Question Copyright welcomes two new members: legal interns Kat Walsh and Victor Cohen, who will be working with our counsel Karen Sandler.

Victor is a third-year student at Brooklyn Law School, and has worked with the Brooklyn Law Incubator and Policy (BLIP) Clinic helping to defend artists against copyright infringement suits. Kat is in her last semester at the George Mason University law school, focusing on copyrights, patents, and trademarks, and is currently the Executive Secretary of the Wikimedia Foundation, where she has been a board member since 2006.

You’ll see their names appear more and more here in the coming months, as they take a hand in current and upcoming projects. Welcome, Kat and Victor!

Danny Colligan Ferris(Translations: Беларуская)

A lot of our work at Question Copyright happens in small chunks, because the issues and myths surrounding copyright are so numerous and interconnected that it’s usually best to disentangle them and try to deal with them one by one. (That’s what the Minute Memes project is all about, for example.) Slowly, brick by brick, we’re trying to strengthen the idea that sharing culture is a human right.

But sometimes it’s nice to just come right out make the case all at once too, through straightforward, rigorous reasoning. The article below from Danny Colligan is a resource we’ve long needed: an “article of reference” that lays out the arguments against copyright restrictions in a thorough, well-organized and well-referenced way. Each section in this article is meant to be linked to (just hover over a section title to see its link name), the article as a whole is a great read from beginning to end, and the references section is a treasure trove. For any open-minded skeptics of copyright reform out there, this is the perfect place to start — if you’ve been wondering how people could possibly object to copyright, the answer is below.

What We Lose When We Embrace Copyright

by Danny Colligan

Table of contents

Scope of this article

This article is intended for a general audience. No technical nor legal background is assumed. Also, I only examine American copyright law here.

Introduction

With the advent of computers and computer network technology, copyright law has become increasingly relevant in the average American’s life. One of the themes in the relationship between technology and law has been that law frequently lags behind technology. Copyright law, however, goes even further — it plainly contradicts the realities of modern technology. Specifically, computers and computer networks copy information, often without the explicit consent of any person, and copyright law criminalizes such copying. This mismatch of legality and reality poses devastating consequences.

The downsides to copyright law are legion. Not only does copyright pose large economic costs to society, but it degrades fundamental civic institutions as well. Privacy and due process are significantly eroded under copyright law. Furthermore, academic research is stalled, the public domain is curtailed and the Internet is handicapped. The relentless expansion in the scope of copyright law threatens to take additional victims. Alleviating these problems will require nothing less than the complete elimination of copyright law.

What is copyright?

To quote from the US Copyright Office:

“Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works… [copyright] protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed… work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device.” [27]

This explanation (taken from the FAQ of the US Copyright Office) is probably the clearest, most concise official explanation of copyright. Even so, it is rather complex. Let us review the more salient points, for clarity:

  • Copyright covers artistic works
  • Copyright on an artistic work is automatically granted once it is fixed in a tangible medium (Electronic Frontier Foundation co-founder John Perry Barlow draws the analogy: “In other words, the bottle [containing the wine is] protected, not the wine.” [2])
  • Copyright has its basis in the US Constitution

The FAQ neglects to mention what form of protection a copyright affords an author or why this protection might be desirable. A different document of the Copyright Office, “Copyright Basics,” provides the answer:

“[Copyright] generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

  • To reproduce the work in copies or phonorecords;
  • To prepare derivative works based upon the work;
  • To distribute copies or phonorecords of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
  • To perform the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audio-visual works;
  • To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audio-visual work; and
  • In the case of sound recordings… to perform the work publicly by means of a digital audio transmission.

… It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright.” [28]

Again, penetrating the US Copyright Office’s legalese can prove a difficult task, so let us decipher what this really says in layman’s terms. The essential point is that copyright is a monopoly on distribution. The holder of the copyright on a work may do a variety of things with that work (distribute it, reproduce it, perform it, derive other works from it, display it publicly, etc.). Others may do those same things with that work only with the explicit permission of the copyright holder. Any unauthorized distribution, reproduction, or performance (etc.) is a violation of the copyright holder’s monopoly on those things and is therefore illegal. Violation can expose the infringer to both civil and criminal penalties.

The real rules can be found in Title 17 of the US legal code. [22]

Why does copyright exist?

Copyright exists because it is believed that monopolistic financial incentives stimulate artistic production. The same mentality held during the writing of the Constitution, when the Framers penned Article I, Section 8 Clause 8, which empowers the US Congress “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.” [31]

Many scholars speak of a copyright “balance” between the rights that publishers have vs the rights that consumers have with regard to copyrighted works. But that term does not accurately capture the exchange that is taking place here. As Free Software Foundation founder Richard Stallman points out, the best analogy is that of a trade-off. Namely, society trades some of its freedoms (the freedom to distribute copies, to make derivative works, etc.) for a limited period of time in which the creator/monopolist has the exclusive right to all of these actions. After that period of time, the work falls into the public domain, at which time the monopoly is rescinded and anyone can do whatever they please with the work. [32]

What is copyright not?

Just as important as defining what copyright is is stating what it is not. Often, people wrongly conflate copyright with the very different issues of patents, trademarks, etc. with the umbrella term of “intellectual property.” As Stallman puts it,

“The term ‘intellectual property’ is at best a catch-all to lump together disparate laws. Nonlawyers who hear one term applied to these various laws tend to assume they are based on a common principle and function similarly.

Nothing could be further from the case. These laws originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues.” [13]

Furthermore, advocates of copyright often draw confusing analogies that attempt to equate copyright infringement with actual social ills such as plagiarism [A]. These comparisons are invalid, and pointing them out as such will help to focus the discussion on the real issues.

Copyright has nothing to do with patents

Roughly speaking, copyright (US code title 17) applies to art whereas patents (US code title 35) apply to inventions. As an example, James Watt patented the steam engine since it was an invention, but would not have been able to patent a song that he wrote; a song falls into the legal domain of copyright. Patents, as opposed to copyrights, are not automatically granted by virtue of a work coming into existence — purported inventors must apply for and be granted a patent by the US Patent and Trademark Office. Patent law has its own serious problems and is also in desperate need of reform. But that is a topic for another article. The important thing for our purposes is to understand that patent and copyright laws cover completely different arenas. [B]

Copyright has nothing to do with trademarks and identity

Essentially, trademark is a protection against fraud. When one buys a can of Coca-Cola off of the supermarket shelf, the Coca-Cola trademark informs the buyer that the can is a legitimate product of the Coca-Cola company. If another soda manufacturer put a Coca-Cola label on its own cans, that would be a deceptive practice — the one that the legal protections of trademark were explicitly designed to prevent. Trademark law protects identity: it allows parties (such as sellers and buyers) to interact with one another with a certain assurance — the assurance that they are conducting transactions with whom they believe they are conducting transactions. There is no overlap in what trademark law and copyright law cover. [F]

Copyright has nothing to do with attribution or plagiarism

Copyright infringement is also unrelated to plagiarism. Plagiarism is the act of passing someone else’s work off as one’s own; that is, failing to properly attribute the work to the correct creator. Copyright infringement is the act of distributing a work without the copyright holder’s permission. To infringe on the copyright for the Beatles’ “Hey Jude,” I could, for instance, copy the song over a computer network to another location. In contrast, to plagiarize the Beatles’ “Hey Jude,” I would have to go around attempting to convince others that I actually wrote the song. [G]

Plainly, misattribution and copyright infringement are different things, but you would not know that from listening to, say, Hilary Rosen of the RIAA. Plagiarism is the cardinal academic and artistic sin, so it is no surprise that the content industry attempts to channel the outrage directed at plagiarizers for their own purposes:

The RIAA also indulges in one of the favorite tactics of the modern copyright lobby: equating illegal copying with the unrelated, and much more serious, offense of plagiarism. For example, Hilary Rosen, the (now former) head of the RIAA, used to speak at schools and colleges, urging the students to adopt the industry’s views about information ownership. Here is her own description of how she presents the case:

Analogies are what really work best. I ask them, “What have you done last week?” They may say they wrote a paper on this or that. So I tell them, “Oh, you wrote a paper, and you got an A? Would it bother you if somebody could just take that paper and get an A too? Would that bug you?” So this sense of personal investment does ring true with people.

Since people who duplicate CDs do not usually replace the artist’s name with their own, let’s ask the question Hilary Rosen should have asked: “Would it bother you if somebody could just show a copy of your paper around, so other people could benefit from what you wrote, and see that you got an A?” Of course, the students would have answered “No, we aren’t bothered by that at all,” which isn’t what Rosen wanted to hear. [12] [26]

Deliberate attempts to confuse copyright infringement with plagiarism only obscure the real issues behind the two distinct concepts, to the detriment of anyone attempting to understand them.

Copyright infringement is not “stealing” nor “theft” nor “piracy”

Copyright advocates will often use derogatory terms such as “stealing” or “theft” or “piracy” to describe copyright infringement. Many in the mainstream media use these terms without questioning the implicit assumptions in these words, which biases the discussion from the outset. It is worthwhile to conduct an examination to see if these phrases are apt descriptions of the activity their users seek to characterize.

Theft is the taking of another person’s property without that person’s consent. Does, say, transmitting a copyrighted music file over a computer network — a clear case of copyright infringement — fit this definition of theft? (Note neither the sender nor the recipient is the owner of the copyright for that file in this example.) It does not, for a few reasons. First, the music file is non-rivalrous and non-excludable — technical terms in economics that mean nobody has less music after a copy is made, and both people can still enjoy use of the file. Contrast this with, for instance, a car: if it is stolen, the owner clearly can not use it. But no one really “took” the file because nobody was deprived of the use of it. Second, both parties must consent to the transaction for the file to be transmitted. Thus consent is clearly given, in contrast to theft.

