs community in the age of computer networks, and their implications for libraries. Richard.
I've been in New Zealand for a couple of weeks, and in the North Island it was raining most of the time. Now I know why they call gumboots “Wellingtons”. And then I saw somebody who was making chairs and tables out of ponga wood, and he called it fern-iture. Then we took the ferry to get here, and as soon as we got off, people started mocking and insulting us; but there were no hard feelings, they just wanted to make us really feel Picton.
The reason people usually invite me to give speeches is because of my work on free software. This is not a talk about free software; this talk answers the question whether the ideas of free software extend to other kinds of works. But in order for that to make sense, I'd better tell you briefly what free software means.
Free software is a matter of freedom, not price, so think of “free speech”, not “free beer”. Free software is software that respects the user's freedom, and there are four specific freedoms that the user deserves always to have.
- Freedom 0 is the freedom to run the program as you wish.
- Freedom 1 is the freedom to study the source code of the program and change it to make the program do what you wish.
- Freedom 2 is the freedom to help your neighbour; that is, the freedom to redistribute copies of the program, exact copies when you wish.
- And Freedom 3 is the freedom to contribute to your community. That's the freedom to publish your modified versions when you wish.
If the program gives you these four freedoms then it's free software, which means the social system of its distribution and use is an ethical system, one which respects the user's freedom and the social solidarity of the user's community. But if one of these freedoms is missing or insufficient, then it's proprietary software, nonfree software, user-subjugating software. It's unethical. It's not a contribution to society, it's a power grab. This unethical practice should not exist; the goal of the free software movement is to put an end to it. All software should be free, so that all users can be free.
Proprietary software keeps the users divided and helpless: divided, because they're forbidden to share it, and helpless, because they don't have the source code so they can't change it. They can't even study it to verify what it's really doing to them, and many proprietary programs have malicious features which spy on the user, restrict the user, even back doors to attack the user.
For instance, Microsoft Windows has a back door with which Microsoft can forcibly install software changes, without getting permission from the supposed owner of the computer. You may think it's your computer, but if you've made the mistake of having Windows running in it, then really Microsoft has owned your computer. Computers need to be defenestrated, which means either throw Windows out of the computer, or throw the computer out the window.
But any proprietary software gives the developers unjust power over the users. Some of the developers abuse this power more, and some abuse it less, but none of them ought to have it. You deserve to have control of your computing, and not be forcibly dependent on a particular company. So you deserve free software.
At the end of speeches about free software, people sometimes ask whether these same freedoms and ideas apply to other things. If you have a copy of a published work on your computer, it makes sense to ask whether you should have the same four freedoms—whether it's ethically essential that you have them or not. And that's the question that I'm going to address today.
If you have a copy of something that's not software, for the most part, the only thing that might deny you any of these freedoms is copyright law. With software that's not so. The main ways of making software nonfree are contracts and withholding the source code from the users. Copyright is a sort of secondary, back up method. For other things there's no such distinction as between source code and executable code.
For instance, if we're talking about a text, if you can see the text to read it, there's nothing in the text that you can't see. So it's not the same kind of issue exactly as software. It's for the most part only copyright that might deny you these freedoms.
So the question can be restated: “What should copyright law allow you to do with published works? What should copyright law say?”
Copyright has developed along with copying technology, so it's useful to review the history of copying technology. Copying developed in the ancient world, where you'd use a writing instrument on a writing surface. You'd read one copy and write another.
This technology was rather inefficient, but another interesting characteristic was that it had no economy of scale. To write ten copies would take ten times as long as to write one copy. It required no special equipment other than the equipment for writing, and it required no special skill other than literacy itself. The result was that copies of any particular book were made in a decentralized manner. Wherever there was a copy, if someone wanted to copy it, he could.
There was nothing like copyright in the ancient world. If you had a copy and wanted to copy it, nobody was going to tell you you weren't allowed—except if the local prince didn't like what the book said, in which case he might punish you for copying it. But that's not copyright, but rather something closely related, namely censorship. To this day, copyright is often used in attempts to censor people.
That went on for thousands of years, but then there was a big advance in copying technology, namely the printing press. The printing press made copying more efficient, but not uniformly. [This was] because mass production copying became a lot more efficient, but making one copy at a time didn't benefit from the printing press. In fact, you were better off just writing it by hand; that would be faster than trying to print one copy.
