Mimsy Were the Borogoves

Editorials: Where I rant to the wall about politics. And sometimes the wall rants back.

Copyright: A Broken Contract with the Public

Jerry Stratton, December 27, 2002

Most people know that you can’t copyright rules, including game rules and recipes. There is a common misperception that this is because there’s a special exemption for recipes and rules. In fact, it’s just the opposite: recipes are the norm. The special exemption is for those relatively few works that can be covered by copyright law. The Supreme Court said exactly that in “The Betamax Case”. Sony Corp. (who made Betamax recorders) prevailed over Universal Studios and Walt Disney, when the Supreme Court ruled that home viewers could “time shift” television programs without the consent of copyright owners:

Even unauthorized uses of a copyrighted work are not necessarily infringing. An unlicensed use of the copyright is not an infringement unless it conflicts with one of the specific exclusive rights conferred by the copyright statute.

Copyright law and “Intellectual Property” are not about ownership or property. You own what you make. Other people own what they make. If someone walks into your house and takes what you have made without your permission, they have stolen what you have made. If you give what you have made to them, or if you sell it to them, it is no longer yours. They have not stolen it, they’ve bought it.

If they then take what is now theirs apart, they still have not stolen it from you. And if they put it back together they haven’t stolen from you. And if they decide to make another one of what they now own, they still haven’t stolen from you.

If what you were making were a barrel or a chessboard or a cheese sandwich, this would be obvious. If you sell them a barrel and they use it to learn how to make barrels, well, that’s how barrelmakers are born. If you don’t want more barrelmakers in your community, you don’t sell barrels to people who might take them apart. You would probably laugh at anyone who told you that you couldn’t duplicate the cheese sandwich you purchased at the deli yesterday. Of course you can. Such copying is the lifeblood of a free market economy. But if it were possible to copyright cheese sandwiches, then you could not. Copyright is not property; it is the power to restrict what others do with their property. That’s a great thing, and a profound innovation in how to reward artists in our culture. It means that artists can make their works public and still profit from them, which gives them an incentive to in fact make their works public. But it is not property. It is a monopoly, a power given to the original creator to override normal property rights and restrict, without needing any contract to do so, what their customers do with what they buy.

If you write a novel and never give it to anyone, never sell it to any readers, then it cannot be stolen from you without breaking into your house. If you sell that novel to someone, they cannot steal that novel, either. They bought it. It’s theirs. And you no longer own it. If they decide to make another copy, that’s not stealing. If you had two copies of the novel, and you keep selling copies, that’s not stealing, either. If you don’t want other people making copies of that novel, you don’t let other people read it.

Copyrights are Monopolies, not Property

A few hundred years ago, governments decided that they wanted to encourage you to let other people read your writing, or see your invention. They wanted to do this because they wanted to encourage innovation. If you never let other people see how your invention worked, or read your work of art, those people will never be able to improve on it, never be able to copy it for their own use.

Legal bodies decided that the best way to convince you to make your art public was to give you a limited window in which, even while it was public, other people could not distribute it. For that limited time, you would be the only person with the right to distribute copies of your work: you would have a “monopoly” on distribution of copies. And for that limited time, the full force of the legal system’s police power would enforce that monopoly. After that limited time, the right to make copies would return to everyone who purchased a copy. The public could copy your work and use it for whatever purpose they desired, including, so the hope went, improve on it and make better derivative works using it.

They did not do this by making the copyright in your work property. The new powers were created as “monopolies”. In “The Growth of Intellectual Property,” William Fisher writes:

The fourth and final force that has contributed to the growth of intellectual-property rights consists of a gradual shift in the terminology used by lawyers to describe and discuss those rights in a word, the “propertization” of the field. In the eighteenth century, lawyers and politicians were more likely to refer to patents and copyrights as “monopolies” than they were to refer to them as forms of “property.” The popularity of the former term derived partly from the historical origins of patent law: In England, patents in the modern sense originated in section 6 of the 1623 Statute on Monopolies, which both described patents as “monopolies” and exempted them from the general ban on royal grants of such rights. But the currency of the term also derived partly from and helped to reinforce a substantive position: like other “monopolies,” patents and copyrights were dangerous devices that should be deployed only when absolutely necessary to advance some clear public interest. Thomas Jefferson was the most prominent adherent of this view, but many others shared his attitude to varying degrees.