What people really mean when they say “Copyright infringement is theft” is “The copyright owner is not getting paid per-copy for this particular transaction, and he would have been paid if this had been a conventional commercial transaction to obtain the information, such as the sale of a CD at Tower Records.” This statement rests on a set of shaky assumptions. In particular, if the recipient needed to pay for the information, would he have sought to obtain it in the first place? In more personal terms, would you have bought a CD at retail price if you couldn’t have gotten it for free? Other economic and psychological objections to this premise are discussed in [44].

The meaning of “piracy” has changed over the years, depending on who is flinging the insult at whom. In its modern incarnation, it is tantamount to an accusation of “theft” via copyright infringement. [29] [9]

A brief aside on computers and computer networks

Before the advent of computer technology, making copies of any kind of work (a book, a film, musical notation for a song) was laborious and potentially expensive. [C] But copying is an activity that personal computer users do many times a day, whether they know it or not. Copyright laws regulate much of this copying, thus making copyright law much more applicable to the average person than before. Since the nature of modern computer technology is core to the main arguments of this article, it is useful to quickly review what computers do with regard to copying and transmission of information.

The nature of information

On a computer, “information” is anything that can be digitized — that is, encoded in a sequence of zeros and ones (“bits”). This definition includes, but is not limited to, movies, music, software, photographs, and books. Physical objects like furniture, land or clothing can’t be digitized and so don’t fit this definition.

Information has two important properties: it is both non-exclusive and non-rivalrous. “Non-exclusive” means that any number of people can access and use it simultaneously. “Non-rivalrous” means that one person having more information doesn’t imply that another person has less. The matrix below gives some examples of other goods to put things in perspective: [30] [D]

Excludable Non-excludable
Rivalrous Private goods: food, clothing, toys, furniture, cars Common goods (Common-pool resources): fish, hunting game, water
Non-rivalrous Club goods: satellite television Public goods: national defense, free-to-air television, air, information

The nature of computers

Computers fundamentally depend on copying to successfully operate. Without the ability to copy, computers would be stripped of much of their functionality. Computers copy in two cases: upon the instruction of the user, and as a performance enhancement.

In the first case, a user often commands a computer to copy bits from one location to another. Usually this is done in the context of a file. A file is nothing but a stream of bits (and therefore information) which happens to be managed by a particular software abstraction called a “file system”. Of course, users can copy bits across file systems as well, as when a user copies a music file to an iPod or other digital media device.

The second case: most computer users are familiar with files, but not all are familiar with how computers copy information without the explicit permission of a user. For performance reasons that are beyond the scope of this article, computers are continuously moving information back and forth through the “memory-storage hierarchy.” This hierarchy consists of various physical components that make up a computer: the hard disk, main memory (RAM), caches, registers, etc. Each level of this hierarchy has different performance characteristics: hard disks are large but slow, whereas registers are very fast but also scarce. Pre-emptive copying between levels of the hierarchy, called “caching,” is necessary for good computer performance. Caching is real copying, and it happens automatically and very frequently (perhaps hundreds of times a second) without any user control.

The nature of computer networks

Computer networks also fundamentally depend on copying to successfully operate. If you are viewing this article over a computer network, then several copies of this text were made in the process of displaying it on your screen.

The information that is this text was probably copied from disk to main memory in the remote server computer. The information was then sent over the Internet via many hops between routers. Routers are the computers that enable the flow of information on the Internet. When a router receives information, it determines the destination of the information and then copies the information over a network connection to the next closest router to the destination (much like a central post office might inspect the destination street address of a letter and then deliver it to a closer branch office). Finally, when the information reached your computer, your computer copied the data from the network into main memory, and perhaps created a temporary file for that information. To display the text on your screen, the information was transformed in a way that would be legible and copied into a “frame buffer” — the part of main memory that controls what you see on the screen.

But there is even more copying going on than that! Just as computers “cache” information within the memory-storage hierarchy for performance reasons, computer networks also “cache” information at special computers at various points on the network to achieve good performance. It takes time to travel around the world to fetch information, so there are a variety of caches deployed throughout the world that remember certain information for a brief period of time. The result is this: for the period of time that a piece of information is cached, the distance that your computer needs to travel to get that information is significantly shortened — it only needs to go as far as the nearest cache, rather than the original source of the information. Again, this caching results in further copying of information automatically taking place without the explicit instruction of any user.

The nature of the Internet

The largest and best-known of all computer networks is, of course, the Internet. The Internet connects a multitude of disparate computer networks together to form a super-network where any computer that speaks IP (“Internet Protocol,” not “Intellectual Property”) can communicate with each other. Transmission of information over the Internet has four main properties: it is instantaneous, perfect, global and free.

Instantaneous:
Of course, transmission of information over the Internet is not instantaneous in the strict sense. Network latency is still bounded by the speed of light, and transmitting a large file like a DVD over a network still takes a non-negligible amount of time because bandwidth capacity is not infinite. However, network bandwidth is exponentially improving and is currently at the point where most Internet transmissions (web sites, images, etc.) are effectively instantaneous from a human perspective.
Perfect:
The Internet makes perfect copies of information. When a file is copied from one computer to another, the sequence of bits in that file at the destination computer is exactly the same as the sequence of bits in the origin computer. This is a marked contrast to older forms of copying (by hand, printing press, etc.) where a perfect copy was exceedingly difficult, if not outright impossible, to produce.
Global:
The Internet has no physical boundaries. Any computer connected to the Internet can contact any other computer on the Internet, regardless of its physical location.
Free:
Transmitting information over the Internet is essentially free in the gratis [E] sense. From the perspective of the end user, there is no marginal cost to sending an additional bit over the Internet.

Why copyright is detrimental to society

When it was invented, copyright seemed like a relatively benign legal instrument. Today, however, the implications of preventing copying of certain materials are downright insidious. What begins as a measure ostensibly for the public good instead leads to profound negative consequences for society. In this section I will enumerate some of these consequences.

Copyright enforcement necessarily entails monitoring of all computer communications, and therefore the destruction of online privacy

Laws exist to be enforced, otherwise they cease to have any power. The logical conclusion of enforcing copyright law is perfect monitoring of all systems that could potentially copy any copyrighted information. In the previous section, I established that computers are particularly good at making copies and the Internet is particularly good at distributing copies. Therefore, any enforcement of current copyright law would require surveillance of anything that goes in or out of a computer — a total monitoring of network communications. [H]

How would complete surveillance be implemented?

Routers and other computers on the Internet that copy information from source to destination don’t actually look at the contents of the information to route the transmission. Instead, they only look at the headers — other information attached to the transmission which tells routers where to send the packet (the equivalent of the address on the outside of the envelope). Doing any additional inspection of the transmission beyond this simple routing is known as “Deep Packet Inspection” (DPI). DPI is the equivalent of the postman opening up envelopes sent through the postal service to look at their contents. With the use of DPI, any monitoring agent could determine the contents of the transmission and, perhaps with a little extra work, if those contents were copyrighted.

But the collateral damage of this scheme is huge. The fact is that there is no way to monitor for copyrighted content without monitoring all content. There is a reason why opening others’ mail is a federal offense — postal privacy is necessary to preserve the confidence of those who use the postal service. The DPI of all Internet transmissions would be a similar offense, eliminating the privacy of any non-encrypted transaction over the Internet. [10]

Copyright law criminalizes a large percentage of the population

It should be clear at this point that anyone using computers, and especially computer networks, is probably guilty of some sort of copyright infringement. Every artistic work that is fixed in a tangible medium is automatically copyrighted, and computers copy things indiscriminately, often without the explicit approval of their users. This is a recipe for massive copyright infringement.

Infringement Nation

It might be surprising, however, just how much copyright law has permeated our lives, especially outside of the context of computer networks. In “Infringement Nation: Copyright Reform and the Law/Norm Gap,” John Tehranian illustrates the ubiquity of copyright law by giving the hypothetical example of a law professor going through his day unknowingly accumulating copyright infringements. He doesn’t do anything particularly out of the ordinary, but singing, taking photographs, etc. all somehow constitute a copyright infringement in their own unique way. At the end of the day, even without the use of file-sharing networks, Tehranian’s hypothetical professor is liable for up to $12.45 million in civil damages, to say nothing of any criminal charges that might be brought against him. It is a demonstration that many normal activities, even offline, serve to implicate a person in copyright infringement. [1]

The effects of large-scale criminality

Clearly, the United States is not prepared to throw a sizable percentage of its population into jail (if only for the lack of jail cell space). But a more subtle change has already taken place. Any kind of criminality erodes one’s civil liberties on an individual level. If one is suspected of a crime, one might have one’s phone tapped or house under surveillance or computer seized for inspection. If one is convicted of a crime, one might lose other privileges — travel, voting, etc. But a society in which everyone is presumptively guilty of a particular crime (copyright infringement, in this case) is a society in which individual rights can be revoked at the whim of the authorities. This state of affairs is a profound blow to personal security and civil liberties. Electronic Frontier Foundation attorney Fred von Lohmann elaborates:

“If you can treat someone as a putative lawbreaker… then all of a sudden a lot of basic civil liberty protections evaporate to one degree or another… If you’re a copyright infringer, how can you hope to have any privacy rights? If you’re a copyright infringer , how can you hope to be secure against seizures of your computer? How can you hope to continue to receive Internet access? … Our sensibilities change as soon as we think, “Oh, well, but that person’s a criminal, a lawbreaker.” Well, what this campaign against file sharing has done is turn a remarkable percentage of the American Internet-using population into “law-breakers.” … So when we’re talking about numbers like forty to sixty million Americans that are essentially copyright infringers, you create a situation where the civil liberties of those people are very much in peril in a general matter. [I don’t] think [there is any] analog where you could randomly choose any person off the street and be confident that they were committing an unlawful act that could put them on the hook for potential felony liability or hundreds of millions of dollars of civil liability. Certainly we all speed, but speeding isn’t the kind of an act for which we routinely forfeit civil liberties. Some people use drugs, and I think that’s the closest analog, [but] many have noted that the war against drugs has eroded all of our civil liberties because it’s treated so many Americans as criminals. Well, I think it’s fair to say that file sharing is an order of magnitude larger number of Americans than drug use… If forty to sixty million Americans have become lawbreakers, then we’re really on a slippery slope to lose a lot of civil liberties for all forty to sixty million of them.” [25 p.207]

Copyright law chills academic research

Copyright has evolved from merely being a prohibition of distribution for commercial profit in certain cases to a device used to censor free speech when that speech is counter to a copyright holder’s financial interests. Researchers, in particular, have been affected. Two examples of this are the cases of Ed Felten and Dmitry Sklyarov.