The printing press has an economy of scale: it takes a lot of work to set the type, but then you can make many copies very fast. Also, the printing press and the type were expensive equipment that most people didn't own; and the ability to use them, most literate people didn't know. Using a press was a different skill from writing. The result was a centralized manner of producing copies: the copies of any given book would be made in a few places, and then they would be transported to wherever someone wanted to buy copies.
Copyright began in the age of the printing press. Copyright in England began as a system of censorship in the 1500s. I believe it was originally meant to censor Protestants, but it was turned around and used to censor Catholics and presumably lots of others as well. According to this law, in order to publish a book you had to get permission from the Crown, and this permission was granted in the form of a perpetual monopoly to publish it. This was allowed to lapse in the 1680s, I believe [it expired in 1695 according to the Wikipedia entry]. The publishers wanted it back again, but what they got was something somewhat different. The Statute of Anne gave authors a copyright, and only for 14 years, although the author could renew it once.
This was a totally different idea—a temporary monopoly for the author, instead of a perpetual monopoly for the publisher. The idea developed that copyright was a means of promoting writing.
When the US constitution was written, some people wanted authors to be entitled to a copyright, but that was rejected. Instead, the US Constitution says that Congress can optionally adopt a copyright law, and if there is a copyright law, its purpose is to promote progress. In other words, the purpose is not benefits for copyright holders or anybody they do business with, but for the general public. Copyright has to last a limited time; publishers keep hoping for us to forget about this.
Here we have an idea of copyright which is an industrial regulation on publishers, controlled by authors, and designed to provide benefits to the public at large. It functioned this way because it didn't restrict the readers.
Now in the early centuries of printing, and still I believe in the 1790s, lots of readers wrote copies by hand because they couldn't afford printed copies. Nobody ever expected copyright law to be something other than an industrial regulation. It wasn't meant to stop people from writing copies, it was meant to regulate the publishers. Because of this it was easy to enforce, uncontroversial, and arguably beneficial for society.
It was easy to enforce, because it only had to be enforced against publishers. And it's easy to find the unauthorized publishers of a book—you go to a bookstore and say “where do these copies come from?”. You don't have to invade everybody's home and everybody's computer to do that.
It was uncontroversial because, as the readers were not restricted, they had nothing to complain about. Theoretically they were restricted from publishing, but not being publishers and not having printing presses, they couldn't do that anyway. In what they actually could do, they were not restricted.
It was arguably beneficial because the general public, according to the concepts of copyright law, traded away a theoretical right they were not in a position to exercise. In exchange, they got the benefits of more writing.
Now if you trade away something you have no possible use for, and you get something you can use in exchange, it's a positive trade. Whether or not you could have gotten a better deal some other way, that's a different question, but at least it's positive.
So if this were still in the age of the printing press, I don't think I'd be complaining about copyright law. But the age of the printing press is gradually giving way to the age of the computer networks—another advance in copying technology that makes copying more efficient, and once again not uniformly so.
Here's what we had in the age of the printing press: mass production very efficient, one at a time copying still just as slow as the ancient world. Digital technology gets us here: they've both benefited, but one-off copying has benefited the most.
We get to a situation much more like the ancient world, where one at a time copying is not so much worse [i.e., harder] than mass production copying. It's a little bit less efficient, a little bit less good, but it's perfectly cheap enough that hundreds of millions of people do it. Consider how many people write CDs once in a while, even in poor countries. You may not have a CD-writer yourself, so you go to a store where you can do it.
This means that copyright no longer fits in with the technology as it used to. Even if the words of copyright law had not changed, they wouldn't have the same effect. Instead of an industrial regulation on publishers controlled by authors, with the benefits set up to go to the public, it is now a restriction on the general public, controlled mainly by the publishers, in the name of the authors.
In other words, it's tyranny. It's intolerable and we can't allow it to continue this way.
As a result of this change, [copyright] is no longer easy to enforce, no longer uncontroversial, and no longer beneficial.
