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We’ve often written here about how the copyright industry loves to confuse attribution with control of copying. The two are quite different, of course: plagiarism is not the same as the unauthorized sharing of properly-attributed materials. For example, when college students download songs from the Internet, they do not replace the artists’ names with their own. The vast majority of shared files are accurately credited, even when the copying itself is illegal.

But the industry knows that the public gets much more upset about misattribution (“Artists deserve credit for their work!”) than about illegal copying (“What, I can’t share with my friends?”). So industry representatives take the easy route and simply pretend that one is the other.

I hadn’t expected to see a New York University associate provost fall for the trick, though. Marilyn McMillan, Associate Provost and CITO at NYU, has published A Note on Illegal Downloading. It starts out with a few paragraphs purely about illegal copying, then takes a turn into truly weird territory…

We know that illegal downloading of music is a widespread practice. It has become an international phenomenon, one that is hardly confined to college campuses. Its allure is clear: why would you pay for something—a song to load on your MP3 player or a movie to load on your laptop—when you can get it for free with a little exploration and few keystrokes? And why would you not share something for free with friends?

In answering those questions, the University appeals to what Abraham Lincoln once called “the better angels” of your nature and to your commitment to the culture of scholarship.

As communities of scholars and learners, research universities—such as NYU—have two primary missions: to educate students and to create knowledge. This latter mission involves the production of original scholarship and research. Accordingly it is accompanied by an enormous respect for proper recognition being given to the creator of those ideas and knowledge. In higher education, it is considered a grave act to take another’s work without permission or attribution. At NYU, which also has large and renowned programs in the arts, this respect extends to the creation of new art.

Few in this community would uphold shoplifting CDs from a record store. And few would be content to see their own work—a paper, for instance, or a journal article, or a term project in a course—taken by someone else and used without permission.

Yet, in reality, that is what you do when you download copyrighted files illegally. …

What a coincidence: that’s exactly the same analogy Hilary Rosen (the former head of the RIAA) used to offer when talking on college campuses, and it makes no more sense now than it did when Rosen first tried it. Copying is not like shoplifting (when you copy a song, the original doesn’t go missing), and it’s not like presenting others’ work as your own, either. But if McMillan had stuck to the real issue and said “Few in this community would support post-publication sharing of other people’s papers and journal articles…”, well, she might have found some of her own faculty disagreeing with her: for example, the ones who support Science Commons, the Public Library of Science, and other academic organizations devoted to the idea that sharing knowledge is a good idea.

McMillan ends with this zinger:

The Internet has brought unimaginable access to information and extraordinary flexibility and opportunities for exploration and communication. NYU wants you to take advantage of all that. But, just as you abide by certain standards of behavior for scholarship and for University life, so, too, should you abide by high standards when it comes to the intellectual property of others on the Internet.

Is it too much to ask that a university stand for the spread of knowledge and culture, and that university officials distinguish between crediting and copying? Unfortunately, McMillan is not alone in believing that the prevention of sharing is part of a university’s mission. Consider proposed Amendment 2314 to the U.S. Senate Higher Education Act of 2007 (S. 1462). It would require institutions of higher education to monitor file-sharing, report to the Secretary of Education, and “provide evidence to the Secretary that the institution has developed a plan for implementing a technology-based deterrent to prevent the illegal downloading or peer-to-peer distribution of intellectual property.”

If you’re a student or faculty member at NYU, please consider writing to Associate Provost McMillan, or pointing her to this article.

We had the pleasure of bringing Rick Falkvinge, founder of Sweden’s Pirate Party, on a U.S. West Coast tour in late July and early August, to talk about copyright reform and civil liberties. The Pirate Party is a political party based on radical copyright and patent reform, and it’s started to have an electoral impact in Sweden (see an early 2008 update).

While he was here, CNET News did an interview with him.