Ed Felten

Ed Felten was a computer science professor who in April 2001 was preparing to submit a paper on the weaknesses in an encryption scheme developed by the Secure Digital Music Initiative. SDMI had previously invited anyone who thought they could break the encryption to attempt to do so, but only if they reported the results back to SDMI so they could improve the product. Felten and colleagues took up the challenge. But before presenting a paper documenting their exploits at an academic conference, Felten et al received a threat from SDMI that releasing their research could be illegal under the Digital Millennium Copyright Act. The logic behind this injunction was that “By publishing a paper describing how a copyright protection system could be circumvented, the RIAA lawyer suggested, Felten himself was distributing a circumvention technology. Thus, even though he was not himself infringing anyone’s copyright, his academic paper was enabling others to infringe others’ copyright.” [25 p.155-158] [23]

Dmitry Sklyarov

In July 2001, Russian programmer Dmitry Sklyarov was arrested during the Defcon security conference in Las Vegas. At the conference he had publicized a way to circumvent the copy protection on Adobe System’s eBooks. Sklyarov was eventually acquitted and allowed to return to Russia, but the case can hardly be seen as a conclusive victory for copyright law scope limitations. The jury acquitted Sklyarov on very narrow grounds that never really addressed the legitimacy or legality of copyright law itself: “Because both the defense and prosecution agreed that ElcomSoft [Sklyarov’s employer] sold software designed to crack copyright protections, the case essentially turned on ElcomSoft’s state of mind during the period it was offering the software.” [38]

Not only does this intimidation suppress active research that the targets of the injunctions are doing, it also discourages future endeavors in the academic area. Sklyarov said he would make sure any more computer security research he did would have to decisively fall within the realm of legality (never mind how vaguely defined legality is in this space). [39] For a more exhaustive list of uses of DMCA notices to halt security research, see [40].

Copyright law’s reach already extends to many things, and is expanding with no end in sight

The original provisions for copyright were very narrow. The original Copyright Act in the 18th century only endowed the authors of maps, charts and books with copyrights for fourteen years (28 with an optional one-time renewal), and only under certain conditions (authors had to be American, authors had to register their works, etc.). However, as copyright scholar Lawrence Lessig remarks in The Future of Ideas, “The distinctive feature of modern American copyright law is its almost limitless bloating — its expansion both in scope and in duration.” [24 p.106]

Expansion in duration

Copyright’s duration has expanded rapidly in the past half century after remaining relatively stagnant since the founding of the country. In 1831, Congress extended the maximum copyright term to 42 years and again in 1909 to 56 years. Since 1962, however, Congress has taken the liberty of extending copyright eleven times, with the Sonny Bono Copyright Term Extension Act of 1998 being the most recent extension. Congress also abolished the “renewal periods” in 1976, so that copyrighted works would not pass into the public domain even if the copyright holder had no interest in keeping his or her copyright (or was otherwise unable to renew it). If that sounds like a negligible change, consider that in 1973, more than 85 percent of copyright owners failed to renew their copyright. Today, the maximum term of copyright stands at 95 years. [25 p.131-135]

Expansion in scope

The expansion in duration of copyright has mirrored its expansion in scope. As previously mentioned, only maps, charts and books were originally protected. Now, the question seems to be “What is not protected?” Protection extends to architecture, drama, performances, software, etc. The original Copyright Act only prohibited republishing, but modern copyright law prohibits any derivative works, performance or transformation of the original work. Renewals have been completely abolished. Registration for copyright has also been completely abolished — now it is automatically granted. Lessig writes:

“If you write a book, your book is automatically protected. Indeed, not just your book. Every e-mail, every note to your spouse, every doodle, every creative act that’s reduced to a tangible form — all of this is automatically copyrighted. There is no need to register or mark your work. The protection follows the creation, not the steps you take to protect it.” [25 p.136-139]

Furthermore, original copyright law restricted only commercial activity. Modern copyright law restricts both commercial and noncommercial activity. [25 p.170-171]

Examples of copyright law expansion

The following three episodes demonstrate just how poisonous dramatically expanding copyright law can be.

  1. The Sonny Bono Copyright Term Extension Act of 1998 was an especially egregious law because it implemented a retroactive copyright extension, meaning that it extended the copyright term for works that had already been created. This flies in the face of copyright’s ostensible purpose, which is incentivize creation of works that had not already been brought into existence. It makes no sense to give more of a financial incentive to someone to create something that has already been created.
  2. The state of Oregon is not unique, but particularly aggressive, in enforcing copyright law with regard to the reproduction of its own state law. Restricting the distribution of laws which one must follow in order to avoid becoming a criminal raises serious public policy concerns. How is one supposed to follow the law if copies of the law are not widely accessible and available? Furthermore, the public paid for these laws already, through taxes, not copyright royalties. [33]
  3. The AACS Licensing Authority (tasked with administering the AACS copy protection scheme) issued Digital Millennium Copyright Act takedown notices — letters officially requesting the removal of material on copyright grounds — targeting a variety of sites. Those sites’ infractions? Publishing a number that the AACS LA thought it had exclusive distribution of because the number was integral to its copy protection scheme [34]. Ed Felten, no stranger to the DMCA himself, explains why claiming ownership over a number seems so orthogonal to the original purpose of copyright law:

    “Giving a private party ownership of a number seems deeply wrong to people versed in mathematics and computer science. Letting a private group pick out many millions of numbers (like the AACS secret keys), and then simply declare ownership of them, seems even worse.

    “While it’s obvious why the creator of a movie or a song might deserve some special claim over the use of their creation, it’s hard to see why anyone should be able to pick a number at random and unilaterally declare ownership of it. There is nothing creative about this number — indeed, it was chosen by a method designed to ensure that the resulting number was in no way special. It’s just a number they picked out of a hat. And now they own it? …

    “When the great mathematician Leopold Kronecker wrote his famous dictum, “God created the integers; all else is the work of man”, he meant that the basic structure of mathematics is part of the design of the universe. What God created, AACS LA now wants to take away.” [45]

For further examples of DMCA takedowns issued for supposed online infractions of copyright law, see [35].

What does the future hold?

If the past serves as a good predictor of the future, the reach of copyright law will arbitrarily extend in scope and duration. However, we don’t even need to speculate about what legislators might consider implementing because many of the bills have already been introduced. Consider the INDUCE Act, which would effectively outlaw peer to peer networks [36]. Or the Intellectual Property Protection Act, which does not simply criminalize copyright infringement but attempted copyright infringement as well [37]. For even more copyright proposals, see the list on page 246 of Against Intellectual Monopoly [3].

Copyright law creates a corporate information police, undermining accountability and due process

The Digital Millennium Copyright Act empowers every content owner to be responsible for enforcing his or her copyrights. Large content corporations, such as the constituent members of the Motion Picture Association of America and Recording Industry Association of America, have not been timid about doing so. Their objective is not fairness nor justice; their objective is profit. Copyright law puts enforcement of the law in the hands of an ad hoc corporate information police who have a history of abusing their power.

Abusive, vindictive litigation

Violators of copyright infringement are liable for up to $150,000 in damages per work under current copyright law. Needless to say, it is rare to find someone who can pay this amount. Using massive, unpayable potential damages as a cudgel, content industry lawyers often manage to convince would-be defendants to pay them around $4,000 to avoid a lawsuit. In the case where this generous offer fails, the content industry has shown itself to be more than willing to bring the full brunt of its lawyers down on hapless folks including:

  • Brittany Chan, who allegedly engaged in file sharing when she was 13 years old
  • Defendants who are disabled and incapable of using a computer
  • At least one defendant who was deceased — the RIAA intended to continue to move forward with the case before negative publicity caused the organization to withdraw the case [41]

The cards in these cases are incredibly stacked against the defendants. The content industry is suing under laws that they themselves pressed for passage in Congress. They are almost ensured a victory, since copying copyrighted content is something of which virtually every computer user is guilty. And the pockets of the content industry are deeper than those of the average defendant, since the plaintiffs tend not to pick wealthy people to sue. This dynamic flips the concept of due process on its head: guilt is assumed, and innocence must be proven.

A lack of accountability

Various studies have shown that the content industry lawyers are overzealous to the point of being irresponsible in issuing DMCA notices. Their strategy depends on the very imprecise practice of harvesting IP addresses from peer to peer networks and then attempting to identify a person based on his or her IP address. IP addresses usually do not have a one-to-one mapping to people. In fact, a research group at the University of Washington managed to receive 500 DMCA takedown notices for a printer on their network, which is incapable of any file sharing. [42] Similarly, a Princeton professor received many nonsensical DMCA takedown requests for services that were not running on his content distribution network. [21] The requirement to send one of these notices is a “good faith” belief that copyright infringement is taking place. However, there is no regulatory authority that needs to approve a sending of a notice. Additionally, copyright owners have an incentive to send out as many notices as possible, given that there is no downside for misidentification and the upside could be several thousand dollars or more. They are essentially a form of targeted spam, but unfortunately one that the recipient cannot afford to ignore.