It's no longer easy to enforce because now the publishers want to enforce it against each and every person, and to do this requires cruel measures, draconian punishments, invasions of privacy, abolition of our basic ideas of justice. There's almost no limit to how far they will propose to go to prosecute the War on Sharing.
It's no longer uncontroversial. There are political parties in several countries whose basic platform is “freedom to share”.
It's no longer beneficial because the freedoms that we conceptually traded away (because we couldn't exercise them), we now can exercise. They're tremendously useful, and we want to exercise them.
What would a democratic government do in this situation?
It would reduce copyright power. It would say: “The trade we made on behalf of our citizens, trading away some of their freedom which now they need, is intolerable. We have to change this; we can't trade away the freedom that is important.” We can measure the sickness of democracy by the tendency of governments to do the exact opposite around the world, extending copyright power when they should reduce it.
One example is in the dimension of time. Around the world we see pressure to make copyright last longer and longer and longer.
A wave of this started in the US in 1998. Copyright was extended by 20 years on both past and future works. I do not understand how they hope to convince the now dead or senile writers of the 20s and 30s to write more back then by extending copyright on their works now. If they have a time machine with which to inform them, they haven't used it. Our history books don't say that there was a burst of vigor in the arts in the 20s when all the artists found out that their copyrights would be extended in 1998.
It's theoretically conceivable that 20 years more copyright on future works would convince people to make more effort in producing those works. But not anyone rational, because the discounted present value of 20 more years of copyright starting 75 years in the future—if it's a work made for hire—and probably even longer if it's a work with an individual copyright holder, is so small it couldn't persuade any rational person to do anything different. Any business that wants to claim otherwise ought to present its projected balance sheets for 75 years in the future, which of course they can't do because none of them really looks that far ahead.
The real reason for this law, the desire that prompted various companies to purchase this law in the US Congress, which is how laws are decided on for the most part, was they had lucrative monopolies and they wanted those monopolies to continue.
For instance, Disney was aware that the first film in which Mickey Mouse appeared would go into the public domain in a few years, and then anybody would be free to draw that same character as part of other works. Disney didn't want that to happen. Disney borrows a lot from the public domain, but is determined never to give the slightest thing back. So Disney paid for this law, which we refer to as the Mickey Mouse Copyright Act.
The movie companies say they want perpetual copyright, but the US Constitution won't let them get that officially. So they came up with a way to get the same result unofficially: “perpetual copyright on the installment plan”. Every 20 years they extend copyright for 20 more years. So that at any given time, any given work has a date when it will supposedly fall into the public domain. But that date is like tomorrow, it never comes. By the time you get there they will have postponed it, unless we stop them next time.
That's one dimension, the dimension of duration. But even more important is the dimension of breadth: which uses of the work does copyright cover?
In the age of the printing press, copyright wasn't supposed to cover all uses of a copyrighted work, because copyright regulated certain uses that were the exceptions in a broader space of unregulated uses. There were certain things you were simply allowed to do with your copy of a book.
Now the publishers have got the idea that they can turn our computers against us, and use them to seize total power over all use of published works. They want to set up a pay-per-view universe. They're doing it with DRM (Digital Restrictions Management)—the intentional features of software that's designed to restrict the user. And often the computer itself is designed to restrict the user.
The first way in which the general public saw this was in DVDs. A movie on a DVD was usually encrypted, and the format was secret. The DVD conspiracy kept this secret because they said anyone that wants to make DVD players has to join the conspiracy, promise to keep the format secret, and promise to design the DVD players to restrict the users according to the rules, which say it has to stop the user from doing this, from doing that, from doing that—a precise set of requirements, all of which are malicious towards us.
It worked for a while, but then some people figured out the secret format, and published free software capable of reading the movie on a DVD and playing it. Then the publishers said “since we can't actually stop them, we have to make it a crime”. And they started that in the US in 1998 with the Digital Millennium Copyright Act, which imposed censorship on software capable of doing such jobs.
So that particular piece of free software was the subject of a court case. Its distribution in the US is forbidden; the US practices censorship of software.
The movie companies are well aware that they can't really make that program disappear—it's easy enough to find it. So they designed another encryption system, which they hoped would be harder to break, and it's called AACS, or the axe.