Videos of his talks are now available:

• Keynote speech at OSCON, the O’Reilly Open Source Conference (15 minutes), Thursday, 27 July. Note the audience member coming up to the stage right afterwards to press a campaign contribution into Rick’s hands!

• Stanford University (79 minutes), Tuesday, 31 July (or click here for audio only). This was a particularly good talk, because the audience had excellent questions.

• Tech Talk at Google (55 minutes), Tuesday, 31 July. A full presentation of the Pirate Party’s platform and strategy

• Berkeley CyberSalon (audio only), Sunday, 29 July. A panel discussion entitled “Copyright Reconsidered”, with Rick Falkvinge, Anthony Falzone, Mary Hodder, Fred von Lohmann, myself, and Jeff Ubois as moderator.

Update: Rick’s keynote at OSCON went fantastically — people literally came up to him afterwards and pressed money into his hands to donate to the Swedish Pirate Party. If you’d like to do the same, just visit www.piratpartiet.se/donate. It’s a good cause, and they make it easy for you to help. You can view a video of his keynote here

Rick Falkvinge and I just got back from Portland, Oregon (USA), where he gave a keynote speech at OSCON, the annual O’Reilly Open Source Convention. Rick is the founder of Sweden’s Pirate Party, and his speech was Copyright Regimes vs Civil Liberties.

The next morning, I gave a talk called Adventures in Copyright Reform, offering a broad, global overview of copyright reform trends, with help from Rick, who explained how copyright policy gets made in Europe.

Now we’re in the San Francisco Bay area, where Rick will give more talks during the week of Sunday, 29 July – Friday, 3 August

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The article Publishing Renaissance by Allison Randal, over at the O’Reilly Radar, is a fascinating read. She describes how her press was able to publish its first book — helpfully, she gives actual numbers:

Print-on-demand technology allows individual books to be printed as they’re ordered, and shipped directly to the purchaser. The technology has developed to the point that the quality of a print-on-demand book is equal to the quality of a traditional printed book. This style of publishing is cheap. You generally pay a small set up fee, and then have no other expenses until the book actually sells, and then only pay for the printing. (The printing cost is about $1 per copy higher than a traditional printer at high volume, and cheaper than a traditional printer at low volume.) It cost me well under my goal of $1k to produce Gravitas from start to finish. With all this power at their fingertips, publishers could experiment much more freely with low risk.

She’s very clear on the point that the advantages publishers bring are in marketing and distribution. She also remarks on the larger pattern here:

We’re already seeing a democratization of online media, where blogs and wikis grow to be more frequent sources of information than “professional” media companies. It’s good to see a similar process in more durable media.

Further evidence, I think, that the separation of creation from distribution is really beginning to settle in…

This article is now superseded by The Creator-Endorsed Mark; please see there instead.

Imagine if when you obtained a book (or a song or a movie), you could know whether or not the way you obtained it was explicitly endorsed by its author. Could you use that information to make better choices?

I think so. Here’s a scenario: you walk into your local copy shop and ask for a book you saw recommended on someone’s blog. Machines to print books on demand are already here (see the Bookmobile, for example), so let’s assume that printing up a book at a copy shop is a reasonable thing to do.

Under the current copyright system, the copy shop must have permission from the copyright holder to print the book for you. One way for them to get permission is to work out bulk deals with publishers, so that every time the shop prints a book, a certain percentage goes to the publisher (and then a percentage of that goes to the author). Another possibility is for copy shops to become publishers themselves, bypassing the traditional publishers and working out deals with authors directly.

But many other arrangements are possible, and as more and more information moves onto the Internet, we can’t predict what all such arrangements might look like, nor should we try. What we really need is a flexible framework in which authors and readers can experiment with different models, without being forced into distribution systems that are more restrictive than either party actually wants.

