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<title>Reevaluating Copyright: The Public Must Prevail
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<h2>Reevaluating Copyright: The Public Must Prevail</h2>

<pre>
                Reevaluating Copyright: The Public Must Prevail
                [Published in Oregon Law Review, Spring 1996]

                            Richard Stallman
</pre>

<p>The legal world is aware that digital information technology poses
“problems for copyright,” but has not traced these
problems to their root cause: a fundamental conflict between
publishers of copyrighted works and the users of these works. The
publishers, understanding their own interest, have set forth a
proposal through the Clinton Administration to fix the
“problems” by deciding the conflict in their favor. This
proposal, the Lehman White Paper <a href="#ft2">[2]</a>, was the
principal focus of the “Innovation and the Information
Environment” conference at the University of Oregon (November
1995).</p>

<p>John Perry Barlow <a href="#ft3">[3]</a>, the keynote speaker,
began the conference by telling us how the Greatful Dead recognized
and dealt with this conflict. They decided it would be wrong to
interfere with copying of their performances on tapes, or with
distribution on the Internet, but saw nothing wrong in enforcing
copyright for CD recordings of their music.</p>

<p>Barlow did not analyze the reasons for treating these media
differently, and later Gary Glisson <a href="#ft4">[4]</a> criticized
Barlow's idea that the Internet is inexplicably unique and unlike
anything else in the world. He argued that we should be able to
determine the implications of the Internet for copyright policy by the
same kind of analysis that we apply to other technologies. This paper
attempts to do just that.</p>

<p>Barlow suggested that our intuitions based on physical objects as
property do not transfer to information as property because
information is “abstract.” As Steven
Winter <a href="#ft5">[5]</a> remarked, abstract property has existed
for centuries. Shares in a company, commodity futures, and even paper
money, are forms of property that are more or less abstract.  Barlow
and others who argue that information should be free do not reject
these other kinds of abstract property. Clearly, the crucial
difference between information and acceptable kinds of property is not
abstractness per se. So what is it? I propose a simple and practical
explanation.</p>

<p>United States copyright law considers copyright a bargain between
the public and “authors” (although in practice, usually
publishers take over the authors' part of the bargain). The public
trades certain freedoms in exchange for more published works to
enjoy. Until the White Paper, our government had never proposed that
the public should trade <b>all</b> of its freedom to use published
works. Copyright involves giving up specific freedoms and retaining
others. This means that there are many alternative bargains that the
public could offer to publishers. So which bargain is the best one for
the public? Which freedoms are worth while for the public to trade,
and for what length of time? The answers depend on two things: how
much additional publication the public will get for trading a given
freedom, and how much the public benefits from keeping that
freedom.</p>

<p>This shows why making <a href="#later-1">intellectual property
decisions</a> by analogy to physical object property, or even to older
intellectual property policies, is a mistake. Winter argued
persuasively that it is possible to make such analogies, to stretch
our old concepts and apply them to new decisions <a href=
"#ft6">[6]</a>. Surely this will reach some answer—but not a
good answer. Analogy is not a useful way of deciding what to buy or at
what price.</p>

<p>For example, we do not decide whether to build a highway in New
York City by analogy with a previous decision about a proposed highway
in Iowa. In each highway construction decision, the same factors apply
(cost, amount of traffic, taking of land or houses); if we made
highway decisions by analogy to previous highway decisions, we would
either build every proposed highway or none of them. Instead we judge
each proposed highway based on the pros and cons, whose magnitudes
vary from case to case. In copyright issues, too, we must weigh the
cost and benefits for today's situation and today's media, not as they
have applied to other media in the past.</p>

<p>This also shows why Laurence Tribe's principle, that rights
concerning speech should not depend on the choice of
medium<a href="#ft7">[7]</a>, is not applicable to copyright
decisions. Copyright is a bargain with the public, not a natural
right. Copyright policy issues are about which bargains benefit the
public, not about what rights publishers or readers are entitled
to.</p>