The AACS conspiracy makes precise rules about all players. For instance, in 2011 it's going to be forbidden to make analog video outputs. So all video outputs will have to be digital, and they will carry the signal encrypted into a monitor specially designed to keep secrets from the user. That is malicious hardware. They say that the purpose of this is to “close the analog hole”. I'll show you a couple of analog holes (Stallman takes off his glasses): here's one and here's another, that they'd like to poke out permanently.
How do I know about these conspiracies? The reason is they're not secret—they have websites. The AACS website proudly describes the contracts that manufacturers have to sign, which is how I know about this requirement. It proudly states the names of the companies that have established this conspiracy, which include Microsoft and Apple, and Intel, and Sony, and Disney, and IBM.
A conspiracy of companies designed to restrict the public's access to technology ought to be prosecuted as a serious crime, like a conspiracy to fix prices, except it's worse, so the prison sentences for this should be longer. But these companies are quite confident that our governments are on their side against us. They have no fear against being prosecuted for these conspiracies, which is why they don't bother to hide them.
In general DRM is set up by a conspiracy of companies. Once in a while a single company can do it, but generally it requires a conspiracy between technology companies and publishers, so [it's] almost always a conspiracy.
They thought that nobody would ever be able to break the AACS, but about three and a half years ago someone released a free program capable of decrypting that format. However, it was totally useless, because in order to run it you need to know the key.
And then, six months later, I saw a photo of two adorable puppies, with 32 hex digits above them, and I wondered: “Why put those two things together? I wonder if those numbers are some important key, and someone could have put the numbers together with the puppies, figuring people would copy the photo of the puppies because they were so cute. This would protect the key from being wiped out.”
And that's what it was—that was the key to break the axe. People posted it, and editors deleted it, because laws in many countries now conscript them to censor this information. It was posted again, they deleted it; eventually they gave up, and in two weeks this number was posted in over 700,000 web sites.
That's a big outpouring of public disgust with DRM. But it didn't win the war, because the publishers changed the key. Not only that: with HD DVD, this was adequate to break the DRM, but not with Blu-ray. Blu-ray has an additional level of DRM and so far there is no free software that can break it, which means that you must regard Blu-ray disks as something incompatible with your own freedom. They are an enemy with which no accommodation is possible, at least not with our present level of knowledge.
Never accept any product designed to attack your freedom. If you don't have the free software to play a DVD, you mustn't buy or rent any DVDs, or accept them even as gifts, except for the rare non-encrypted DVDs, which there are a few of. I actually have a few [of these]—I don't have any encrypted DVDs, I won't take them.
So this is how things stand in video, but we've also seen DRM in music.
For instance, about ten years ago we started to see things that looked like compact disks, but they weren't written quite like compact disks. They didn't follow the standard. We called them 'corrupt disks', and the idea of them was that they would play in an audio player, but it was impossible to read them on a computer. These different methods had various problems.
Eventually Sony came up with a clever idea. They put a program on the disk, so that if you stuck the disk into a computer, the disk would install the program. This program was designed like a virus to take control of the system. It's called a 'root kit', meaning that it has things in it to break the security of the system so that it can install the software deep inside the system, and modify various parts of the system.
For instance, it modified the command you could use to examine the system to see if the software was present, so as to disguise itself. It modified the command you could use to delete some of these files, so that it wouldn't really delete them. Now all of this is a serious crime, but it's not the only one Sony committed, because the software also included free software code—code that had been released under the GNU General Public License.
Now the GNU GPL is a copyleft license, and that means it says “Yes, you're free to put this code into other things, but when you do, the entire program that you put things into you must release as free software under the same license. And you must make the source code available to users, and to inform them of their rights you must give them a copy of this license when they get the software.”
Sony didn't comply with all that. That's commercial copyright infringement, which is a felony. They're both felonies, but Sony wasn't prosecuted because the government understands that the purpose of the government and the law is to maintain the power of those companies over us, not to help defend our freedom in any way.
People got angry and they sued Sony. However, they made a mistake. They focused their condemnation not on the evil purpose of this scheme, but only on the secondary evils of the various methods that Sony used. So Sony settled the lawsuits and promised that in the future, when it attacks our freedom, it will not do those other things.