For example, some authors might prefer an approach that takes into account the fact that readers differ in price sensitivity. For such authors, a better arrangement with the copy shop would be to simply set a suggested donation. The shop tells the customer what the author’s suggested amount is, and the customer can include it in the final price, or increase it, or decrease it, depending on her needs and resources (the copy shop’s own copying fee sets the “floor” for the price the customer pays). The copy shop accumulates the donations and sends them in to the author by whatever means the two arrange, most likely an intermediary service.

Is this the best possible system for all creative works? Maybe, maybe not. The point is that it would be good for such experimentation to be not only possible, but easy. In that spirit, here’s a proposal for enabling experimentation.

The Author-Endorsed Mark would be a single trademarked certification symbol that anyone can use to certify their distribution of a work, if the author (copyright holder) has given them permission to do so. In other words, the author is the licensor of the mark, and the distributor is the licensee. An author would allow use of the mark in order to say “These terms of distribution have been endorsed by the author of this work.”. Someone can still distribute the work without meeting those terms, but they can only display the mark if they meet the terms. The point is to provide information, instead of imposing restraints: the purpose of the mark is to allow recipients to know what channels and methods of distribution are endorsed by an artist, yet not restrict everyone to using just those channels (unlike current copyright law).

Currently, by contrast, we have a system in which recipients never have to think about the difference between an author-endorsed channel and a non-endorsed — but still legal — channel. Although this distinction could exist in theory, in practice we rarely get to choose. Instead, most channels are both legal and (implicitly) endorsed, since distributors must negotiate with copyright holders in order to distribute.

It doesn’t have to be like this, and some artists would actually prefer a more relaxed way. Instead of being forced accomplices in a system that shuts down anyone who hasn’t negotiated with them or their representatives, what if artists could offer audiences a way to merely distinguish between endorsed and non-endorsed distributions, and then let the audiences make their own choice? “Non-endorsed” needn’t mean “illegal”, it would simply mean that distributor has not met the author’s preferences, and therefore may not use the Author-Endorsed Mark. If there’s just one mark that everyone uses for this purpose, some percentage of people will learn to look for it, just as a percentage of people have learned to look for the organic certification symbol when shopping for food.

Artists’ preferences don’t have to be about money, either. Earlier, I used a suggested donation amount as an example of a preference, but it could just as easily have been quality of paper, or print resolution, or the presence or absence of advertising on a DVD, or various combinations thereof. The Author-Endorsed Mark is an experimentation enabler: it gives artists a tool to encourage some actions without prohibiting others. Some purchasers will follow the artist’s preferences, but others will try out different arrangements — arrangements that might unexpectedly please or benefit the artist. Instead of everyone being forced to act more or less in lockstep, the way they are today, we could open up the floodgates to a real diversity of systems, while still giving people the ability to make informed choices among those systems.

During a discussion of this proposal, Brian Fitzpatrick pointed out that it might be useful to have a “negative” version of the mark: a symbol you can (or must?) use when distributing something in a way that you don’t know is in accord with the author’s wishes. I think that’s a neat idea: it forces everyone involved in the transaction to be positively aware of the choices they’re making, but without preventing the transaction itself.

That might just be the great lesson of the Internet: information beats control, every time.

As promised, here’s the Op-Ed piece (lightly edited) that I sent in to the New York Times as a response to Mark Helprin’s article on extending copyright.

Great Ideas Live Forever — But Only If We Let Them.

The title of Mark Helprin’s May 20th Op-Ed piece (“A Great Idea Lives Forever. Shouldn’t Its Copyright?”) puts an important question front and center. And the answer is a resounding “No.”

It is precisely because great ideas and great works of art live forever that restrictions on accessing them should be temporary and limited, much more limited than they are today. This is not only because access to culture and knowledge is a public benefit in itself, but also because those who create new works build on the works of their predecessors and peers. All creation is derivative — as Mr. Helprin, himself a writer, ought to know.

