Misinterpreting Copyright—A Series of Errors
Something strange and dangerous is happening in copyright law. Under the US Constitution, copyright exists to benefit users—those who read books, listen to music, watch movies, or run software—not for the sake of publishers or authors. Yet even as people tend increasingly to reject and disobey the copyright restrictions imposed on them “for their own benefit,” the US government is adding more restrictions, and trying to frighten the public into obedience with harsh new penalties.
How did copyright policies come to be diametrically opposed to their stated purpose? And how can we bring them back into alignment with that purpose? To understand, we should start by looking at the root of United States copyright law: the US Constitution.
Copyright in the US Constitution
When the US Constitution was drafted, the idea that authors were entitled to a copyright monopoly was proposed—and rejected. The founders of our country adopted a different premise, that copyright is not a natural right of authors, but an artificial concession made to them for the sake of progress. The Constitution gives permission for a copyright system with this paragraph (Article I, Section 8):
[Congress shall have the power] to promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
The Supreme Court has repeatedly affirmed that promoting progress means benefit for the users of copyrighted works. For example, in Fox Film v. Doyal, the court said,
The sole interest of the United States and the primary object in conferring the [copyright] monopoly lie in the general benefits derived by the public from the labors of authors.
This fundamental decision explains why copyright is not required by the Constitution, only permitted as an option—and why it is supposed to last for “limited times.” If copyright were a natural right, something that authors have because they deserve it, nothing could justify terminating this right after a certain period of time, any more than everyone's house should become public property after a certain lapse of time from its construction.
The “copyright bargain”
The copyright system works by providing privileges and thus benefits to publishers and authors; but it does not do this for their sake. Rather, it does this to modify their behavior: to provide an incentive for authors to write more and publish more. In effect, the government spends the public's natural rights, on the public's behalf, as part of a deal to bring the public more published works. Legal scholars call this concept the “copyright bargain.” It is like a government purchase of a highway or an airplane using taxpayers' money, except that the government spends our freedom instead of our money.
But is the bargain as it exists actually a good deal for the public? Many alternative bargains are possible; which one is best? Every issue of copyright policy is part of this question. If we misunderstand the nature of the question, we will tend to decide the issues badly.
The Constitution authorizes granting copyright powers to authors. In practice, authors typically cede them to publishers; it is usually the publishers, not the authors, who exercise these powers and get most of the benefits, though authors may get a small portion. Thus it is usually the publishers that lobby to increase copyright powers. To better reflect the reality of copyright rather than the myth, this article refers to publishers rather than authors as the holders of copyright powers. It also refers to the users of copyrighted works as “readers,” even though using them does not always mean reading, because “the users” is remote and abstract.
The first error: “striking a balance”
The copyright bargain places the public first: benefit for the reading public is an end in itself; benefits (if any) for publishers are just a means toward that end. Readers' interests and publishers' interests are thus qualitatively unequal in priority. The first step in misinterpreting the purpose of copyright is the elevation of the publishers to the same level of importance as the readers.
It is often said that US copyright law is meant to “strike a balance” between the interests of publishers and readers. Those who cite this interpretation present it as a restatement of the basic position stated in the Constitution; in other words, it is supposed to be equivalent to the copyright bargain.
But the two interpretations are far from equivalent; they are different conceptually, and different in their implications. The balance concept assumes that the readers' and publishers' interests differ in importance only quantitatively, in how much weight we should give them, and in what actions they apply to. The term “stakeholders” is often used to frame the issue in this way; it assumes that all kinds of interest in a policy decision are equally important. This view rejects the qualitative distinction between the readers' and publishers' interests which is at the root of the government's participation in the copyright bargain.
The consequences of this alteration are far-reaching, because the great protection for the public in the copyright bargain—the idea that copyright privileges can be justified only in the name of the readers, never in the name of the publishers—is discarded by the “balance” interpretation. Since the interest of the publishers is regarded as an end in itself, it can justify copyright privileges; in other words, the “balance” concept says that privileges can be justified in the name of someone other than the public.
As a practical matter, the consequence of the “balance” concept is to reverse the burden of justification for changes in copyright law. The copyright bargain places the burden on the publishers to convince the readers to cede certain freedoms. The concept of balance reverses this burden, practically speaking, because there is generally no doubt that publishers will benefit from additional privilege. Unless harm to the readers can be proved, sufficient to “outweigh” this benefit, we are led to conclude that the publishers are entitled to almost any privilege they request.