<p>The copyright system developed along with the printing press.  In
the age of the printing press, it was unfeasible for an ordinary
reader to copy a book. Copying a book required a printing press, and
ordinary readers did not have one. What's more, copying in this way
was absurdly expensive unless many copies were made—which means,
in effect, that only a publisher could copy a book economically.</p>

<p>So when the public traded to publishers the freedom to copy books,
they were selling something which they <b>could not use</b>.  Trading
something you cannot use for something useful and helpful is always
good deal. Therefore, copyright was uncontroversial in the age of the
printing press, precisely because it did not restrict anything the
reading public might commonly do.</p>

<p>But the age of the printing press is gradually ending. The xerox
machine and the audio and video tape began the change; digital
information technology brings it to fruition. These advances make it
possible for ordinary people, not just publishers with specialized
equipment, to copy. And they do!</p>

<p>Once copying is a useful and practical activity for ordinary
people, they are no longer so willing to give up the freedom to do
it. They want to keep this freedom and exercise it instead of trading
it away. The copyright bargain that we have is no longer a good deal
for the public, and it is time to revise it—time for the law to
recognize the public benefit that comes from making and sharing
copies.</p>

<p>With this analysis, we see why rejection of the old copyright
bargain is not based on supposing that the Internet is ineffably
unique. The Internet is relevant because it facilitates copying and
sharing of writings by ordinary readers. The easier it is to copy and
share, the more useful it becomes, and the more copyright as it stands
now becomes a bad deal.</p>

<p>This analysis also explains why it makes sense for the Grateful
Dead to insist on copyright for CD manufacturing but not for
individual copying. CD production works like the printing press; it is
not feasible today for ordinary people, even computer owners, to copy
a CD into another CD. Thus, copyright for publishing CDs of music
remains painless for music listeners, just as all copyright was
painless in the age of the printing press. To restrict copying the
same music onto a digital audio tape does hurt the listeners, however,
and they are entitled to reject this restriction. (1999 note: the
practical situation for CDs has changed, in that many ordinary
computer users can now copy CDs. This means that we should now
consider CDs more like tapes.  2007 clarification: notwithstanding the
improvement in CD technology, it still makes sense to apply copyright
to commercial distribution while letting individuals copy freely.)</p>

<p>We can also see why the abstractness
of <a href="#later-1">intellectual property</a> is not the crucial
factor.  Other forms of abstract property represent shares of
something.  Copying any kind of share is intrinsically a zero-sum
activity; the person who copies benefits only by taking wealth away
from everyone else. Copying a dollar bill in a color copier is
effectively equivalent to shaving a small fraction off of every other
dollar and adding these fractions together to make one
dollar. Naturally, we consider this wrong.</p>

<p>By contrast, copying useful, enlightening or entertaining
information for a friend makes the world happier and better off; it
benefits the friend, and inherently hurts no one. It is a constructive
activity that strengthens social bonds.</p>

<p>Some readers may question this statement because they know
publishers claim that illegal copying causes them “loss.”
This claim is mostly inaccurate and partly misleading. More
importantly, it is begging the question.</p>

<ul>
  <li>The claim is mostly inaccurate because it presupposes that the
  friend would otherwise have bought a copy from the publisher. That
  is occasionally true, but more often false; and when it is false,
  the claimed loss does not occur.</li>

  <li>The claim is partly misleading because the word
  “loss” suggests events of a very different
  nature—events in which something they have is taken away from
  them. For example, if the bookstore's stock of books were burned, or
  if the money in the register got torn up, that would really be a
  “loss.” We generally agree it is wrong to do these
  things to other people.

    <p>But when your friend avoids the need to buy a copy of a book,
    the bookstore and the publisher do not lose anything they had. A
    more fitting description would be that the bookstore and publisher
    get less income than they might have got. The same consequence can
    result if your friend decides to play bridge instead of reading a
    book. In a free market system, no business is entitled to cry
    “foul” just because a potential customer chooses not
    to deal with them.</p>
    </li>

  <li>The claim is begging the question because the idea of
  “loss” is based on the assumption that the publisher
  “should have” got paid. That is based on the assumption
  that copyright exists and prohibits individual copying. But that is
  just the issue at hand: what should copyright cover? If the public
  decides it can share copies, then the publisher is not entitled to
  expect to be paid for each copy, and so cannot claim there is a
  “loss” when it is not.