Treating works of the mind as physical property fails at a basic logical level: if I steal your bicycle, now you have no bicycle; if I copy your song, now we both have it. When Helprin argues that the government should not be able to “commandeer” your works (by which he means, apparently, allow them to pass into the public domain), he blurs this crucial distinction. The government is not commandeering anything. Even after leaving copyright, your work is still your own. After all, no one is arguing against rights of attribution being preserved: the world will still know who made that book, or song, or painting. What’s really happening is that the government is finally relinquishing command of the work, by allowing it to flow freely in the great creative stream where the bulk of humanity’s inheritance resides.

The question we should be asking is: for how long should the government give any private party — sometimes the author, more often a publisher — the ability to prevent others from making copies and derivative works? That is all copyright does, in the end. It is not an ownership right, it is a temporary monopoly. In possessing a copyright, I possess nothing tangible that I didn’t have before, I simply have the privilege to cause others to possess less, and can rent or sell this privilege for a fee.

But if copyright is just the option to prevent other people from exchanging information freely, we should surely demand the strongest possible proof that it benefits society, before granting such severe powers even temporarily. Yet Helprin proposes extending copyright terms to be essentially infinite. Why?

Helprin has fallen prey to three myths. The first is the fallacy of a natural right of ownership (that is, control) for works of the mind. The reason ownership makes sense for bicycles is that, without ownership, it would be too difficult to decide how a particular bicycle would be used. Imagine a world where bicycles couldn’t be owned: every time I wanted to ride mine, I might have to put it up to a vote by the whole world. Endless discussions would ensue, perhaps a run-off election.

The idea is ludicrous, of course. We have ownership so we can efficiently make decisions about exclusive allocation of resources. But the key word is “exclusive”: when the resources are infinitely renewable, as with works of the mind, I can ride my bicycle and so can you, and neither of us need interfere with the other. The idea that owning creative works is somehow a natural right thus founders on the rocks of physical reality. When Helprin equates copyrights with houses, he chooses a bad metaphor, and comes to bad conclusions.

The second myth is that of the lone genius, the solitary creator whose works spring de novo from some unique spark, owing nothing to anyone else. That’s simply not how creativity works. It is sobering to realize just how many masterpieces we would be without now, had copyright laws always been as strict as they are today. Helprin cites a Mozart aria as an example of art (and let us note, in passing, that Mozart was paid through grants, commissions, and salaries, not through copyright royalties). If Helprin is fond of opera, has he considered that we would likely be without Verdi’s “Macbeth”, had Shakespeare’s plays not been part of the public domain, accessible to all as a basis for derivative works? I pick this example at random; there are many others. Derivation is not some statistical outlier, it is the norm, and the freedom to practice it has been central to creativity for millennia. Transcription, rearrangement, quotation, and translation of other works have always been the marrow of art, as any musician, painter, or writer can testify. Only recently have we begun insisting that certain of these creative imitations be kept private, or else be subject to the grueling process of “rights negotiation”, which causes so many works of art to be suppressed or heavily modified.

The third myth, which Helprin relies on unquestioningly, is that today’s severe copyright regime is justified because it provides an economic basis for creativity. A look at the lives of most artists suffices to show how wrong this is. Today, as in the past, most creators fund their activities through day jobs, grants, commissions, patronage, sale of first-print rights, and performances — but only rarely through copyright royalties. It is true that a small minority of creators do earn a living from copyright, and if we think that business model worth preserving, we should be considering how long copyright terms really need to be to support it. It’s hard to imagine, though, that if we evaluated copyright strictly as an economic incentive, we would be able to justify multiple decades of monopoly control, as we currently have, let alone extending and tightening that control to the degree Helprin proposes. A few years of copyright? A decade, perhaps? These are the lengths of time within which most copyrighted works make most of their royalties. Restrictions beyond that should be viewed at best as indulgences, certainly not as rights.

