Reevaluating Copyright: The Public Must Prevail

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,[2] was the principal focus of the Innovation and the Information Environment conference at the University of Oregon (November 1995).

John Perry Barlow,[3] 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.

Barlow did not analyze the reasons for treating these media differently, and later Gary Glisson [4] 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.

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 [5] 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.

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 all 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.

This shows why making intellectual property decisions 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.[6] 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.

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.

This also shows why Laurence Tribe's principle, that rights concerning speech should not depend on the choice of medium,[7] 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.

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.

So when the public traded to publishers the freedom to copy books, they were selling something which they could not use. 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.

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!

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.

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.

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.)

We can also see why the abstractness of intellectual property 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.

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.

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.

  • 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.
  • 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.

    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.

  • 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.

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

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 [8] 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.

When the United States Constitution was drafted, the idea that authors were entitled to a copyright monopoly was proposed—and rejected.[9] Instead, the founders of our country adopted a different idea of copyright, one which places the public first.[10] 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.”[11]

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.

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.

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 [12] explains how a strict intellectual property system can interfere with writing new works. Jessica Litman [13] cites the copyright shelters which historically allowed many new media to become popular. Pamela Samuelson [14] 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.

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.

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.[15] 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.

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.

Later Notes

  • Intellectual property:  This article was part of the path that led me to recognize the bias and confusion in the term “intellectual property”. Today I believe that term should never be used under any circumstances.
  • Intellectual property system:  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.

  1. Published in Oregon Law Review, Spring 1996.
  2. Informational Infrastructure Task Force, Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights (1995).
  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.
  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.
  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.
  6. Winter, supra note 5.
  7. See Laurence H. Tribe, “The Constitution in Cyberspace: Law and Liberty Beyond the Electronic Frontier,” Humanist, Sept.-Oct. 1991, at 15.
  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.
  9. See Jane C. Ginsburg, “A Tale of Two Copyrights: Literary 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.”
  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.”)
  11. 286 U.S. 123, 127 (1932).
  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.
  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.
  14. Pamela Samuelson, “The Copyright Grab,” Wired, Jan. 1996. Ms. Samuelson is a Professor at Cornell Law School.
  15. Digital Future Coalition, “Broad-Based Coalition Expresses Concern Over Intellectual Property Proposals,” Nov. 15, 1995.