Can laws be copyrighted? Carl Malamud and public.resource.org say no...

seal of public.resource.org

Thanks to James Jacobs for sending in a link to the article "He's giving you access, one document at a time" by Nathan Halverson at pressdemocrat.com. It's about how Carl Malamud and public.resource.org are defying the state of California by — get this — putting California's laws online for public access.

You wouldn't think that would be a particularly controversial thing to do. In fact, you might even expect California to have done so already, and in standard, parseable electronic formats too (as per the Open Government Data Principles). But instead, California enforces copyright over the texts of its laws. Quoting from the article:

California asserts copyright protections for its laws, contending it ensures the public gets accurate, timely information while generating revenue for the state.

"We exercise our copyright to benefit the people of California," said Linda Brown, deputy director of the Office of Administrative Law, which manages the state's laws. "We are obtaining compensation for the people of California."

It's a great example of how copyright restrictions inevitably spread to new areas, without regard to the public purpose. The logic goes something like this: the law is a text; a text has value according to its usefulness; if a text has value, someone can make money by restricting who shares it and then charging money for a lease on that monopoly; the state always needs revenue; ergo, the state should restrict the spread of its own laws, in order to raise funds! The reasoning is bizarre, almost breath-taking in its audacity. And it leads civil servants to claim, with straight faces, that the state has an interest in denying people access to the text of the law.

What's most interesting is how clearly this case reveals the old relationship between printers' monopolies and copyright law. California justifies their copyright restriction in exactly the same way the English Parliament justified the first copyright law: that the public good is best served by profitable distribution, and that means supporting printers by giving them a monopoly.

Of course, that argument made a lot more sense in 1709, when there wasn't an Internet around to allow zero-cost distribution of public goods :-).

"Piracy Is Not Theft" graphic by Patri Friedman

Piracy Is Not Theft

Thanks to Jessica Ferris for sending in this great image by Patri Friedman. How much more simply can one say it? Copying leaves the original untouched, therefore copying is not theft.

It's interesting to read some of the commentary on Friedman's post. For example: "This seems like semantic hair-splitting. If I go to some sort of practitioner of whatever and walk out without paying, I haven't stolen anything tangible, just their time. Is it meaningfully different than if I'd reached into their wallet and removed $60 or whatever? I doubt they'd be any less cheesed off if I told them "actually what just happened wasn't technically theft, it was something else." [1]

Friedman's response is terrific:

It is not semantic hair-splitting. It is a simple, genuine, important difference. Your example indicates that you don't understand it, which I find weird:

"If I go to some sort of practitioner of whatever and walk out without paying, I haven't stolen anything tangible, just their time."

But their time is not a copy. It is irreplaceable. They will never get those moments back. Therefore what you have done is theft. If you used the public record to create an AI simulacrum of the practitioner, and consult the simulacrum instead of the practitioner, that is analogous to pirating the time of the practitioner. (You may be stealing the time of the simulacrum, but that is a separate issue).

The question is not tangibility. The question is whether, after I do ____, someone else then has less of something than they did before. If I "go to someone for their services, and don't pay them", they have less time than before. If I ask Google what I was going to ask the professional and so don't need their services, they haven't lost anything.

There is a comment relating copyright with trademark law (that's something that we see all the time; can we come up with an equally powerful graphic to show how they're unrelated?). And there's the inevitable comment reiterating the received theory argument, which says that without monopolies people won't be motivated to innovate. We really need to start countering that one with the point that a monopoly in a given field tends to suppress innovation in that field. And anyway, where's the evidence? If these monopolies are so necessary for innovation, then why is there no shortage of innovation where monopolies are not given (the fashion industry, say, or cooking).

But all these words don't match the eloquence of Patri Friedman's graphic. It's simple, memorable, and irrefutable.

And no, by the way, I didn't ask Patri Friedman before posting a copy of the image here. His whole point is that we shouldn't have to. We credit him and link back, of course, because credit is like time or money, in that when you take it from someone, that person actually loses something. Copying the image while still giving him full credit is exactly in the spirit of his post.

August Break.

The Beach

Hey everyone: it's been quiet around here because I'm on vacation for August (and have already been for part of July).

No, this is not because copyright reform must involve long vacations. It's just that I'm in the middle of a move, and need some extra time to complete it. (But I admit there are a few beaches involved too.) Someday, it will be the case that just because I take a break doesn't mean QuestionCopyright.org does — but we're not there yet.

See you in September, and enjoy your summer (or winter, if you're in the Southern hemisphere).

-Karl Fogel

Pages

Subscribe to QuestionCopyright.org RSS