Helprin writes that “an agricultural-age law makes no sense in our creative era”. But copyright is not an agricultural-age law. It was designed in the early eighteenth century around the limitations of the printing press. Publishers, not authors, proposed it as a compromise measure to replace an expiring censorship law. Their argument was that exclusive print rights would be needed to ensure dependable reproduction, in an age when the technology and economics of print runs were the main hurdles in making works accessible to the public. From the start copyright was not really about subsidizing creation, it was about subsidizing distribution, just as it is today.

Except that today we have a far better distribution mechanism than the eighteenth century ever dreamed of. We’ve just finished building a worldwide copying and editing machine — the Internet — and this is no time to shrink from using it. Mark Helprin’s proposed course would hurt artists and the public alike. Instead, we should be trying to reduce copyright to the minimum needed (if any) to bring new works into existence, and treating works of the mind as seeds, to be returned as soon as possible to the fertile earth of the public domain.

Note: This article was updated and expanded in December 2012.  You can view the new version here.

One of the biggest problems with today’s copyright system (and patent system, for that matter) is that there is no economic pressure pushing works toward the public domain. Instead, the incentives are all structured toward copyrighting for as long as possible — far past the point of really benefitting even the copyright holder, let alone the public. Below is a proposal for a truly balanced policy, one that that would give copyright holders a motivation to release works sooner, and give the public a way to influence how long any particular work stays under copyright.

This article describes a new copyright system, one designed to reflect the public’s interest in moving works into the public domain, while at the same time preserving the most useful market characteristics of the current system. It works through a tempered monopoly: instead of offering today’s automatic, fixed-term, and essentially zero-cost copyright grant, it offers a monopoly whose value and duration are based on a combination of the public’s and the creator’s interests, which are not necessarily at odds.

Best of all, it is simple and low-overhead. It does not require any complex negotiations, third-party assessments, or intricate pricing formulas. Here’s how it works:

First, new creations would still get an initial automatic copyright term, but fairly short: on the order of three to five years. Today’s copyright terms automatically last many decades — holders are given years of monopoly power regardless of whether they actually want or need it. Thus the first step is to arrange things so that, if the owner does nothing, works will enter the public domain much sooner than they would today.

Later we’ll look at the question of initial term lengths in more detail. For now, let’s focus on the moment when a work is about to default into the public domain under this new system.

Assuming the copyright owner takes no further action, the work just enters the public domain [1].

But there’s an alternative: instead of letting the monopoly lapse completely, the copyright owner can choose to register the work each year for continuation of copyright, with a registration fee proportional to the self-declared value of the work. That is, the copyright owner picks a number of dollars that she claims the work is worth. It can be any number at all, but the yearly registration fee will be a percentage of it — for discussion’s sake, say 2%. (The exact proportions don’t matter here: it could be 1% or 5% instead of 2%, registration could be semi-yearly instead of yearly, etc. The idea is the same, regardless of the details.)

Now comes the key: since that declared value is now a matter of public record, anyone can pay it to the copyright owner to liberate the work into the public domain. This would be a mandatory transaction: the copyright holder has declared what the work is worth, and has an incentive not to declare too high, because she’ll have to pay a percentage of it to renew every year. Anyone willing to pay the total amount can cause the work to go into the public domain.

Because the value of a work may change over time, the registrant may adjust the declared value up or down each year when renewing the registration [2]. This is also one of the reasons behind that initial brief (but free) monopoly term: it gives the copyright holder a chance to see what the work is worth, and she can use that information to decide how much to register the work for when the initial term ends.

Let’s run through an example. Suppose I write my great novel, “The Helprin Affair”. For a brief period of time, I have a regular copyright, just like today. After that, I decide to register to keep my copyright. Calculating (based on sales so far) that my novel is worth US $100,000, I therefore pay $2000 to the copyright office, which I can afford, because the novel has been selling strongly and I’m sure I’ll make that back in royalties this year too. The next year, I make the same decision… But eventually, there will come a time when it’s no longer worth it to me. At that point, I can either reduce the declared value, so as to pay a smaller fee, or release the work entirely. (There should be an upper limit on renewals, however; no work should be kept out of the public domain permanently. Monopolies are still monopolies, after all.)