Actually, that particular corrupt disk scheme was not so bad, because if you were not using Windows it would not affect you at all. Even if you were using Windows, there's a key on the keyboard—if you remembered every time to hold it down, then the disk wouldn't install the software. But of course it's hard to remember that every time; you're going to slip up some day. This shows the kind of thing we've had to deal with.
Fortunately music DRM is receding. Even the main record companies sell downloads without DRM. But we see a renewed effort to impose DRM on books.
You see, the publishers want to take away the traditional freedoms of book readers—freedom to do things such as borrow a book from the public library, or lend it to a friend; to sell a book to a used book store, or buy it anonymously paying cash (which is the only way I buy books—we've got to resist the temptations to let Big Brother know everything that we're doing.)
Even the freedom to keep the book as long as you wish, and read it as many times as you wish, they plan to get rid of.
The way they do it is with DRM. They knew that so many people read books and would get angry if these freedoms were taken away that they didn't believe they could buy a law specifically to abolish these freedoms—there would be too much opposition. Democracy is sick, but once in a while people manage to demand something. So they came up with a two-stage plan.
First, take away these freedoms from ebooks, and second, convince people to switch from paper books to ebooks. They've succeeded with stage 1.
In the US they did it with the Digital Millennium Copyright Act, and in New Zealand, that was part of the year-ago Copyright Act; censorship on software that can break DRM was part of that law. That's an unjust provision; it's got to be repealed.
The second stage is convince people to switch from printed books to ebooks; that didn't go so well.
One publisher in 2001 had the idea they would make their line of ebooks really popular if they started it with my biography. So they found an author and the author asked me if I'd cooperate, and I said “Only if this ebook is published without encryption, without DRM”. The publisher wouldn't go along with that, and I just stuck to it—I said no. Eventually we found another publisher who was willing to do this—in fact willing to publish the book under a free license giving you the four freedoms—so the book was then published, and sold a lot of copies on paper.
But in any case, ebooks failed at the beginning of this decade. People just didn't want to read them very much. And I said, “they will try again”. We saw an amazing number of news articles about electronic ink (or is it electronic paper, I can never remember which), and it occurred to me probably the reason there's so many is the publishers want us to think about this. They want us to be eager for the next generation of ebook readers.
Now they're upon us. Things like the Sony Shreader (its official name is the Sony Reader, but if you put on 'sh' it explains what it's designed to do to your books), and the Amazon Swindle, designed to swindle you out of your traditional freedoms without your noticing. Of course, they call it the Kindle which is what it's going to do to your books.
The Kindle is an extremely malicious product, almost as malicious as Microsoft Windows. They both have spy features, they both have Digital Restrictions Management, and they both have back doors.
In the case of the Kindle, the only way you can buy a book is to buy it from Amazon, and Amazon requires you to identify yourself, so they know everything that you've bought.
Then there is Digital Restrictions Management, so you can't lend the book or sell it to a used bookstore, and the library can't lend it either.
And then there's the back door, which we found out about about three months ago, because Amazon used it. Amazon sent a command to all the Kindles to erase a particular book, namely 1984 by George Orwell. Yes, they couldn't have picked a more ironic book to erase. So that's how we know that Amazon has a back door with which it can erase books remotely.
What else it can do, who knows? Maybe it's like Microsoft Windows. Maybe Amazon can remotely upgrade the software, which means that whatever malicious things are not in it now, they could put them in it tomorrow.
This is intolerable—any one of these restrictions is intolerable. They want to create a world where nobody lends books to anybody anymore.
Imagine that you visit a friend and there are no books on the shelf. It's not that your friend doesn't read, but his books are all inside a device, and of course he can't lend you those books. The only way he could lend you any one of those books is to lend you his whole library, which is obviously a ridiculous thing to ask anybody to do. So there goes friendship for people who love books.
Make sure that you inform people what this device implies. It means other readers will no longer be your friends, because you will be acting like a jerk toward them. Spread the word preemptively. This device is your enemy. It's the enemy of everyone who reads. The people who don't recognize that are the people who are thinking so short-term that they don't see it. It's our job to help them see beyond the momentary convenience to the implications of this device.