    <p>In other words, the “loss” comes from the copyright
    system; it is not an inherent part of copying. Copying in itself
    hurts no one.</p>
  </li>
</ul>

<p>The most widely opposed provision of the White Paper is the system
of collective responsibility, whereby a computer owner is required to
monitor and control the activities of all users, on pain of being
punished for actions in which he was not a participant but merely
failed to actively prevent. Tim Sloan <a href="#ft8">[8]</a> pointed
out that this gives copyright owners a privileged status not accorded
to anyone else who might claim to be damaged by a computer user; for
example, no one proposes to punish the computer owner if he fails
actively to prevent a user from defaming someone. It is natural for a
government to turn to collective responsibility for enforcing a law
that many citizens do not believe in obeying. The more digital
technology helps citizens share information, the more the government
will need draconian methods to enforce copyright against ordinary
citizens.</p>

<p>When the United States Constitution was drafted, the idea that
authors were entitled to a copyright monopoly was proposed—and
rejected <a href="#ft9">[9]</a>. Instead, the founders of our country
adopted a different idea of copyright, one which places the public
first <a href="#ft10">[10]</a>. Copyright in the United States is
supposed to exist for the sake of users; benefits for publishers and
even for authors are not given for the sake of those parties, but only
as an inducement to change their behavior. As the Supreme Court said
in Fox Film Corp. v. Doyal: “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.” <a href="#ft11">[11]</a></p>

<p>Under the Constitution's view of copyright, if the public prefers
to be able to make copies in certain cases even if that means somewhat
fewer works are published, the public's choice is decisive. There is
no possible justification for prohibiting the public from copying what
it wants to copy.</p>

<p>Ever since the constitutional decision was made, publishers have
tried to reverse it by misinforming the public. They do this by
repeating arguments which presuppose that copyright is a natural right
of authors (not mentioning that authors almost always cede it to
publishers). People who hear these arguments, unless they have a firm
awareness that this presupposition is contrary to the basic premises
of our legal system, take for granted that it is the basis of that
system.</p>

<p>This error is so ingrained today that people who oppose new
copyright powers feel the need to do so by arguing that even authors
and publishers may be hurt by them. Thus, James
Boyle <a href="#ft12">[12]</a> explains how a
strict <a href="#later-2">intellectual property system</a> can
interfere with writing new works. Jessica
Litman <a href="#ft13">[13]</a> cites the copyright shelters which
historically allowed many new media to become popular. Pamela
Samuelson <a href="#ft14">[14]</a> warns that the White Paper may
block the development of “third-wave” information
industries by locking the world into the “second-wave”
economic model that fit the age of the printing press.</p>

<p>These arguments can be very effective on those issues where they
are available, especially with a Congress and Administration dominated
by the idea that “What's good for General Media is good for the
USA.” But they fail to expose the fundamental falsehood on which
this domination is based; as a result, they are ineffective in the
long term. When these arguments win one battle, they do so without
building a general understanding that helps win the next battle. If we
turn to these arguments too much and too often, the danger is that we
may allow the publishers to replace the Constitution uncontested.</p>

<p>For example, the recently published position statement of the
Digital Future Coalition, an umbrella organization, lists many reasons
to oppose the White Paper, for the sake of authors, libraries,
education, poor Americans, technological progress, economic
flexibility, and privacy concerns—all valid arguments, but
concerned with side issues <a href="#ft15">[15]</a>.  Conspicuously
absent from the list is the most important reason of all: that many
Americans (perhaps most) want to continue making copies. The DFC fails
to criticize the core goal of the White Paper, which is to give more
power to publishers, and its central decision, to reject the
Constitution and place the publishers above the users. This silence
may be taken for consent.</p>

<p>Resisting the pressure for additional power for publishers depends
on widespread awareness that the reading and listening public are
paramount; that copyright exists for users and not vice versa. If the
public is unwilling to accept certain copyright powers, that is ipso
facto justification for not offering them. Only by reminding the
public and the legislature of the purpose of copyright and the
opportunity for the open flow of information can we ensure that the
public prevails.</p>