Since the idea of “striking a balance” between publishers and readers denies the readers the primacy they are entitled to, we must reject it.
Balancing against what?
When the government buys something for the public, it acts on behalf of the public; its responsibility is to obtain the best possible deal—best for the public, not for the other party in the agreement.
For example, when signing contracts with construction companies to build highways, the government aims to spend as little as possible of the public's money. Government agencies use competitive bidding to push the price down.
As a practical matter, the price cannot be zero, because contractors will not bid that low. Although not entitled to special consideration, they have the usual rights of citizens in a free society, including the right to refuse disadvantageous contracts; even the lowest bid will be high enough for some contractor to make money. So there is indeed a balance, of a kind. But it is not a deliberate balancing of two interests each with claim to special consideration. It is a balance between a public goal and market forces. The government tries to obtain for the taxpaying motorists the best deal they can get in the context of a free society and a free market.
In the copyright bargain, the government spends our freedom instead of our money. Freedom is more precious than money, so government's responsibility to spend our freedom wisely and frugally is even greater than its responsibility to spend our money thus. Governments must never put the publishers' interests on a par with the public's freedom.
Not “balance” but “trade-off”
The idea of balancing the readers' interests against the publishers' is the wrong way to judge copyright policy, but there are indeed two interests to be weighed: two interests of the readers. Readers have an interest in their own freedom in using published works; depending on circumstances, they may also have an interest in encouraging publication through some kind of incentive system.
The word “balance,” in discussions of copyright, has come to stand as shorthand for the idea of “striking a balance” between the readers and the publishers. Therefore, to use the word “balance” in regard to the readers' two interests would be confusing. We need another term.
In general, when one party has two goals that partly conflict, and cannot completely achieve both of them, we call this a “trade-off.” Therefore, rather than speaking of “striking the right balance” between parties, we should speak of “finding the right trade-off between spending our freedom and keeping it.”
(Here is another critique of "balance".)
The second error: maximizing one output
The second mistake in copyright policy consists of adopting the goal of maximizing—not just increasing—the number of published works. The erroneous concept of “striking a balance” elevated the publishers to parity with the readers; this second error places them far above the readers.
When we purchase something, we do not generally buy the whole quantity in stock or the most expensive model. Instead we conserve funds for other purchases, by buying only what we need of any particular good, and choosing a model of sufficient rather than highest quality. The principle of diminishing returns suggests that spending all our money on one particular good is likely to be an inefficient allocation of resources; we generally choose to keep some money for another use.
Diminishing returns applies to copyright just as to any other purchase. The first freedoms we should trade away are those we miss the least, and whose sacrifice gives the largest encouragement to publication. As we trade additional freedoms that cut closer to home, we find that each trade is a bigger sacrifice than the last, while bringing a smaller increment in literary activity. Well before the increment becomes zero, we may well say it is not worth its incremental price; we would then settle on a bargain whose overall result is to increase the amount of publication, but not to the utmost possible extent.
Accepting the goal of maximizing publication rejects all these wiser, more advantageous bargains in advance—it dictates that the public must cede nearly all of its freedom to use published works, for just a little more publication.
The rhetoric of maximization
In practice, the goal of maximizing publication regardless of the cost to freedom is supported by widespread rhetoric which asserts that public copying is illegitimate, unfair, and intrinsically wrong. For instance, the publishers call people who copy “pirates,” a smear term designed to equate sharing information with your neighbor with attacking a ship. (This smear term was formerly used by authors to describe publishers who found lawful ways to publish unauthorized editions; its modern use by the publishers is almost the reverse.) This rhetoric directly rejects the constitutional basis for copyright, but presents itself as representing the unquestioned tradition of the American legal system.
The “pirate” rhetoric is typically accepted because it so pervades the media that few people realize how radical it is. It is effective because if copying by the public is fundamentally illegitimate, we can never object to the publishers' demand that we surrender our freedom to do so. In other words, when the public is challenged to show why publishers should not receive some additional power, the most important reason of all—“We want to copy”—is disqualified in advance.
This leaves no way to argue against increasing copyright power except using side issues. Hence, opposition to stronger copyright powers today almost exclusively cites side issues, and never dares cite the freedom to distribute copies as a legitimate public value.