I have nothing against distributing books in digital form, if they are not designed to take away our freedom. Strictly speaking, it is possible to have an ebook reader:
- that is not designed to attack you,
- which runs free software and not proprietary software,
- which doesn't have DRM,
- which doesn't make people identify yourself to get a book,
- which doesn't have a back door, [and]
- which doesn't restrict what you can do with the files on your machine.
It's possible, but the big companies really pushing ebooks are doing it to attack our freedom, and we mustn't stand for that. This is what governments are doing in cahoots with big business to attack our freedom, by making copyright harsher and nastier, more restrictive than ever before.
But what should they do? Governments should make copyright power less. Here are my specific proposals.
First of all, there is the dimension of time. I propose copyright should last ten years, starting from the date of publication of a work.
Why from the date of publication? Because before that, we don't have copies. It doesn't matter to us whether we would have been allowed to copy our copies that we don't have, so I figure we might as well let the authors have as much time as it takes to arrange publication, and then start the clock.
But why ten years? I don't know about in this country, but in the US, the publication cycle has got shorter and shorter. Nowadays almost all books are remaindered within two years and out-of-print within three. So ten years is more than three times the usual publication cycle—that should be plenty comfortable.
But not everybody agrees. I once proposed this in a panel discussion with fiction writers, and the award-winning fantasy writer next to me said “Ten years? No way. Anything more than five years is intolerable.” You see, he had a legal dispute with his publisher. His books seemed to be out of print, but the publisher wouldn't admit it. The publisher was using the copyright on his own book to stop him from distributing copies himself, which he wanted to do so people could read it.
This is what every artist starts out wanting—wanting to distribute her work so it will get read and appreciated. Very few make a lot of money. That tiny fraction face the danger of being morally corrupted, like J.K. Rowling.
J.K. Rowling, in Canada, got an injunction against people who had bought her book in a bookstore, ordering them not to read it. So in response I call for a boycott of Harry Potter books. But I don't say you shouldn't read them; I leave that to the author and the publisher. I just say you shouldn't buy them.
It's few authors that make enough money that they can be corrupted in this way. Most of them don't get anywhere near that, and continue wanting the same thing they wanted at the outset: they want their work to be appreciated.
He wanted to distribute his own book, and copyright was stopping him. He realized that more than five years of copyright was unlikely to ever do him any good.
If people would rather have copyright last five years, I won't be against it. I propose ten as a first stab at the problem. Let's reduce it to ten years and then take stock for a while, and we could adjust it after that. I don't say I think ten years is the exact right number—I don't know.
What about the dimension of breadth? Which activities should copyright cover? I distinguish three broad categories of works.
First of all, there are the functional works that you use to do a practical job in your life. This includes software, recipes, educational works, reference works, text fonts, and other things you can think of. These works should be free.
If you use the work to do a job in your life, then if you can't change the work to suit you, you don't control your life. Once you have changed the work to suit you, then you've got to be free to publish it—publish your version—because there will be others who will want the changes you've made.
This leads quickly to the conclusion that users have to have the same four freedoms [for all functional works], not just for software. And you'll notice that for recipes, practically speaking, cooks are always sharing and changing recipes just as if the recipes were free. Imagine how people would react if the government tried to stamp out so-called “recipe piracy”.
The term “pirate” is pure propaganda. When people ask me what I think of music piracy, I say “As far as I know, when pirates attack they don't do it by playing instruments badly, they do it with arms. So it's not music “piracy”, because piracy is attacking ships, and sharing is as far as you get from being the moral equivalent of attacking ships”. Attacking ships is bad, sharing with other people is good, so we should firmly denounce that propaganda term “piracy” whenever we hear it.
People might have objected twenty years ago: “If we don't give up our freedom, if we don't let the publishers of these works control us, the works won't get made and that will be a horrible disaster.” Now, looking at the free software community, and all the recipes that circulate, and reference works like Wikipedia—we are even starting to see free textbooks being published—we know that that fear is misguided.
There is no need to despair and give up our freedom thinking that otherwise the works won't get made. There are lots of ways to encourage them to get made if we want more—lots of ways that are consistent with and respect our freedom. In this category, they should all be free.
But what about the second category, of works that say what certain people thought, like memoirs, essays of opinion, scientific papers, and various other things? To publish a modified version of somebody else's statement of what he thought is misrepresenting [that] somebody. That's not particularly a contribution to society.