Unlike all other creators, creators of art and “inventions” were given special monopolies when their work was made public so that they would in fact be made public. In exchange for this monopoly, that their work be kept from the public domain for a limited period of time, it would return to the public domain after that limited time. And since it’s been made public, it can be used for future works.

In the United States, that limited period was fourteen years. For certain works, the original creator was allowed a one-time extension of another fourteen years. After at most twenty-eight years from the date their work was made public, the creator would lose their monopoly power over the work. (If the works were not made public, there would be no monopoly in them, but they’d also be unneeded. Anyone taking your physical property, after all, would be breaking existing criminal laws.)

A Meaningless Contract

This was the contract that copyright law was meant to embody: the public approves and pays for a special monopoly for your works, in exchange for which the public would receive those works into the public domain.

That contract is meaningless today. You can now count on that monoply for longer than you will live. No member of the public alive when you made the work public is likely to benefit from the concessions that they gave you in order to ensure that you would make it public. They will never be able to use your work, even though they paid for the special monopoly that you “temporarily” enjoy.

This, in my opinion, is why fewer and fewer people believe that copyright law applies to them. Everyone believes that their own use is “fair use” or “doesn’t hurt anyone”. And they believe this whether the work that they are illegally copying was made seventy years ago, twenty-eight years ago, or last month. Legally, there is no difference.

This is a paradox only if you don’t read history: because copyright restrictions have gotten stronger over the years, they are more commonly ignored. More people see them as ridiculous, and ignore them. More people see them as wrong and ignore them. And more people see them as irrelevant and ignore them. Technologically, it is far easier to ignore them now than it has been in the past. And the more people ignore them, the more people get away with ignoring them, because the law and your lawyer can’t catch everybody.

We see this throughout history with any over-reaching law. When alcohol became illegal, people ignored the law in droves. Because it was illegal to sell to both adult and child, alcohol dealers sold to both. They set up special speakeasies near schools just for children. There was no reason not to. Sure, it was illegal to sell to children. But it was also illegal to sell to adults. Just like it is illegal to make copies of yesterday’s top-ten music hit available for download on the net; it’s also illegal to make 1975’s top-ten music hit available for download.

If it weren’t illegal to make twenty-eight-year-old music available for download, fewer “dealers” would bother making yesterday’s hit available, and fewer listeners would take advantage of the illegal music. The law would make sense to more people, so more people would follow it. And since fewer people would be breaking the law, the law would be easier to manage. Your lawyers could go after the few remaining unauthorized copiers.

Copyright Must Not Become Property

Copyright has not yet become property, nor should it. Doing so will give media sellers inordinate control over the use of media that consumers purchase.

The cry to turn monopolies into property began at least as early as 1837, when Henry Clay told Congress that it is “incontestable” that “authors and inventors have, according to the practice among civilized nations, a property in their respective productions.”

Telling Congress certain things are “incontestable” or that some consequences “can only be conjectured” and “cannot be measured” is standard practice when you haven’t got any real arguments. Even as late as 1938 Harry Anslinger called for cracking down on Mexicans because the numbers of “murders, suicides, robberies, criminal assaults, holdups, burglaries, and deeds of maniacal insanity” caused by Mexicans (and the white children they’d corrupted) using the Mexican drug marijuana, “can only be conjectured,” and had harmful effects so dangerous that they “cannot be measured.”

Well, of course it could only be conjectured, he personally only knew of one case and that was fabricated. But Anslinger was calling on Congress to harass foreigners, while Clay was calling on Congress to be nice to them. Anslinger got his marijuana prohibition, Clay did not get copyrights extended to international works.