Copyright law erodes the public domain and free culture

Copyright law exists, in theory, so that artistic works can be contributed to the public domain. When virtually no works are entering the public domain, however, the theoretical argument for copyright largely disappears. This is the case today: large content owning corporations own vast swaths of copyrights that they refuse to license to independent artists (or only do so at a high to unreasonably high rate [50]). The result is a culture controlled by the few corporate entities lucky enough to have amassed the necessary copyrights to reuse and remix the culture of the past one hundred years. These corporations profit from the government-enabled monopolistic largess flowing into their pockets, and the public loses. As Lessig puts it in Free Culture, “Never in our history have fewer had a legal right to control more of the development of our culture than now.” [25 p.170]

But what about “fair use”?

Written into copyright law is an exception called “fair use.” This provides a potential user of a copyrighted work the right to use that work, within limits. What these limits are, however, are not clearly defined. There exists a formula, written into the legal code, to determine whether a use of a copyrighted work is “fair” or not. Regardless of the input to the formula, the output is always the same: maybe it’s fair use; talk to an attorney. This protection is decidedly flimsy. The case of filmmaker Jon Else is typical:

“I did, in fact, speak with one of your colleagues at Stanford Law School … who confirmed that [my use of a clip from The Simpsons] was fair use. He also confirmed that Fox would “depose and litigate you to within an inch of your life,” regardless of the merits of my claim. He made clear that it would boil down to who had the bigger legal department and the deeper pockets, me or them.” [25 p.98]

(Aside: “Fair use” is a term that I put in the same category as “intellectual property” and “piracy” as phrases that decidedly bias a discussion in favor of the interests of content owners. What makes use of a work unfair, by default? Why is use that is fair the exception? To unquestioningly use the term “fair use” is to not seriously address these important questions.)

Copyright law poses large economic costs to society

Not only does copyright law take a toll on privacy and due process, it also burdens society in terms of dollars. It is difficult to quantify the economic cost to society of having, maintaining, and enforcing copyright and I am not aware of any study that attempts to do so. However, it can be established that the costs are significant.

Costs come in two forms. The first is the actual transfer in dollars from one party to the other. The second cost is in time, which can be converted into dollars by considering the opportunity cost of dealing with copyright. Opportunity cost is the value of the next-best choice available for how that time could have been spent. For instance, the next-best choice for an artist to clearing the rights for a new work of art (which is a legal necessity) is making more art. The opportunity cost for the artist, therefore, is the profit he would have gained by making more art.

Here is a partial list of costs incurred to support the present American copyright apparatus:

  • The cost of maintaining a US copyright office (and all time spent by individuals interacting with the office)
  • The time spent by elected officials in crafting, debating and passing new copyright laws
  • The cost to comply with copyright law by schools, libraries, photocopying businesses, etc.
  • The time spent by US attorneys prosecuting criminal copyright cases
  • The schooling and training of privately employed copyright lawyers
  • The salaries of privately employed copyright lawyers
  • The salaries of managers who oversee intellectual property divisions within a corporation
  • The salaries of judges, bailiffs, stenographers, policemen, and other court employees when copyright cases are heard
  • Royalties paid for copyright licenses
  • Damages awarded in civil copyright lawsuits
  • The salaries of lobbyists who advocate additional copyright reform
  • Lastly and most importantly, the economic activity that would have occurred if the transmission, modification and/or redistribution of certain information were not prohibited

Copyright law prevents the Internet from fulfilling its promise

The Internet is the most powerful mechanism for human communication ever devised. The potential uses of free, instantaneous, global, perfect information distribution are practically limitless. Limitless, that is, if we do not hinder ourselves with the restrictions of copyright law.

Per-copy royalties are nonsensical when copying is free and unlimited

The marginal cost of making a copy of information on the network is essentially zero. Since there is no quota on maximal copying, one can make as many copies as one wants of particular information; the supply is infinite. A supply and demand model of economics dictates that if supply is infinite, prices drop to zero. The only reason that anyone should pay for a copy of anything is that there is a limited number of copies. In other words, copies are scarce because there is a finite supply. Charging for every copy might make sense in certain kinds of markets, but not one for non-rivalrous, non-excludable goods like information.

John Gilmore’s take

Electronic Frontier Foundation co-founder John Gilmore has similar sentiments:

“What is wrong is that we have invented the technology to eliminate scarcity, but we are deliberately throwing it away to benefit those who profit from scarcity. We now have the means to duplicate any kind of information that can be compactly represented in digital media. We can replicate it worldwide, to billions of people, for very low costs, affordable by individuals. We are working hard on technologies that will permit other sorts of resources to be duplicated this easily, including arbitrary physical objects (“nanotechnology”; see http://www.foresight.org). The progress of science, technology, and free markets have produced an end to many kinds of scarcity. A hundred years ago, more than 99% of Americans were still using outhouses, and one out of every ten children died in infancy. Now even the poorest Americans have cars, television, telephones, heat, clean water, sanitary sewers — things that the richest millionaires of 1900 could not buy. These technologies promise an end to physical want in the near future.

“We should be rejoicing in mutually creating a heaven on earth! Instead, those crabbed souls who make their living from perpetuating scarcity are sneaking around, convincing co-conspirators to chain our cheap duplication technology so that it won’t make copies — at least not of the kind of goods they want to sell us. This is the worst sort of economic protectionism — beggaring your own society for the benefit of an inefficient local industry. The record and movie distribution companies are careful not to point this out to us, but that is what is happening.” [23]

Conclusion

Lessig once wrote that “No one serious in this debate is promoting the abolition of copyright.” [24 p.xvi] Those words were already not true when he wrote them, and they are even less true now. With the downsides to copyright law so apparent and consequential, many are becoming decidedly more serious about this proposal. Copyright is a trade-off that the public makes with specific authors — a trade-off in which the public has recently been getting shortchanged. If the public is not reaping any benefit from a policy — indeed, massively suffering from it — it is only reasonable and responsible to advocate for its reversal. The time has come to seriously consider putting an end to copyright.

Responses

“But how will X make money if copyright is eliminated?”

This question, in my experience, is the most frequent response to the suggestion that copyright should be eliminated. X could be anyone that supposedly profits from the current copyright regime: artists, software engineers, etc. It is important to recognize that this question carries along with it an assumption about the copyright system which is wrong — namely, the belief that the objective of copyright is to subsidize certain professions. So before answering the original question, I will discuss the assumption.

Copyright is a means, not an end

Copyright is a means to an end, the end being the creation of artistic works. The monopoly given out via a copyright is not an end unto itself — in fact, any monopoly is a nonoptimal and undesirable economic arrangement, all other things being equal. So it is wrong to be primarily concerned about the revenue of people that may have profited under this scheme because their earnings were not the point of the policy of copyright in the first place. There is no Constitutional right to the success of a particular business model.

Perhaps an analogy will clarify. Suppose a government determines that national defense is a priority for the country. Because defense is so important, the government will consider granting nonoptimal economic arrangements to certain entities to further defense. Accordingly, monopolies are granted to certain defense contractors to build helicopters, cruise missiles and stealth bombers. Suppose further that, subsequently, an era of world peace dawns and the government decides that national defense is no longer as high of a priority. The government therefore dramatically cuts the defense budget which terminates the aforementioned contracts with the defense contractors. At this point someone comes along and asks, “But how will the defense contractors continue to make money now that world peace has been achieved?” The answer is that it is beside the point: giving public funds to defense contractors was only useful to the end of defense. But since the same objectives have been achieved by other means, there is no further need for this arrangement.

The point is there is no a priori obligation on the part of society to ensure that a certain profession is subsidized. That is not to say that what people that profit from copyright do is not important; of course it is. They just will have to play by the rules that all the professions that do not benefit from copyright play by — competition and innovation under the free market.

Freedom of information does not imply economic ruin

So can artists, software engineers, etc. continue to make money without artificial constraints on the distribution of information? Of course they can!

In Against Intellectual Monopoly, Boldrin and Levine point out several instances where the absence of copyright has not led to bankruptcy — quite the opposite, in fact. They give the example of authors in the nineteenth century who demanded an advance from a book publisher in return for a promise of sending the publisher the first finished work, enabling the publisher to get a first-mover advantage that would ensure profits. In modern times, they point to similar arrangements on works that are not copyrighted such as the 9-11 Commission Report that still bring in healthy earnings for publishers (even when the text is freely, legally downloadable from a web site). For breaking news stories, they argue, many often pay to get access to the headlines first, even though the same will eventually be available to the public at a later time. Other examples of industries that became profitable in the absence of copyright include the nineteenth century printed sheet music industry, the early twentieth century movie industry and the modern pornography industry. [3 p.22-39] Finally, it is worth recognizing that copyright is a relatively recent invention, and much material that would now be copyrighted was still being created before copyright’s advent:

“For at least three thousand years, musical and literary works have been created in pretty much every society, and in the complete absence — in fact, often under the explicit prohibition — of any kind of copyright protection. For the economic and legal theories of “no innovation without monopolization,” this plain fact is as inexplicable a mystery as the Catholic dogma of virginitas ante partum is for most of us.” [3 p.30]

Kevin Kelly takes a different approach in demonstrating potential profitability in an age of unrestricted copying: “When copies are free, you need to sell things which can not be copied… Well, what can’t be copied?” He offers the example of trust as something that is incapable of being copied. Also, he continues, immediacy, personalization, interpretation, authenticity, accessibility, embodiment, patronage, and findability are avenues to profit since none of them can be copied, either. Kelly also mentions advertising (which he does not elaborate on in his article) as a proven method of monetization. [5]

Karl Fogel points out a variety of current and future models that are working and could potentially work as businesses. He gives the example of the Free Software movement as an example of a successful post-copyright movement. Many companies, including Red Hat, Sun, IBM, and Google utilize the freely (as in libre [E]) available software for their own ends — some to sell support, and some to build web applications. He believes that as other industries start to come to grips with a post-copyright reality, those industries will start looking more like the modern software industry. Fogel highlights a few alternate business models that could sustain workers in a post-copyright world: fund-and-release, corporate patronage and micropayment patronage. [12]

Some, including Swedish Pirate Party founder Rick Falkvinge, go as far as to assert that the elimination of copyright will not change any business practices significantly. As he says, “What makes a profit today will make a profit tomorrow.” [11] For instance, performing artists reap concert revenues from performances without the aid of copyright.