Therefore it is workable and acceptable to have a somewhat reduced copyright system where all commercial use is covered by copyright, all modification is covered by copyright, but everyone is free to non-commercially redistribute exact copies.
[2015 note: publishing scientific papers under the CC Attribution license (CC-BY) is widely done, in accessible journals and arxiv.org, and it works well, so that is what I now recommend for scholarly publications.]
That freedom is the minimum freedom we must establish for all published works, because the denial of that freedom is what creates the War on Sharing—what creates the vicious propaganda that sharing is theft, that sharing is like being a pirate and attacking ships. Absurdities, but absurdities backed by a lot of money that has corrupted our governments. We need to end the War on Sharing; we need to legalize sharing exact copies of any published work.
In the second category of works, that's all we need; we don't need to make them free. Therefore I think it's OK to have a reduced copyright system which covers commercial use and all modifications. And this will provide a revenue stream to the authors in more or less the same (usually inadequate) way as the present system. You've got to keep in mind [that] the present system, except for superstars, is usually totally inadequate.
What about works of art and entertainment? Here it took me a while to decide what to think about modifications.
You see, on one hand, a work of art can have an artistic integrity and modifying it could destroy that. Of course, copyright doesn't necessarily stop works from being butchered that way. Hollywood does it all the time. On the other hand, modifying the work can be a contribution to art. It makes possible the folk process which leads to things which are beautiful and rich.
Even if we look at named authors only: consider Shakespeare, who borrowed stories from other works only a few decades old, and did them in different ways, and made important works of literature. If today's copyright law had existed then, that would have been forbidden and those plays wouldn't have been written.
But eventually I realized that modifying a work of art can be a contribution to art, but it's not desperately urgent in most cases. If you had to wait ten years for the copyright to expire, you could wait that long. Not like the present-day copyright that makes you wait maybe 75 years, or 95 years. In Mexico you might have to wait almost 200 years in some cases, because copyright in Mexico expires a hundred years after the author dies. This is insane, but ten years, as I've proposed copyright should last, that people can wait.
So I propose the same partly reduced copyright that covers commercial use and modification, but everyone's got to be free to non-commercially redistribute exact copies. After ten years it goes into the public domain, and people can contribute to art by publishing their modified versions.
One other thing: if you're going to take little pieces out of a bunch of works and rearrange them into something totally different, that should just be legal, because the purpose of copyright is to promote art, not to obstruct art. It's stupid to apply copyright to using snippets like that—it's self-defeating. It's a kind of distortion that you'd only get when the government is under the control of the publishers of the existing successful works, and has totally lost sight of its intended purpose.
That's what I propose, and in particular, this means that sharing copies on the Internet must be legal. Sharing is good. Sharing builds the bonds of society. To attack sharing is to attack society.
So any time the government proposes some new means to attack people who share, to stop them from sharing, we have to recognize that this is evil, not just because the means proposed almost invariably offend basic ideas of justice (but that's not a coincidence). The reason is because the purpose is evil. Sharing is good and the government should encourage sharing.
But copyright did after all have a useful purpose. Copyright as a means to carry out that purpose has a problem now, because it doesn't fit in with the technology we use. It interferes with all the vital freedoms for all the readers, listeners, viewers, and whatever, but the goal of promoting the arts is still desirable. So in addition to the partly reduced copyright system, which would continue to be a copyright system, I propose two other methods.
One [works via] taxes—distribute tax money directly to artists. This could be a special tax, perhaps on Internet connectivity, or it could come from general revenue, because it won't be that much money in total, not if it's distributed in an efficient way. To distribute it efficiently to promote the arts means not in linear proportion to popularity. It should be based on popularity, because we don't want bureaucrats to have the discretion to decide which artists to support and which to ignore, but based on popularity does not imply linear proportion.
What I propose is measure the popularity of the various artists, which you could do through polling (samples) in which nobody is required to participate, and then take the cube root. The cube root looks like this: it means basically that [the payment] tapers off after a while.
If superstar A is a thousand times as popular as successful artist B, with this system A would get ten times as much money as B, not a thousand times.