At that time, the United States did not honor copyright monopolies granted to people who were not citizens. If copyrights were property, this would be a dare I say it inconceivable oversight. How could property suddenly be not property when it crossed a border? But the notion that copyrights were property was not so “incontestable” that congress enacted Clay’s law. If copyrights were considered property, that would be unforgivable, but if copyrights were considered monopolies, it is quite reasonable. Governments are under no ethical requirement to acknowledge the monopolies granted by other governments.

And this was no oversight: the 1790 Copyright Act specifically forbid the monopolies of other countries from having any validity within the United States. The 1790 Act clearly does not view copyrights as property.

In 1906, book publishers wanted to control how books were sold, and forbid discount works, through an End User License Agreement on the books. The courts told them they had no power to do so. They did not own the books once the books were sold. In 1993, record companies tried to force music stores not to sell used CDs. They did so outside of the court system, and still failed. Today, record companies are also trying to keep us from listening to our music the way we want to listen to them. They are already implementing playback restriction schemes that keep us from listening to the music that we purchase; that keep CDs from playing in our car, on our computers, or in our combination DVD/CD players. Their goal is to force us to buy what we used to already own. To buy a different copy for each format that we might want to listen to the music in.

Today, software publishers are also trying to use End User License Agreements to forbid us from using our own property the way we see fit. To forbid us from selling the software when we’re done using it, for example when we switch platforms or switch to a different software package. In 2001, Adobe even took a company to court for reselling Adobe products. They lost, just as Bobbs-Merrill did in 1906.

But the more that copyright becomes property, the more of these restrictions they’ll be able to get. If copyright is property, then the copyright owner becomes part owner in everything we buy. Then, they can forbid us from selling that music we no longer listen to, that software we no longer use, or that book we don’t plan on reading again.

When DVDs first started becoming popular, movie companies tried to popularize a form of it called “DIVX” in which the consumer had no ownership rights in the DVD. DIVX wasn’t designed around ownership at all the user had to pay every time they watched the movie, unless they purchased “unlimited viewing rights”. Even then, they had no power to sell their DIVX disk along with those viewing rights, and if they tried to, it wouldn’t work: the disk would revert to its “unsold” state in a central DIVX database, and the new “user” would have to re-purchase it. Movie companies maintained the power to disable all viewings at any time. For example, Disney likes to remove their VHS tapes from the market when they bring an old movie back to the big screen. DIVX would allow any movie company to disable home viewings when an old movie was brought back, even home viewings of disks for which the consumer purchased “unlimited” viewing rights!

Fortunately, consumers were smart enough not to buy into DIVX. But if movie companies can gain an ownership interest in the movies consumers purchase, they can begin to regain the DIVX powers.

Limited Means Forever

The worst part about today’s “limited time” is that it isn’t really limited at all. First of all, the “limited time” is set by law (as I write this) at seventy years after the creator’s death. Even if the author keeled over the moment they took pen from paper, a child born that moment would be seventy years old before the work returned to the public’s use. But in fact, it never will, because as soon as the things made by major corporations start to return to the public, they lobby Congress to increase the limit. The limit will continue to be increased; it will never end. There isn’t any limit at all.

Most people are aware of this; those who are aware of the specific law call it the “Mickey Mouse Extension”. Such a law can have no moral force behind it; all it has is legal force, and legal force can only work if few enough break the law that the legal system can catch them.

Bad Laws Will Be Broken

The more people who believe that copyright law is wrong, the harder it is to enforce copyright. Copyright laws are incredibly easy to break. As authors, we need the public’s cooperation to maintain these laws. That, after all, is the contract: in return for the public’s assistance in granting a monopoly for a limited time, the public will gain full access to the work after that limited time. We as authors and creators have broken that contract; we have monopolies for longer than most people will live and we are seeing more infringement because of this.