As a practical matter, the goal of maximization enables publishers to argue that “A certain practice is reducing our sales—or we think it might—so we presume it diminishes publication by some unknown amount, and therefore it should be prohibited.” We are led to the outrageous conclusion that the public good is measured by publishers' sales: What's good for General Media is good for the USA.
The third error: maximizing publishers' power
Once the publishers have obtained assent to the policy goal of maximizing publication output at any cost, their next step is to infer that this requires giving them the maximum possible powers—making copyright cover every imaginable use of a work, or applying some other legal tool such as “shrink wrap” licenses to equivalent effect. This goal, which entails the abolition of “fair use” and the “right of first sale,” is being pressed at every available level of government, from states of the US to international bodies.
This step is erroneous because strict copyright rules obstruct the creation of useful new works. For instance, Shakespeare borrowed the plots of some of his plays from works others had published a few decades before, so if today's copyright law had been in effect, his plays would have been illegal.
Even if we wanted the highest possible rate of publication, regardless of cost to the public, maximizing publishers' power is the wrong way to get it. As a means of promoting progress, it is self-defeating.
The results of the three errors
The current trend in copyright legislation is to hand publishers broader powers for longer periods of time. The conceptual basis of copyright, as it emerges distorted from the series of errors, rarely offers a basis for saying no. Legislators give lip service to the idea that copyright serves the public, while in fact giving publishers whatever they ask for.
For example, here is what Senator Hatch said when introducing S. 483, a 1995 bill to increase the term of copyright by 20 years:
I believe we are now at such a point with respect to the question of whether the current term of copyright adequately protects the interests of authors and the related question of whether the term of protection continues to provide a sufficient incentive for the creation of new works of authorship.
This bill extended the copyright on already published works written since the 1920s. This change was a giveaway to publishers with no possible benefit to the public, since there is no way to retroactively increase now the number of books published back then. Yet it cost the public a freedom that is meaningful today—the freedom to redistribute books from that era.
The bill also extended the copyrights of works yet to be written. For works made for hire, copyright would last 95 years instead of the present 75 years. Theoretically this would increase the incentive to write new works; but any publisher that claims to need this extra incentive should be required substantiate the claim with projected balance sheets for 75 years in the future.
Needless to say, Congress did not question the publishers' arguments: a law extending copyright was enacted in 1998. It was officially called the Sonny Bono Copyright Term Extension Act, named after one of its sponsors who died earlier that year. We usually call it the Mickey Mouse Copyright Act, since we presume its real motive was to prevent the copyright on the appearance of Mickey Mouse from expiring. Bono's widow, who served the rest of his term, made this statement:
Actually, Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. I invite all of you to work with me to strengthen our copyright laws in all of the ways available to us. As you know, there is also Jack Valenti's proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress.
The Supreme Court later heard a case that sought to overturn the law on the grounds that the retroactive extension fails to serve the Constitution's goal of promoting progress. The court responded by abdicating its responsibility to judge the question; on copyright, the Constitution requires only lip service.
Another law, passed in 1997, made it a felony to make sufficiently many copies of any published work, even if you give them away to friends just to be nice. Previously this was not a crime in the US at all.
An even worse law, the Digital Millennium Copyright Act (DMCA), was designed to bring back copy protection (which computer users detest) by making it a crime to break copy protection, or even publish information about how to break it. This law ought to be called the “Domination by Media Corporations Act” because it effectively offers publishers the chance to write their own copyright law. It says they can impose any restrictions whatsoever on the use of a work, and these restrictions take the force of law provided the work contains some sort of encryption or license manager to enforce them.
One of the arguments offered for this bill was that it would implement a recent treaty to increase copyright powers. The treaty was promulgated by the World Intellectual Property Organization, an organization dominated by copyright- and patent-holding interests, with the aid of pressure from the Clinton administration; since the treaty only increases copyright power, whether it serves the public interest in any country is doubtful. In any case, the bill went far beyond what the treaty required.
Libraries were a key source of opposition to this bill, especially to the aspects that block the forms of copying that are considered fair use. How did the publishers respond? Former representative Pat Schroeder, now a lobbyist for the Association of American Publishers, said that the publishers “could not live with what [the libraries were] asking for.” Since the libraries were asking only to preserve part of the status quo, one might respond by wondering how the publishers had survived until the present day.