At any time after my initial registration, some third party can look up the declared value of “The Helprin Affair” in the copyright office’s records, and pay me $100,000 to liberate it on the spot, or in later years perhaps less or more, if I’ve changed the declared value in subsequent registrations.

Note that this is not a purchase of the copyright itself, but rather a liberation of the work from copyright entirely. People would still be free to lease or sell their copyrights as before, for whatever price they can get (which, interestingly, may be higher or lower than the registered value — the market dynamics behind that decision are just as rich as those involved in determining a work’s value under today’s copyright system). But whoever the owner is, whether the author or someone else, they’re responsible for keeping up the registration. And while the work is still under registration, anyone can come along and pay the registered owner the declared value to liberate it. The justification for making this a mandatory transaction is that since the copyright owner chose the price in the first place, it is by definition fair, and the public’s ultimate interest is in having the work be available to everyone, without restriction.

The initial term, for which no registration is required, has some purposes beyond just giving the creator a chance to assess the market value of the work.

First, requiring explicit registration from the very beginning would penalize small-scale artists disproportionately: they are likely to be short of resources and to either forget to register, or not know how. They would thus be unfairly disadvantaged in comparison to those working with publishers, who have a legal staff to remind them of registration requirements. But after an artist has a chance to see a work succeed, they’re not likely to forget to register it (though a few may still forget — no system is perfect).

Another reason to grant a free initial period of copyright is conservatism. Although I’m not convinced that copyright is truly necessary at all in the Internet age, there is at least an argument for giving new works a “clear landing space” for a few years after their creation: a default exclusive copyright, much like today’s but lasting a shorter time, can help give the work time to establish its own identity. Again, I’m not sure this is really necessary — but it wouldn’t be excessively harmful, and it might make a lot of people more comfortable with reform.

There is a balancing act going on here. It may be useful for the original work to have time to become known on its own terms, before derivatives appear that capitalize on the momentum of the original work’s initial appearance but that might also eclipse it before it has a chance to make an impression. On the other hand, we also want derivatives to become possible during the “reaction cycle” of the original work, that is, during the time when the original work is still relevant, so that derivatives have a chance to be meaningful responses. (This is very similar to the right to fork in open source software; see The Wind Done Gone for an example of why this right is important in art).

So what’s an appropriate amount of time for the original work to make its splash, before having to contend with derivatives? I won’t pretend to know for sure, but for the purposes of discussion, let’s say three years. Instinctively, anything over five years feels too long to me, and less than a year feels too short. But it doesn’t matter here what the exact number is; three will do for now. That’s a period of time within which most royalty-generating works make the majority of their revenue anyway. Registrations could then continue the monopoly for another ten even fifteen years (though I think the latter number still too high, because it’s so punishing to independent derivative works).

While this proposal is a compromise, it’s at least a compromise tilted toward the public interest. By analogy, think of a homeowner who cuts a driveway opening onto a public street, in order to gain access to a private garage. If I take a streetside parking space away from the public, I expect to pay the city (that is, the public) a fee, and usually annually, too, not just a one-time fee. Similarly, a copyright owner who wants to keep a work out of the public domain should pay for that privilege. But unlike a garage, this privilege need not be permanent, because losing monopoly control over a work after roughly a decade is not as serious as losing one’s indoor parking space.

This system would go a long way toward alleviating the orphan works problem, by ensuring that the copyright owner of a work could be found (someone must be paying the fee over at the registry), and toward alleviating the ghost works problem (in which derivative works are suppressed), by setting a maximum amount of money that, for the vast majority of works, would probably still be affordable for a motivated party wanting to see that work in the public domain.