People will not feel bound by copyright law unless they feel that copyright law is valid. And technologically, it is extremely easy to break any copyright law. It used to be expensive to make copies, but with the Internet and with photocopy machines in every 7-11, anybody can violate copyright and anybody can publish those violations. The only way that we as creators can win is if the ones whose custom we would otherwise benefit from just don’t want to. And they will only “not want to” if they consider copyright laws reasonable.

And the converse is true: the more unreasonable we make our copyright laws, the more superfluous they will become. Unless we create copyright laws that the public believes in, those laws will be ignored.

This is not ownership and it is not stealing. It is a contract between the public and the creator. It involves no force, no break-ins, no noises in the night. Making copyright law more reasonable is not about giving in to criminals. Some of those “criminals” are our customers or would be, if we had a reasonable copyright law that they could believe in. Both good and bad laws create criminals; this doesn’t mean that we should keep bad laws just because only criminals break them. When we ended alcohol prohibition, we weren’t giving in to criminals, we were making the law more accurately reflect what should and shouldn’t be criminal behaviour. Alcohol dealers stopped setting up speakeasies aimed at children. Likewise, newspaper editors in the United States who broke the Sedition Laws did not all go to jail for immoral behaviour: some went to jail for moral behaviour. I believe that our current copyright laws are far out of touch with what most people consider acceptable and unacceptable behaviour, and my experiences observing what people do in the real world support my belief.

If we extend the law beyond reasonable limits, people will break the law and some of them will be morally justified in doing so. Others will break the law and be morally unjustified in doing so. But the law won’t distinguish between the two. If the law is enforceable, both will go to jail; if the law is unenforceable, both will be free to continue breaking the law. Copyright laws are in the latter category. They rely on most people wanting to follow them. If we want them to be followed, they must reflect reasonable behaviour.

Authors must support reasonable copyright

As an author, I support the original copyright law: fourteen years, plus another fourteen if I’m alive and care enough to extend the copyright. That’s more than enough for me to make money off of my work, and it’s short enough that people alive today can reasonably hope to make use of my work in their lifetime.

And the copyright term should not be dependent on the life of the creator. Sure, you’ll be able to easily determine when famous writers die. We’ll know exactly when Stephen King’s works return to the public domain. But most writers today aren’t famous. There is an incredible wealth of work being created for the web today, and in two hundred years we aren’t going to know when John Smith died, or even which John Smith it was, or even if John Smith was a pseudonym. All we’re going to know is when the file was last uploaded or when it was last cached.

But the most important thing is that, whatever we choose, it be something that most people feel is right. Because otherwise it will not be followed and it will not be enforced. The only hope we have is the kindness of strangers: that they will believe the current law is moral and that it applies to them. To the extent that they do, they will respect our monopoly. To the extent that they don’t, they will not.

Imagine having a yard sale, but selling every item with a contract: the buyer is not allowed to resell the item, or even take it apart, for twenty-eight years. Then, when that twenty-eight years is up, try to change it to seventy years after you’re dead for each buyer without giving back any money. How reasonable do you think that would be?

The entire reason for copyright is that works will be able to be used by everyone for any purpose. We offer artists the special copyright monopolies to encourage them to make their work public, so that we can take and use them after those monopolies have expired. If copyright never expires, there is no reason for copyright in the first place, which is why fewer and fewer people are paying attention to copyright on artistic works. They have no reason to. They have not received anything in return for granting us our monopoly, so as far as they are concerned the contract with us is invalid.

This is not about property. For any other form of property, once you sell it to the buyer they can do what they wish with it. No other form of labor allows exclusive rights to the results of that labor even after those results have been sold. If copyright does not expire in the lifetime of those alive when the creation was released, then copyright is useless. It does not fulfill the purpose for which copyright was created. At that point, copyright might as well be removed entirely and it will be treated by the public as if it has been.

If creators do not support reasonable copyright, they will lose all copyright restrictions.

Copyright is not yet property. And it should not become property. It will be detrimental to both the creators and to the consumers of copyrighted material.

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