<h3>ENDNOTES</h3>

<p id="ft2">[2] Informational Infrastructure Task
Force, Intellectual Property and the National Information
Infrastructure: The Report of the Working Group on Intellectual
Property Rights (1995).</p>

<p id="ft3">[3] John Perry Barlow, Remarks at the
Innovation and the Information Environment Conference (Nov.
1995). Mr. Barlow is one of the founders of the Electronic Frontier
Foundation, an organization which promotes freedom of expression in
digital media, and is also a former lyricist for the Grateful
Dead.</p>

<p id="ft4">[4] Gary Glisson, Remarks at the
Innovation and the Information Environment Conference (Nov.  1995);
see also Gary Glisson, A Practitioner's Defense of the NII White
Paper, 75 Or. L. Rev. (1996) (supporting the White Paper).
Mr. Glisson is a partner and chair of the Intellectual Property Group
at Lane Powell Spears Lubersky in Portland, Oregon.</p>

<p id="ft5">[5] Steven Winter, Remarks at the
Innovation and the Information Environment Conference (Nov.
1995). Mr. Winter is a professor at the University of Miami School of
Law.</p>

<p id="ft6">[6] Winter, supra note 4.</p>

<p id="ft7">[7] See Laurence H. Tribe, The
Constitution in Cyberspace: Law and Liberty Beyond the Electronic
Frontier, Humanist, Sept.-Oct. 1991, at 15.</p>

<p id="ft8">[8] Tim Sloan, Remarks at the Innovation
and the Information Environment Conference (Nov. 1995). Mr. Sloan is
a member of the National Telecommunication and Information
Administration.</p>

<p id="ft9">[9] See Jane C. Ginsburg, A Tale of Two
Copyrights: Liberary Property in Revolutionary France and America, in,
Of Authors and Origins: Essays on Copyright Law 131, 137-38 (Brad
Sherman & Alain Strowel, eds., 1994) (stating that the
Constitution's framers either meant to “subordinate[] the
author's interests to the public benefit,” or to “treat
the private and public interests…even-handedly.”).</p>

<p id="ft10">[10] U.S. Const., art. I, p. 8, cl. 8
(“Congress shall have Power…to promote the Progress of
Science and useful Arts, by securing for limited Times to Authors and
Inventors the exclusive Right to their respective Writings and
Discoveries.”).</p>

<p id="ft11">[11] 286 U.S. 123, 127 (1932).</p>

<p id="ft12">[12] James Boyle, Remarks at the
Innovation and the Information Environment Conference (Nov.
1995). Mr. Boyle is a Professor of Law at American University in
Washington, D.C.</p>

<p id="ft13">[13] Jessica Litman, Remarks at the
Innovation and the Information Environment Conference (Nov.
1995). Ms. Litman is a Professor at Wayne State University Law School
in Detroit, Michigan.</p>

<p id="ft14">[14] Pamela Samuelson, The Copyright
Grab, Wired, Jan. 1996. Ms. Samuelson is a Professor at Cornell Law
School.</p>

<p id="ft15">[15] Digital Future Coalition,
Broad-Based Coalition Expresses Concern Over Intellectual Property
Proposals, Nov. 15, 1995<!-- (available at URL:
<a href="http://home.worldweb.net/dfc/press.html">http://home.worldweb.net/dfc/press.html</a>)-->.</p>

<h3>LATER NOTES</h3>

<p id="later-1">[1] This article was part of the
path that led me to recognize the <a href="/philosophy/not-ipr.html">
bias and confusion in the term “intellectual
property”</a>. Today I believe that term should never be used
under any circumstances.</p>

<p id="later-2">[2] Here I fell into the
fashionable error of writing “intellectual property” when
what I meant was just “copyright”. This is like writing
“Europe” when you mean “France”—it
causes confusion that is easy to avoid.</p>

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<p>Copyright © 1996, 1999 Richard M. Stallman
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This Stallman</p>

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