Finally, it is worth noting that there will be many business methods and opportunities that we can not foresee. The innovation that a competitive free market demands of its participants will undoubtedly produce previously unimagined ways of doing things as it has in the past. Our inability to presently enumerate them does not imply their future nonexistence.

[Update: Danny Colligan later published further thoughts on this question, at thegreatkladderadatsch.blogspot.com/2013/07/addendum-to-what-we-lose-when-we.html (quoted by us on the last day of 2013).]

“It is true that certain present aspects of copyright are undesirable, but the basic idea seems sound. Couldn’t we tweak copyright law to eliminate your objections?”

No.

Certainly there are improvements that could be made to copyright law to mitigate some of the damage I discuss. For instance, one could imagine reinstating copyright renewals and mandatory registration so that much more work would fall into the public domain sooner. There is also room for improvement in the DMCA takedown process; perhaps the requirement of getting a judge’s approval to proceed with the notice would reduce the number of fraudulent takedowns issued.

However, the vast majority of the problems would be unsolved even with legislative modifications, because the problems are intrinsic to copyright law. That is, they derive at the most basic level from the restrictions that copyright law puts in place. Further copyright laws would not fix copyright’s economic costs, the erosion of privacy, the large-scale criminalization of the populace, the information police problem, etc.

Also, as a practical matter, one wonders how these enlightened reforms would be passed and upheld in the first place. Remember that both the legislature and the judiciary have presided over bloating increases in both the scope and duration of copyright.

“Aren’t your complaints more about the DMCA and/or DRM than copyright itself?”

No.

It is true that some of the problems I discuss follow from the application of DRM and the DMCA. DRM (“Digital Rights Management”) is a technology that allows companies to enforce their own arbitrary copyright policies. Circumvention of these policies by users of DRM’ed devices is prohibited by the DMCA. In the case of Dmitry Sklyarov, the intersection of these two phenomena caused his arrest. The DMCA is a case in point for the dramatic expansion in scope of copyright law.

However, my response is similar my response to the question of whether we could simply eliminate the undesirable parts of copyright law. Would eliminating or rewriting the DMCA make things better? Perhaps, but it wouldn’t address the problems intrinsic to copyright itself. Furthermore, given the expanding tentacles of copyright, it is not hard to imagine that if the DMCA did not exist copyright would soon grow to cover essentially the same things as the DMCA does now.

“Your article’s coverage of the advantages of copyright is lacking. How can you expect readers to fairly judge the value of copyright if you only present one side?”

(Why does no one ask this question when the copyright lobby claims that copyright is necessary to preserve civilization?)

If my article’s coverage of copyright’s upsides are lacking, that is only because there are so few advantages to begin with, not because of deliberate omission on my part. I gave these upsides short treatment in the “Why does copyright exist?” section, but will elaborate here.

Copyright has two supposed advantages. The first is the monopoly that the author enjoys; this is an advantage to the author (more realistically, the publisher) alone. It is a disadvantage to the rest of society, which must pay the monopoly-determined price to obtain, redistribute or transform the work (or, not pay the price at all if the author refuses to distribute/license it). The second advantage is to society when artistic works are produced that would not have been otherwise. As my response to the question “But how will X make money if copyright is eliminated?” shows, this is a dubious advantage since there is no evidence that artistic production suffers without copyright law. In summary, the first advantage only benefits the monopolist to the detriment of society and the second is not an advantage at all.

In any case, the point of this article is to point out the copyright’s problems, which often go unacknowledged. In light of the limited benefits copyright might bring, it is my opinion that the loss of privacy, elimination of due process, erosion of accountability, huge economic cost, imposition of criminality, public domain deterioration and Internet limitations that copyright imposes are not worth the bargain.

“Is anyone actually advocating Deep Packet Inspection on the Internet, or is that just a straw man you set up?”

I said in the referenced section, “The logical conclusion of enforcement of copyright law is perfect monitoring of all systems that could potentially copy any copyrighted information.” What exists right now is a crude approximation to that logical conclusion. The tactic for detecting copyright infringement presently seems to be harvesting the IP addresses of file sharers via monitoring of the P2P application networks themselves. This is a far from perfect tactic, and DPI would certainly be more effective. DPI is also not the only way that perfect monitoring could be achieved: instead of monitoring the network, the end hosts (that is all users’ computers) could instead be monitored. By mandating installation of spyware to detect copyrighted material, the same perfect surveillance would be achieved. See [48] for a discussion of these issues.

The content industry has been lobbying for stricter enforcement of copyright law, the logical conclusion of which is total surveillance (done by DPI, for instance), so there is reason to believe that the era of DPI-enabled copyright enforcement is not far off. See the French Three Strikes copyright law for an example. [47] Rock musician Bono’s opinion is typical of those in the content industry who advocate for total surveillance to prevent copyright infringement: “We’re the post office, [the Internet Service Providers] tell us; who knows what’s in the brown-paper packages? But we know from America’s noble effort to stop child pornography, not to mention China’s ignoble effort to suppress online dissent, that it’s perfectly possible to track content.” [49]

DPI is a multi-use technology, and detection of copyright infringement is not how the majority of DPI equipment is used (for the time being). Mostly it is used for “traffic shaping” to make some information flow through the network faster than other information, for a variety of reasons. See [46] for a good overview of DPI technology and the DPI industry.

“Wouldn’t eliminating copyright also void copyleft licenses?”

Some licenses, including the GNU General Public License (which covers the GNU/Linux kernel) and the Creative Commons Attribution Share Alike license (which covers Wikipedia), are “copyleft” licenses. In contrast to copyright licenses, copyleft licenses state that no one has an exclusive right to distribute the work. Copyleft licenses further stipulate that additional distribution of the work (or derivations) must be done under the same terms as the original work.

Copyleft licenses do depend on copyright for enforcement. So it is technically correct that abolition of copyright, all other things being equal, would void all copyleft licenses. However, it seems rather unlikely that Congress, having become sufficiently informed to realize the need for serious copyright law reform or abolition, would fail to take copyleft licences under consideration. Congress could abolish copyright but preserve copyleft provisions under a different legal mechanism.

