[EMAIL PROTECTED]:
In what other field of art or science is work routinely stolen with
so many normal consumers jumping on the bandwagon simply because
they can? There is no comparison.
You are correct. Never at any point in human history has there been
technology available to consumers to easily copy and share so many
digitizable forms of media. There _is_ no comparison.
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 quite recently, 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.
Returning to my analogy of the printing press in my previous post,
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 anything digitizable by ordinary people. 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.
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 artists
and 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 record store's stock of vinyl were burned, or
if the money in the register were 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 record, the record store and the
publisher do not lose anything they had. A more fitting
description would be that the record store and publisher get
less income than they might have got. The same consequence
can result if your friend decides to watch TV instead of
playing a record. 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.
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. Instead, the founders of our country adopted a different
idea of copyright, one which places the public first. 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."
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. 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.
Resisting the pressure for additional power for publishers depends
on widespread awareness that the listening and viewing 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.
- Craig