The copyright lobby frequently talks of finding an appropriate “balance” between the needs of creators and the needs of the public. Like many appeals to balance, it is usually a smokescreen for something else: in this case, for efforts to increase copyright terms and restrictions beyond their already grotesque lengths. The “balance” they’re talking about neatly presupposes that creators and the public are somehow on opposite sides, while publishers are, curiously, absent from the picture altogether. (Their portrayal is also historically suspect, as copyright was designed to subsidize distribution more than creation — that is, it’s been about publishers, not artists, all along.)

Nevertheless, why not take them at their word? If balance is such a good thing, let’s have it: a true economic balance between the desire of copyright holders to retain exclusive control, and the desire of the public to let creative works roam freely. If that kind of balance is what we want, then the Declared Value system comes much closer to it than do today’s one-sided copyright laws.

[1] Entering the “public domain” does not, of course, mean that accurate attribution is no longer protected. Crediting and copying are entirely separate things, and while the public’s interest is served when works can be copied and derived from, it is not served if people take credit for what they did not do. Thus it may be wise to legally protect attribution separately from copyright, although note that the absence of dedicated attribution laws laws has not resulted in a plague of plagiarism on the Internet. This is probably because widespread distribution and search tools are a far better protector of attribution than any law: there is no plagiarism problem in the world of open source software, for example. We’ve written elsewhere on the protection of attribution and how plagiarism is not related to copyright, in this article about Google Book Search, this article about how digital analysis resulted in the swift detection of a major instance of plagiarism, this article on distinguishing between copyright violation and plagiarism in the classroom, this article on how New York University apparently fails to make that distinction, this reader’s comment on that article, and this article about the history of copyright.

[2] Alternatively, the owner could be allowed to adjust the declared value at any time (perhaps even as a reaction to liberation offers), with the provision that any upward adjustment would require immediate payment of the difference between the old and new registration fees. However, the public domain would be better served by simply allowing adjustment only at fixed intervals: if the owner of a work can’t figure out its market value and set the fee accordingly, that is no reason to favor the owner over the public when the work is being liberated at a price the owner once clearly thought sufficient.

A ton of people wrote in to point out Mark Helprin’s Op-Ed article in this Sunday’s New York Times (“A Great Idea Lives Forever. Shouldn’t Its Copyright?”); some of them suggested writing a response.

So I’ve written one, and sent it in to the New York Times editors. As we have no problem with right-of-first-print arrangements here :-), I’m waiting to hear back from the NYT before posting it on this site. The NYT will let us know within a week if they’re going to run it. [Update: they didn’t run it, so it’s posted here now.]

In the meantime, though, recent Canadian law school graduate Jacob Tummon wrote in with a piece that’s as good an answer to Helprin as we could ask for, although he didn’t write it as a response to Helprin. It’s called “The Case for the Elimination of Copyright” (http://legaltree.ca/node/559), and it’s a really good, thoroughly-footnoted analysis of the cases for and against copyright — economic, moral, and legal.

Tummon writes from a Canadian legal perspective, and helpfully compares Canadian with U.S. law at several points. There are also some great quotes from skeptics in copyright jurisprudence, including Stephen Breyer, who is now a judge on the U.S. Supreme Court. All in all, highly recommended.

Ironically, at the bottom of the page is a notice saying “Copyright © 2007 Legal Tree Project Inc.” I suspect that notice is just placed there automatically, and that it’s questionable under Canadian law whether they actually have an exclusive copyright on the piece, but Jacob himself could probably say authoritatively.

[Note: this article was featured on Slashdot when it originally appeared, and has been edited slightly since then.]

Recently, Slashdot carried an interesting — and in my opinion mistaken — piece by Greg Bulmash about copyright and open source. Here’s Slashdot’s summary:

Reader gbulmash sends us to his essay on the fallacy of those who would abolish copyright. The argument is that without copyright granting an author the right to set licensing terms for his/her work, the GPL could not be enforced. The essay concludes that if you support the GPL or any open source license (other than public domain), your fight should be not about how to abolish copyright, but how to reform copyright.