Congressman Barney Frank, in a meeting with me and others who opposed this bill, showed how far the US Constitution's view of copyright has been disregarded. He said that new powers, backed by criminal penalties, were needed urgently because the “movie industry is worried,” as well as the “music industry” and other “industries.” I asked him, “But is this in the public interest?” His response was telling: “Why are you talking about the public interest? These creative people don't have to give up their rights for the public interest!” The “industry” has been identified with the “creative people” it hires, copyright has been treated as its entitlement, and the Constitution has been turned upside down.
The DMCA was enacted in 1998. As enacted, it says that fair use remains nominally legitimate, but allows publishers to prohibit all software or hardware that you could practice it with. Effectively, fair use is prohibited.
Based on this law, the movie industry has imposed censorship on free software for reading and playing DVDs, and even on the information about how to read them. In April 2001, Professor Edward Felten of Princeton University was intimidated by lawsuit threats from the Recording Industry Association of America (RIAA) into withdrawing a scientific paper stating what he had learned about a proposed encryption system for restricting access to recorded music.
We are also beginning to see e-books that take away many of readers' traditional freedoms—for instance, the freedom to lend a book to your friend, to sell it to a used book store, to borrow it from a library, to buy it without giving your name to a corporate data bank, even the freedom to read it twice. Encrypted e-books generally restrict all these activities—you can read them only with special secret software designed to restrict you.
I will never buy one of these encrypted, restricted e-books, and I hope you will reject them too. If an e-book doesn't give you the same freedoms as a traditional paper book, don't accept it!
Anyone independently releasing software that can read restricted e-books risks prosecution. A Russian programmer, Dmitry Sklyarov, was arrested in 2001 while visiting the US to speak at a conference, because he had written such a program in Russia, where it was lawful to do so. Now Russia is preparing a law to prohibit it too, and the European Union recently adopted one.
Mass-market e-books have been a commercial failure so far, but not because readers chose to defend their freedom; they were unattractive for other reasons, such as that computer display screens are not easy surfaces to read from. We can't rely on this happy accident to protect us in the long term; the next attempt to promote e-books will use “electronic paper”—book-like objects into which an encrypted, restricted e-book can be downloaded. If this paper-like surface proves more appealing than today's display screens, we will have to defend our freedom in order to keep it. Meanwhile, e-books are making inroads in niches: NYU and other dental schools require students to buy their textbooks in the form of restricted e-books.
The media companies are not satisfied yet. In 2001, Disney-funded Senator Hollings proposed a bill called the “Security Systems Standards and Certification Act” (SSSCA), which would require all computers (and other digital recording and playback devices) to have government-mandated copy-restriction systems. That is their ultimate goal, but the first item on their agenda is to prohibit any equipment that can tune digital HDTV unless it is designed to be impossible for the public to “tamper with” (i.e., modify for their own purposes). Since free software is software that users can modify, we face here for the first time a proposed law that explicitly prohibits free software for a certain job. Prohibition of other jobs will surely follow. If the FCC adopts this rule, existing free software such as GNU Radio would be censored.
To block these bills and rules requires political action.
Finding the right bargain
What is the proper way to decide copyright policy? If copyright is a bargain made on behalf of the public, it should serve the public interest above all. The government's duty when selling the public's freedom is to sell only what it must, and sell it as dearly as possible. At the very least, we should pare back the extent of copyright as much as possible while maintaining a comparable level of publication.
Since we cannot find this minimum price in freedom through competitive bidding, as we do for construction projects, how can we find it?
One possible method is to reduce copyright privileges in stages, and observe the results. By seeing if and when measurable diminutions in publication occur, we will learn how much copyright power is really necessary to achieve the public's purposes. We must judge this by actual observation, not by what publishers say will happen, because they have every incentive to make exaggerated predictions of doom if their powers are reduced in any way.
Copyright policy includes several independent dimensions, which can be adjusted separately. After we find the necessary minimum for one policy dimension, it may still be possible to reduce other dimensions of copyright while maintaining the desired publication level.
One important dimension of copyright is its duration, which is now typically on the order of a century. Reducing the monopoly on copying to ten years, starting from the date when a work is published, would be a good first step. Another aspect of copyright, which covers the making of derivative works, could continue for a longer period.