References and Further Reading

[1] Tehranian, John. “Infringement Nation: Copyright Reform and the Law/Norm Gap.” Utah Law Review Vol.2007 (2007): p.537. Also available at https://www.law.utah.edu/_webfiles/ULRarticles/155/155.pdf
[2] Barlow, John Perry. “The Economy of Ideas.” Wired March 1994. http://www.wired.com/wired/archive/2.03/economy.ideas_pr.html
[3] Boldrin, Michele and Levine, David K. Against Intellectual Monopoly. Cambridge: Cambridge University Press, 2008. Also available at http://levine.sscnet.ucla.edu/general/intellectual/againstfinal.htm
[4] Abelson, Hal and Ledeen, Ken and Lewis, Harry. Blown To Bits. Upper Saddle Rivier, NJ: Addison-Wesley, 2008.
[5] Kelly, Kevin. “Better than Free.” 2 May 2008. http://www.edge.org/3rd_culture/kelly08/kelly08_index.html
[6] Stallman, Richard. “The Right to Read.” Communications of the ACM Volume 40, Number 2 (1997). Also available at http://www.gnu.org/philosophy/right-to-read.html
[7] Stallman, Richard. Free Software, Free Society. Boston: GNU Press, 2002. Note: other articles by Stallman that I used and cited separately are also included in this book, which is also available at http://www.gnu.org/philosophy/fsfs/rms-essays.pdf
[8] Clarke, Ian. “Freenet Philosophy.” http://freenetproject.org/philosophy.html
[9] Stallman, Richard. “Words to Avoid.” http://www.gnu.org/philosophy/words-to-avoid.html
[10] Schneier, Bruce. “The Value of Privacy.” 19 May 2006. http://www.schneier.com/blog/archives/2006/05/the_value_of_pr.html
[11] Falkvinge, Rick. “Copyright Regime vs Civil Liberties.” http://video.google.com/videoplay?docid=4472314929478865652#
[12] Fogel, Karl. “The Surprising History of Copyright and The Promise of a Post-Copyright World.” 9 October 2005. http://questioncopyright.org/promise
[13] Stallman, Richard. “Did you say ‘Intellectual Property’? It’s a Seductive Mirage.” 2004. http://www.gnu.org/philosophy/not-ipr.html
[14] Stallman, Richard. “Why Software Should Not Have Owners.” 1994. http://www.gnu.org/philosophy/why-free.html
[15] “The Problem.” Digital Freedom Web Site http://www.digitalfreedom.org/the_issue/index.html
[16] Doctorow, Cory. Authors@Google http://www.youtube.com/watch?v=xgXwmXpaH2Q
[17] Shapiro, Samantha M. “Hip-Hop Outlaw (Industry Version).” New York Times Magazine 18 February 2007. http://www.nytimes.com/2007/02/18/magazine/18djdrama.t.html
[18] Anderson, Nate. “100 Years of Big Content fearing technology — in its own words.” Ars Technica. 11 October 2009. http://arstechnica.com/tech-policy/news/2009/10/100-years-of-big-content-fearing-technologyin-its-own-words.ars
[19] “Photoshop of Horrors” The Rachel Maddow Show http://www.youtube.com/watch?v=tFaSzOJ92zU&NR=1
[20] “Apology for singing shop worker” BBC News. 21 October 2009. http://news.bbc.co.uk/2/hi/uk_news/scotland/tayside_and_central/8317952.stm
[21] Freedman, Mike. “Inaccurate Copyright Enforcement: Questionable “best” practices and BitTorrent specification flaws” Freedom to Tinker. 23 November 2009. http://www.freedom-to-tinker.com/blog/mfreed/inaccurate-copyright-enforcement-questionable-best-practices-and-bittorrent-specificatio
[23] Gilmore, John. “What’s Wrong With Copy Protection.” 16 February 2001. http://www.toad.com/gnu/whatswrong.html
[24] Lessig, Lawrence. The Future of Ideas. New York: Vintage Books, 2001. Also available at http://www.the-future-of-ideas.com/
[25] Lessig, Lawrence. Free Culture. New York: The Penguin Press, 2004. Also available at http://www.free-culture.cc/freecontent/
[26] Fogel, Karl. “New York University Confuses File Sharing with Plagiarism.” QuestionCopyright.org 7 August 2007. http://questioncopyright.org/nyu_note_on_illegal_downloading
[29] Stallman, Richard. “Copyright and Globalization in the Age of Computer Networks.” 2001. http://www.gnu.org/philosophy/copyright-and-globalization.html
[30] Wikipedia — Rivalry (Economics) http://en.wikipedia.org/wiki/Rivalry_(economics)
[33] Doctorow, Cory. “Oregon: our laws are copyrighted and you can’t publish them.” BoingBoing. 15 April 2008. http://www.boingboing.net/2008/04/15/oregon-our-laws-are.html
[34] Felten, Ed. “AACS Plays Whack-a-Mole with Extracted Key.” Freedom to Tinker. 1 May 2007. http://freedom-to-tinker.com/blog/felten/aacs-plays-whack-mole-extracted-key
[35] Chilling Effects chillingeffects.org
[36] McCullagh, Declan. “Senate bill would ban P2P networks.” CNET News. 23 June 2004. http://news.cnet.com/Senate-bill-bans-P2P-networks/2100-1027_3-5244796.html
[37] McCullagh, Declan. “Gonzales proposes new crime: ‘Attempted’ copyright infringement.” CNET News. 15 May 2007. http://news.cnet.com/8301-10784_3-9719339-7.html
[38] Bowman, Lisa M. “ElcomSoft verdict: Not guilty.” CNET News. 17 December 2002. http://news.cnet.com/2100-1023-978176.html
[39] Bowman, Lisa M. “Sklyarov reflects on DMCA travails.” CNET News. 20 December 2002. http://news.cnet.com/2100-1023-978497.html
[40] Electronic Frontier Foundation. “Unintended Consequences: Ten Years Under the DMCA.” http://www.eff.org/wp/unintended-consequences-ten-years-under-dmca
[41] Beckerman, Ray. “How the RIAA Litigation Process Works.” 9 April 2008. http://beckermanlegal.com/pdf/?file=/howriaa.htm
[42] Anderson, Nate. “Study paints grim picture of automated P2P enforcement.” Ars Technica. 5 June 2008. http://arstechnica.com/old/content/2008/06/study-paints-grim-picture-of-automated-dmca-notice-accuracy.ars
[43] Tummon, Jacob. “The case for the Death of Copyright.” The Vancouver Sun. 20 February 2008. http://www.canada.com/vancouversun/news/editorial/story.html?id=9c7df727-ab6e-4427-9281-0e2eac3f2643&p=1
[44] Oberholzer-Gee, Felix and Strumpf, Koleman S. “The Effect of File Sharing on Record Sales: An Empirical Analysis.” Journal of Political Economy, Vol. 115, pp. 1-42, February 2007. Also available at www.unc.edu/~cigar/papers/FileSharing_June2005_final.pdf
[45] Felten, Ed. “Why the 09ers Are So Upset.” Freedom to Tinker. 3 May 2007. http://freedom-to-tinker.com/blog/felten/why-09ers-are-so-upset
[46] Anderson, Nate. “Deep packet inspection meets ‘Net neutrality, CALEA.” Ars Technica. 26 July 2007. http://arstechnica.com/hardware/news/2007/07/Deep-packet-inspection-meets-net-neutrality.ars
[47] Anderson, Nate. “French anti-P2P law toughest in the world.” Ars Technica. 10 March 2009. http://arstechnica.com/tech-policy/news/2009/03/french-anti-p2p-law-toughest-in-the-world.ars
[48] Freedman, Mike. “Erroneous DMCA notices and copyright enforcement, part deux.” Freedom to Tinker. 15 December 2009. http://www.freedom-to-tinker.com/blog/mfreed/erroneous-dmca-notices-and-copyright-enforcement-part-deux
[49] Bono. “Ten for the Next Ten.” The New York Times. 2 Jan 2010. http://www.nytimes.com/2010/01/03/opinion/03bono.html
[50] Paley, Nina and Fogel, Karl. “How Copyright Restrictions Suppress Art: An Interview With Nina Paley About “Sita Sings The Blues” QuestionCopyright.org 11 November 2008. http://questioncopyright.org/nina_paley_sita_interview
[A] See [12] for a particularly egregious example of this tactic by Hilary Rosen, former head of the RIAA.
[B] See [3] for a good discussion of patent reform
[C] See [29] for a brief overview
[D] For more properties of bits, see the “Koans” in [4 p.4-13]
[E] “Free” has two meanings in English. The first meaning (as in “free beer”) and the one used here corresponds to the French gratis. The second meaning (as in “free to control your own destiny”) corresponds to the French libre. Often the French is used to disambiguate.
[F] Trademark, as it happens, stands alone as the one member of the “intellectual property” club that needs little to no reform.
[G] The proper type of law to protect against plagiarism would be trademark law, since plagiarism steals the author’s identity, thus depriving both the author and the public of the benefits of accurate attribution. This is exactly what trademark is designed to prevent. Unauthorized copying, on the other hand, reinforces the author’s identity: regardless of whether copies are legal, they still accurately give the true author’s name, and thus reinforce the author’s connection to the work.
[H] This anti-surveillance argument was one of the main planks of Sweden’s Pirate Party, a serious political party which went on to win two seats in the European Parliament in 2009 largely on the basis of concerns about digital civil liberties.

Acknowledgments

Thanks to the following people for their comments on this article: Mark Sauchelli, Diego Ongaro, Kyle Knutson, Aston Motes, Avi Flamholz, Lewis Marshall, Bud Colligan, Daniel Matthews, Todd Davies, Erick Hachenburg, Karl Fogel.

License

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What We Lose When We Embrace Copyright by Danny Colligan is licensed under a Creative Commons Attribution 3.0 United States License.

Version 1.0, published 2010-02-12

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Released under a Creative Commons Attribution-ShareAlike 3.0 license. All Creative Work Is Derivative by Nina Paley, is the second meme of our Minute Memes series. It was supported by a grant from The Andy Warhol Foundation for Visual Arts.

View at YouTube or download high resolution and OGG formats at the Internet Archive.

Subtitles:

Message: All Creative Work is Derivative.

Why: Copyright control extends not just to verbatim copies, but to “derivative works.” This has led to censorship on a grand scale. For example, the seminal German silent film “Nosferatu” was deemed a derivative work of “Dracula” and courts ordered all copies destroyed. Shortly before his death, author J.D. Salinger convinced U.S. courts to censor another author who transformed his characters. And so on.

The whole history of human culture evolves through copying, making tiny transformations (sometimes called “errors”) with each replication. Copying is the engine of cultural progress. It is not “stealing.” It is, in fact, quite beautiful, and leads to a cultural diversity that inspires awe.

How: On January 6, 2010, I emailed my Free Culture Lunch friends:

Who wants to join me on a Free Culture field trip to the Met Museum? It’s research for “Minute Meme #(2): All Creative Work Is Derivative” ( http://questioncopyright.org/minute_memes ). Where better to see real, historical examples of art influencing other art than the Met?

The goal would be to find clear examples of visual language evolution. The Met is huge, so we could split up and then regroup to discuss our finds. Or we could all look at one part together, discussing as we go along. I think they allow photography as long as there’s no flash. It would be educational, anyway, and that’s good, right? I almost never go to museums and I live in New York.

I was very affected by a South Asian sculpture exhibit I saw at the Met years ago (I was early in producing “Sita” and still seeking Ramayana art) which made it very clear how ancient Greece and India were cross-pollinating each other. There was one period in which Greek and Indian sculpture were almost indistinguishable. This is especially striking since we’re taught “Western” and “Eastern” history are separate; when the British colonized India centuries later, it was like a lost exotic land to them. That was just one tiny little part of the giant Met, and unexpected….

And so, on January 17, it came to pass:


Clockwise from Left: Mike, Robert, Sundar, Caroline, Kai, Barry, Winnie. Jenn arrived slightly later.

In an heroic effort, I managed to run through the Greek/Roman, Asian (South, South East, and Central) and Medieval European galleries. I took 482 photos that day, not knowing exactly what I was looking for. I spent the following week going through each photo, adjusting levels and contrast, and wondering what I’d do with them. Gradually I saw the possibility of animating continuous movements using poses from historical works. The photographs I had weren’t sufficient, which led me to return to the Met by myself on January 26. This time I had a better idea of what kind of photos I wanted: “full-body” shots of specific poses. I took 432 more photos, this time covering Egypt, Oceania, and the Americas.