Linearly would give A a thousand times as much as B, which means that if we wanted B to get enough to live on we're going to have to make A tremendously rich. This is wasteful use of the tax money—it shouldn't be done.
But if we make it taper off, then yes, each superstar will get handsomely more than an ordinary successful artist, but the total of all the superstars will be a small fraction of the [total] money. Most of the money will go to support a large number of fairly successful artists, fairly appreciated artists, fairly popular artists. Thus the system will use money a lot more efficiently than the existing system.
The existing system is regressive. It actually gives far, far more per record, for instance, to a superstar than to anybody else. The money is extremely badly used. The result is we'd actually be paying a lot less this way. I hope that's enough to mollify some of these people who have a knee-jerk hostile reaction to taxes—one that I don't share, because I believe in a welfare state.
I have another suggestion which is voluntary payments. Suppose every player had a button you could push to send a dollar to the artist who made the work you're currently playing or the last one you played. This money would be delivered anonymously to those artists. I think a lot of people would push that button fairly often.
For instance, all of us could afford to push that button once every day, and we wouldn't miss that much money. It's not that much money for us, I'm pretty sure. Of course, there are poor people who couldn't afford to push it ever, and it's OK if they don't. We don't need to squeeze money out of poor people to support the artists. There are enough people who are not poor to do the job just fine. I'm sure you're aware that a lot of people really love certain art and are really happy to support the artists.
An idea just came to me. The player could also give you a certificate of having supported so-and-so, and it could even count up how many times you had done it and give you a certificate that says “I sent so much to these artists”. There are various ways we could encourage people who want to do it.
For instance, we could have a PR campaign which is friendly and kind: “Have you sent a dollar to some artists today? Why not? It's only a dollar—you'll never miss it and don't you love what they're doing? Push the button!” It will make people feel good, and they'll think “Yeah, I love what I just watched. I'll send a dollar.”
This is already starting to work to some extent. There's a Canadian singer who used to be called Jane Siberry. She put her music on her website and invited people to download it and pay whatever amount they wished. She reported getting an average of more than a dollar per copy, which is interesting because the major record companies charge just under a dollar per copy. By letting people decide whether and how much to pay, she got more—she got even more per visitor who was actually downloading something. But this might not even count whether there was an effect of bringing more people to come, and [thus] increasing the total number that this average was against.
So it can work, but it's a pain in the neck under present circumstances. You've got to have a credit card to do it, and that means you can't do it anonymously. And you've got to go find where you're going to pay, and the payment systems for small amounts, they're not very efficient, so the artists are only getting half of it. If we set up a good system for this, it would work far, far better.
So these are my two suggestions.
And in mecenatglobal.org, you can find another scheme that combines aspects of the two, which was invented by Francis Muguet and designed to fit in with existing legal systems better to make it easier to enact.
Be careful of proposals to “compensate the rights holders”, because when they say “compensate”, they're trying to presume that if you have appreciated a work, you now have a specific debt to somebody, and that you have to “compensate” that somebody. When they say “rights holders”, it's supposed to make you think it's supporting artists while in fact it's going to the publishers—the same publishers who basically exploit all the artists (except the few that you've all heard of, who are so popular that they have clout).
We don't owe a debt; we have nobody that we have to “compensate”. [But] supporting the arts is still a useful thing to do. That was the motivation for copyright back when copyright fit in with the technology of the day. Today copyright is a bad way to do it, but it's still good to do it other ways that respect our freedom.
Demand that they change the two evil parts of the New Zealand Copyright Act. They shouldn't replace the three strikes punishment, because sharing is good, and they've got to get rid of the censorship for the software to break DRM. Beware of ACTA—they're trying to negotiate a treaty between various countries, for all of these countries to attack their citizens, and we don't know how because they won't tell us.
Click here for an older version of this talk from 2000.
- In 2010, the encryption system for digital video output was
- New Zealand had enacted a system of punishment
without trial for Internet users accused of copying; then, facing
popular protest, the government did not implement it, and announced a
plan to implement a modified unjust punishment system. The point here
was that they should not proceed to implement a replacement —
rather, they should have no such system. However, the words I used
don't say this clearly.
The New Zealand government subsequently implemented the punishment scheme more or less as originally planned.