The piece contains flaws in both its reasoning and its rhetoric, and deserves a rebuttal, in part because it reached such a wide audience.

The piece’s most obvious problem is its conflation of copyright with “creditright”. For example, here’s how Bulmash asks us to imagine what would happen if the GPL (a copyright license that allows derivative works, but only if they are also under the GPL) were unenforceable:

You create some cool open source app. Then some megacorporation comes along, removes all your claims of credit, adds 10% more code, compiles it, and distributes the executable binary locked up in DRM. […] Would that theft of your work act as a disincentive to creating more works? Would you say to yourself, “why bother slaving away to create this when some megacorporation can just steal it, put their name on it, and lock it up in DRM”?

This mixes up two completely different concepts: the right to be credited for a work, and the right to control distribution of that work. Attribution and copying are not the same thing: those who download songs illegally from the Internet do not typically replace the artist’s name with their own, after all, and yet the RIAA is still filing lawsuits. So attribution is not really the issue here (and in general, letting data be copied freely actually helps prevent plagiarism, a topic covered in more detail here). In any case, no one objects to laws that protect credit. By all means, let’s prevent the megacorporation from distributing your work without crediting you proportionally. But it would be a misnomer to call such protection “copyright” law, because it wouldn’t have much to do with controlling copying. It would be a creditright, because it would simply enforce proper crediting.

That passage also shows a larger problem in Bulmash’s piece, which is that, circularly, his language often assumes the very points he’s arguing for. He talks of “theft” and “stealing”, as though when the megacorporation gets your work, you somehow lose the work. Again, if he had objected to the theft of your credit, that would be perfectly reasonable, since the degree to which someone else claims credit for your work is exactly the degree to which you lose credit. But he’s apparently talking about the theft of the work itself, and this makes little sense when applied to works of the mind. If I steal your bicycle, now you have no bicycle; if I copy your computer program, now we both have it.

All these problems can be seen at once in a paragraph near the opening of his article:

The problem with a large part of the anti-copyright crowd is that they don’t understand or won’t admit what copyright entails as a concept. That is the right of the creator of a work to exert some control over how it’s used, who can copy and distribute it, and a right to have their authorship acknowledged.

Notice the rhetorical sleight-of-hand there: he presents copy control as a natural and uncontroversial “right” — and then accuses his targets of simply not understanding (or refusing to admit) that copyright entails that right! Of course that’s not true: the abolitionists understand perfectly well what the laws are today, they’re just trying to change them, on the grounds that the laws are bad. If Bulmash wants to argue that control of distribution should be a right, that’s fine, but instead he just asserts the right as though it’s a fact of nature, like the sunrise, beyond reasonable dispute. And again, he conflates control of distribution with acknowledgement of authorship.

Now let’s move to the core of Bulmash’s piece, which is his claim that open source software licensing depends on copyright. Here he does have a point, just not as broad or lasting a point as he thinks. For one thing, he tries to apply the argument to all open source software licenses, when it really only applies to the GPL. That’s why all of his examples use the GPL, and not other licenses. The GPL is unusual among open source licenses in that it has a “copyleft” provision: it requires that if you make and distribute a derivative work based on a GPL’d original, your derivative must also be under the GPL. It is true that this provision currently depends on copyright law for enforcement, and on various occasions it has had to be enforced, sometimes publicly, sometimes behind the scenes.

But while Bulmash is technically correct that this part of open source licensing depends (today) on copyright law, he’s missing the forest for the trees.

I’m not arguing, by the way, that total abolition of copyright is necessarily the best thing. I do think it’s a defensible position, though, and that either abolition or very fundamental changes to copyright terms and restrictions are needed to save our culture from being stuffed into a vending machine and sold back to us dollar by dollar. But that’s a topic for another article. With respect to Greg Bulmash, my point is just that copyright abolitionists are being perfectly consistent when they use the open source movement as an example.