914 photos total. I carefully examined and adjusted almost every one. 435 of them made it into a folder called “Poses,” where I sorted them into categories: Standing, Sitting, Kneeling, Walking, Couples, Dancing, Running, Angels, Christ/Cross, Madonnas, Animals, and Other. Some of those categories obviously didn’t make it into the finished movie; for example, these Madonnas:

Egyptian MadonnaAfrican MadonnaSouth Asian MadonnaEuropean Madonna

Once I sorted the poses, I masked them in Flash (tracing by hand with my trusty Cintiq stylus) to give them a clean vector edge. If I’d removed the backgrounds in Photoshop, they’d have pixellated edges, which would look “buzzy” in the finished animation.

Masking 1Masking 2Masking 3

Although I didn’t mask all of the photos, I did mask many I didn’t end up using. But once I found the right ones, it was pretty easy to put everything together. 112 photos made it into the finished piece (my counting is fallible, it may be slightly more or less, but I counted 112 in the Flash file’s Library.)

I animated on 3’s, meaning 3 frames per image/8 images per second (at 24 frames per second). Usually I animate on one frame per image/24 images per second, so animation-wise, this is in some ways my crudest, choppiest film. But the frame rate needed to be slower to give the eye enough time to see some of the detail in each photograph.

The whole movie is a single “take.” There are no cuts, zooms, pans, scene changes, or closeups. It’s usually hard to sustain interest without such editing techniques, but in this case they would have confused the eye and muddied up the experience. This movie demands a lot of concentration from the viewer, and too many tricks would distract more than help.

The music is Sita’s String Theory by genius Todd Michaelsen, who composed much of the score of Sita Sings the Blues. It is a “bonus track” he contributed to the upcoming official soundtrack CD. While listening through the entire CD master at Greg Sextro’s studio, I realized Sita’s String Theory would make a fine track for All Creative Work Is Derivative. It was CC-BY-SA licensed already, making it legally compatible with the project. Its beat is a denominator of 24fps, so it would work with my animation. And of course it sounds wonderful.


One person’s “influence” is another’s “infringement.” A time-travelling IP lawyer could find all kinds of infringements at the Met. Greeks, Egyptians, and South Asians influenced each other heavily; was this “borrowing,” “stealing,” or “copyright infringement?”

Hellenic Egyptian
This chick is an Ancient Egyptian!

Hellenic South Asian
Does this head look Greek to you? Well it’s from what is now Pakistan.

Hellenic South Asian Torso
Same with this headless dude.

And whose idea was it to put bird wings on mammals? Could the ancient Egyptians sue the ancient Greeks and Medieval Europeans for trademark infringement?

Egyptian Winged BeastGreek Harpy/GryphonHellenic Harpy/GryphonMedieval European winged lion

What derivations are transformative? Do we really want lawyers and judges determining what “transformative” is and is not? Do we want cultural progress dictated by the courts at all?

A copyright maximalist would say that this movie is uncreative, as though I used photos of old sculptures because I was too lazy to make my own. I didn’t use historical works because I’m lazy. But even lazy artists shouldn’t risk lawsuits, fines, and jail.

Or maybe the copyright maximalist would say this movie is creative, because I only photographed non-copyrighted works. But why should the legal status of the work I’m building on have anything to do with how “creative” my work is? The maximalist is working for the day when all works are copyrighted, and all culture is property. No longer shall anyone be able to build on works from the past, be it 5 minutes or 5 millennia ago.

Until that day arrives, I’ll see you at the museum.

Jesus Loop

Filmmaker Marine Lormant Sebag has released The Revolution Will Be Animated, a twenty-minute documentary presenting multiple viewpoints on copyright in the digital age, focusing on Nina Paley, author of Sita Sings the Blues and now Artist-in-Residence at QuestionCopyright.org. It’s very well-made, and includes some of the best selections of Nina Paley speaking to be found anywhere. Paley talks about how she ran into copyright restrictions herself, her decision to release her own film under a free license, and her experiences since taking the plunge into the audience-distribution model. The contrasting segments with well-known animator Bill Plympton (who continues to distribute his work under traditional copyright restrictions) are also worth a close look: his belief in the monopoly system is clear, and he says Paley simply made “a big mistake” in using music without first arranging permission.

Not to put too fine a point on it, but: what have we come to when an artist like Bill Plympton can say with a straight face that people should get permission to use music? One could hardly make a better case for radical copyright reform than his own words.

The Revolution Will Be Animated is itself released under a Creative Commons Attribution-ShareAlike 3.0 License. Spread the word.

Andy Warhol Foundation for the Visual Arts

We are pleased to announce that the Andy Warhol Foundation for the Visual Arts has given their 2009 Wynn Kramarsky Freedom of Artistic Expression Award to our Minute Memes animation project. The award comes with a grant of $30,000 USD, to fund the creation of the first three memes (one of which is already available in draft form).

We thank the Andy Warhol Foundation for their support, and for their recognition of copyright’s effects on freedom of expression. Our application to the Foundation focused on this point:

The Minute Memes project is a series of one-minute animated videos about copyright restrictions and artistic freedom, to be made by award-winning graphic artist and animator Nina Paley — author of the film “Sita Sings the Blues”, adjunct faculty at Parsons The New School For Design in New York City (teaching Visual Narrative), 2006 Guggenheim Fellow, and Artist in Residence at QuestionCopyright.org.

The Minute Memes are a response to widely-available videos and other materials from the copyright industry (see reference [1]), in which the message is that copyright is a natural and absolute property right that trumps freedom of expression and people’s ability to share and reimagine the culture around them. The Minute Memes will counteract this through visual storytelling, backed by still-image and written supplementary materials, to show how artists and audiences can thrive in a more permissive, less monopolistic environment than the one envisioned by the current copyright system.

The Minute Memes will offer an aesthetically engaging and intellectually consistent framework for considering copyright’s restrictive effects. Step by step, the series will build a new frame of reference to supplant received rhetoric about copyright — received rhetoric such as the notion of “balancing” the needs of creators and the public, which assumes that the two are in opposition; the idea that copying is a form of stealing; the idea that control over copies must be bound up with attribution; etc. We have already seen anecdotal evidence that there is a need for the Minute Memes; for example, see [2].

This grant from the Andy Warhol Foundation is also a kind of seed funding for the entire project, which will be a series of twelve or more memes (see the project page for details). We are actively seeking funding for the other memes, as well as for other projects that question and reframe copyright restrictions. If you are interested in supporting our work, or know someone who might be, please contact us or donate.

freedom of speech

Famed science fiction writer Ursula K. Le Guin recently circulated a petition opposing the Google Books Settlement.

If you want to understand why QuestionCopyright.org exists and what we’re trying to do, you couldn’t ask for a more succint demonstration than this passage below from Le Guin’s petition:

The free and open dissemination of information and of literature, as it exists in our Public Libraries, can and should exist in the electronic media. All authors hope for that. But we cannot have free and open dissemination of information and literature unless the use of written material continues to be controlled by those who write it or own legitimate right in it. (emphasis added)

When an intelligent, sensitive author like Ursula K. Le Guin can write something like that, apparently oblivious to the glaring internal contradiction, it’s clear the time is ripe for this issue to be radically reframed.

“To have freedom, we must have monopoly and control.  Up is down.  Love is hate.  War is peace.”

Seem odd to you too?  Join us.

artists

We got this submission from a performance artist who wishes to remain anonymous, for reasons that will be clear below (though we’ve verified that it is from a well-regarded performer). While we generally run attributed pieces, it’s good to have a reminder once in a while that there are many artists who are impeded by copyright but who, for professional reasons, can’t talk about it openly. When trying to measure the damage done by copyright restrictions, one must allow for the fact that creative repression is an underreported crime.


I have this one show which is kind of languishing, in part because I don’t know what to do about the music. I developed the show over the course of a couple of years, playing around with different pieces of music as the show evolved. When I came to the point where the show was “finished” and I had found music, I was so overwhelmed at the prospect of licensing it all that I… just never did.

I showed the piece once, without doing any licensing, to a packed house and a very warm reception. I did, by the way, contact the artists who made the music in my show. They’re local. And they were like, “Oh, hey, this sounds great. Yeah, go for it. But you know, it’s not our permission you need.”

And when it came time to start looking for a longer run, the licensing process was just so byzantine that yeah, I got overwhelmed and I just decided to start work on the next project.

So that show is kind of in a coma. Which is a shame! I’ve been thinking about reviving it and taking it to some festivals. I know a lot of artists in my genre who don’t ever bother licensing work, some because it’s just too complicated and some for reasons of moral indignation. But I’m afraid of doing something illegal.

The thing is, I’ve spent a lot of time learning how to make art. I have spent no time learning how to negotiate the licensing of music. These are very different skills! It’s bizarre that in order to share my art, I need to have the latter skill set, or hire someone who does. The lack of that skill set results in my work being kept secret.

It’s really backward. I would love to talk to artists directly, and negotiate something that’s mutually beneficial. Right? My work calls attention to their work. I’m a big fan of their work. I want to support their art and their livelihood. I want everyone to know about and support their work. It’s such a natural alliance, but it’s perverted by this system we have now.

And also, by the way, this system we have now seems to assume that every venture is intended to be profitable. And I know that it’s bizarre and crazy-sounding, that I might make art knowing that there’s very little chance I will make a net profit. But I do. I do that.

But the licensing system doesn’t really seem to be set up for that possibility — the possibility that my making work might benefit me in ways that are not financial, and the possibility that my work might benefit other artists — maybe even financially! — in ways that don’t come from licensing fees.

-Anonymous

Sita Sings the Blues

Sita Sings the Blues will have a week-long run in New York City’s IFC Film Center, December 25th – 31st! January 5th! January 26

This is was a full theatrical run, with 7-8 screenings a day. The filmmaker, Nina Paley will be doing Q&A after the 8:25pm shows most nights. On Monday, Dec. 28th, the conversation will be about the film’s free distribution model and the free culture movement.