Why count from the date of publication? Because copyright on unpublished works does not directly limit readers' freedom; whether we are free to copy a work is moot when we do not have copies. So giving authors a longer time to get a work published does no harm. Authors (who generally do own the copyright prior to publication) will rarely choose to delay publication just to push back the end of the copyright term.
Why ten years? Because that is a safe proposal; we can be confident on practical grounds that this reduction would have little impact on the overall viability of publishing today. In most media and genres, successful works are very profitable in just a few years, and even successful works are usually out of print well before ten. Even for reference works, whose useful life may be many decades, ten-year copyright should suffice: updated editions are issued regularly, and many readers will buy the copyrighted current edition rather than copy a ten-year-old public domain version.
Ten years may still be longer than necessary; once things settle down, we could try a further reduction to tune the system. At a panel on copyright at a literary convention, where I proposed the ten-year term, a noted fantasy author sitting beside me objected vehemently, saying that anything beyond five years was intolerable.
But we don't have to apply the same time span to all kinds of works. Maintaining the utmost uniformity of copyright policy is not crucial to the public interest, and copyright law already has many exceptions for specific uses and media. It would be foolish to pay for every highway project at the rates necessary for the most difficult projects in the most expensive regions of the country; it is equally foolish to “pay” for all kinds of art with the greatest price in freedom that we find necessary for any one kind.
So perhaps novels, dictionaries, computer programs, songs, symphonies, and movies should have different durations of copyright, so that we can reduce the duration for each kind of work to what is necessary for many such works to be published. Perhaps movies over one hour long could have a twenty-year copyright, because of the expense of producing them. In my own field, computer programming, three years should suffice, because product cycles are even shorter than that.
Another dimension of copyright policy is the extent of fair use: some ways of reproducing all or part of a published work that are legally permitted even though it is copyrighted. The natural first step in reducing this dimension of copyright power is to permit occasional private small-quantity noncommercial copying and distribution among individuals. This would eliminate the intrusion of the copyright police into people's private lives, but would probably have little effect on the sales of published works. (It may be necessary to take other legal steps to ensure that shrink-wrap licenses cannot be used to substitute for copyright in restricting such copying.) The experience of Napster shows that we should also permit noncommercial verbatim redistribution to the general public—when so many of the public want to copy and share, and find it so useful, only draconian measures will stop them, and the public deserves to get what it wants.
For novels, and in general for works that are used for entertainment, noncommercial verbatim redistribution may be sufficient freedom for the readers. Computer programs, being used for functional purposes (to get jobs done), call for additional freedoms beyond that, including the freedom to publish an improved version. See “Free Software Definition,” in this book, for an explanation of the freedoms that software users should have. But it may be an acceptable compromise for these freedoms to be universally available only after a delay of two or three years from the program's publication.
Changes like these could bring copyright into line with the public's wish to use digital technology to copy. Publishers will no doubt find these proposals “unbalanced”; they may threaten to take their marbles and go home, but they won't really do it, because the game will remain profitable and it will be the only game in town.
As we consider reductions in copyright power, we must make sure media companies do not simply replace it with end-user license agreements. It would be necessary to prohibit the use of contracts to apply restrictions on copying that go beyond those of copyright. Such limitations on what mass-market nonnegotiated contracts can require are a standard part of the US legal system.
A personal note
I am a software designer, not a legal scholar. I've become concerned with copyright issues because there's no avoiding them in the world of computer networks, such as the Internet. As a user of computers and networks for 30 years, I value the freedoms that we have lost, and the ones we may lose next. As an author, I can reject the romantic mystique of the author as semidivine creator, often cited by publishers to justify increased copyright powers for authors—powers which these authors will then sign away to publishers.
Most of this article consists of facts and reasoning that you can check, and proposals on which you can form your own opinions. But I ask you to accept one thing on my word alone: that authors like me don't deserve special power over you. If you wish to reward me further for the software or books I have written, I would gratefully accept a check—but please don't surrender your freedom in my name.
- Since renamed to the unpronounceable CBDTPA, for which a good mnemonic is “Consume, But Don't Try Programming Anything,” but it really stands for the “Consumer Broadband and Digital Television Promotion Act.”
- If you would like to help, I recommend the Web sites DefectiveByDesign.org, publicknowledge.org and www.eff.org.