It’s kind of unbelieveable that this thing has been extended for 5 weeks. Granted, it’s down to just one show a day now. But we only thought it would run one week, so this run has exceeded everyone’s expectations.

Tickets are available online. Here’s a show schedule (click on the time to purchase tickets for that show):

Woo! New showtimes – Click on the time to purchase tickets for a screening.

Nina says, “I’m doing Q and A’s tonight and tomorrow after the 8:30ish shows, then Friday and Saturday after the 4:40pm shows. Then I might take a little break, who knows.” no more Q and A’s – they were fun for the first 3 weeks though!

IFC Film Center has beautiful screens and is located at 323 Sixth Avenue at West Third Street in the West Village, right at the W. 4th St. subway station (A, C, E, B, D, F, & V subway lines).

Sita Sings the Blues is a terrific film; it won all those awards for a reason. Please tell all your New York friends — let’s pack the house!


Sita Sings the Blues

Jack Valenti, former head of the MPAA E. N. Elliott

Jack Valenti: “We are facing a very new and a very troubling assault on our fiscal security, on our very economic life and we are facing it from a thing called the video cassette recorder and its necessary companion called the blank tape.” [1]

E. N. Elliott: “(W)itness…the existence of the ‘underground railroad,’ and of a party in the North organized for the express purpose of robbing the citizens of the Southern States of their property….” [2]

Why do discussions of Free Culture trigger such strong emotional response?

People hold very strongly to ideas about the meaning of property. Jill Lepore, in a New Yorker Article called “The Politics of Death” (Nov. 30, 2009, p. 62) writes:

life, liberty, and property are the rights that Americans talk about, and fight over….Taking a long view of American history, it’s possible to argue that each of these rights has led to a fracture in the body politic, a dispute in which there seemed no room for compromise. …a swirl of disputed ideas have gathered around each of these contested rights. But, from one era to the next, the ideas have been different.

Lepore’s article concerns itself primarily with “life” politics: “…in the past half century, Americans have been fighting over the right to life.” But immediately prior to that statement lies this rich, enlightening paragraph about historic changes in Americans’ ideas about property:

In the nineteenth century, Americans worried about a conspiracy against property — a property interest in people. In 1820, the Missouri Compromise, which prohibited “this species of property” north of the thirty-sixth parallel, divided the country in half. Jefferson called it a national “act of suicide.” Four years after the Compromise of 1850 redrew the line between slave and free states, Abraham Lincoln wrote that the framers had forborne “to so much as mention the word ‘slave’ or ‘slavery’,” which left the disease festering in the body politic….in 1857, in Dred Scott v. Sandford, the Supreme Court ruled that the framers had intended to define the “negro race” not as people, but as property, to be “bought and sold and treated as an ordinary article of merchandise.” Slave owners feared an abolitionist conspiracy, “a party in the North organized for the express purpose of robbing the citizens of the Southern States of their property.” In 1859, John Brown’s raid at Harper’s Ferry realized those fears. On the floor of the Senate, Jefferson Davis made a threat: “If we are not to be protected in our property and sovereignty, we…will dissever the ties that bind us together, even if it rushes us into a sea of blood.” The following year, South Carolina became the first state to secede, citing as its reason the federal government’s failure to honor its “right of property in slaves.” The contested right to property led to the Civil War, and six hundred thousand dead.

Discussions of Intellectual Freedom and Intellectual Property dance around this cherished American right: property. (That said, the term “Intellectual Property” came into use only recently; the term was not used at all when the US Constitution was written.) Property is sacred. Ideas about property change slowly, violently, and fundamentally. Today we find slavery so morally abhorrent, it’s hard to believe that human property was a common, socially accepted institution less than 200 years ago. Property rights — even in human beings — were sacrosanct. People will fight to the death over not just property, but ideas about what property means.

Anything that challenges definitions of property can provoke heated, emotional responses — even from people with no direct stake in the property in question. I own no real estate, and probably never will, but like many I was outraged by Kelo v. City of New London, Connecticut:

“In Kelo, the Court said New London could take private property through eminent domain for the development of a hotel and convention center.”

To me and many others, it appeared the Government was undermining a fundamental “right to property.” Even as a non-property-owner, I care about what property means.

And so, statements like “Copying Is Not Theft” trigger an emotional response, even from those with no direct stake in Intellectual Property. Redefining property undermines social stability and can lead to widespread violence. Most people will tolerate certain unpalatable definitions of property (that human beings can be property in the case of slavery, or that culture and ideas can be property in the case of IP) in exchange for social stability, because social stability underlies everyone’s security.

But don’t tell that to a slave.


I hear this a lot:

“IP is problematic, but the decision to free works should be the artist’s choice.” [3]

Legally artists DO have the right to choose whether to release works freely or place copyright restrictions on them. So we don’t need to discuss “should.” The nice response is to say, “yes they have that choice, and therefore I wish to present arguments in favor of choosing freedom.” Which I do.

But I can’t help imagining this argument in the early 1800’s:

“Slavery is problematic, but the decision to free slaves should be the slaveholder’s choice.”

As long as the discussion is about “owner’s choice,” we don’t have to question how we define property.

Free Culture activists fastidiously avoid the “s-word”, even though the similarities are obvious and many, because invoking these comparisons triggers such high emotions that rational discourse becomes even less likely. And yet… “those who forget history are doomed to repeat it.” We stand to learn more about today’s struggles over “Intellectual Property” by studying historical struggles with human property. Because my audience is more level-headed than average, I’m going to explore some of these similarities here.

But first, let me clear out of the way the big difference between Intellectual Property and Slavery: cultural works aren’t people, and don’t have human feelings or rights. Owned cultural works aren’t comparable to human slaves. The argument against Intellectual Property is not that it enslaves works, but that it enslaves thinkers — audiences, artists, and all participants in culture (except the “owners,” who are harmed in other ways).

Now for the similarities:

Moral arguments

Moral arguments against slavery had been around as long as slavery itself. Although slavery diminished in the North primarily due to economic reasons, the US Abolition Movement was rooted in moral argument.

Likewise, moral arguments against patents and copyright have been around since the advent of those institutions. In 1813 Thomas Jefferson argued eloquently against what we today call “Intellectual Property”:

It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it.

Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation.

In 1841, speaking to the House of Commons, British poet Thomas Babbington Macaulay argued against extending copyright terms:

…even if I believed in a natural right of property, independent of utility and anterior to legislation, I should still deny that this right could survive the original proprietor.

I believe, Sir, that I may safely take it for granted that the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad.

It’s a great essay, just as relevant today in its moral arguments.

Its economic arguments are less relevant, as it was written 150 years before the Internet. Macaulay could only conceive of “two ways in which (authors) can be remunerated. One of those ways is patronage; the other is copyright.”

He went on to dismiss patronage:

I can conceive no system more fatal to the integrity and independence of literary men than one under which they should be taught to look for their daily bread to the favour of ministers and nobles. I can conceive no system more certain to turn those minds which are formed by nature to be the blessings and ornaments of our species into public scandals and pests.

Ironically, copyright has led to exactly the same problems as the patronage system he described. The modern “minsters and nobles” are media executives. Copyright, instead of curing the evils of the patronage system, grew to reinforce them.

We have, then, only one resource left. We must betake ourselves to copyright, be the inconveniences of copyright what they may. Those inconveniences, in truth, are neither few nor small. Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly.

If only he knew! All the vices of monopoly, plus the vices of patronage too.

Technological and Economic Changes

Today the Internet offers a third option: micropatronage, the ability of masses of fans to support artists directly. It relies on no monopolies, and fulfills democratic ideals that old patronage and copyright never could.

In the pre-bellum North, mechanical industrialization, especially of agriculture, reduced the economic incentive for slaveholding. Immigrant labor also changed the Northern economy, making slave systems less profitable. Northerners didn’t abandon slavery because they were morally superior to Southerners, but because of economic and technological changes.

Just as farm machinery lowered costs and increased efficiency in agriculture, digital devices have lowered costs and increased efficiency in production and distribution of cultural works. Musicians, artists and authors are beginning to discover their works are more profitable shared through the internet, than distributed centrally. A few economists are pointing out that free sharing of cultural works increases profitability for artists and overall wealth. They avoid moral arguments, focusing on rational market incentives. [4]

Resistance to Control

Most histories of American slavery explore changes in white attitudes. But black slaves always struggled for freedom, regardless of white political trends.

Today we argue whether “Information wants to be free.” Unlike human beings, information lacks feelings and agency. But both human property and Intellectual Property tend to resist control. Slaves somehow got through fences and borders, in spite of property laws. Modern IP owners express the same shock and indignation as pre-bellum slaveholders when their work “gets out.”

Runaway Slave Piracy.  It's A Crime.

Assisting in the liberation of human property was a Federal crime.

Unauthorized sharing of “Intellectual Property” is a Federal crime.

Underground Railroad and “Pirates”

“The Underground Railroad was an informal network of secret routes and safe houses used by 19th century Black slaves in the United States to escape to free states and Canada with the aid of abolitionists who were sympathetic to their cause. [5] The term is also applied to the abolitionists who aided the fugitives.” [6]

Under the Dred Scott decision, “liberating” slaves was illegal. From today’s point of view, the Underground Railroad didn’t “steal property,” but from a slaveholder’s perspective there was no distinction.

Today we have file-sharers, copyists, and copyright infringers, all generally termed “pirates.” There is a moral incentive to “liberate” cultural works through digital sharing [4], but to IP owners this is simply stealing property. Punishment for assisting the “liberation” of IP is severe, just as punishment for aiding fugitive slaves was.

Increasing Penalties

…the Fugitive Slave Act of 1793…made it a federal crime to help a runaway slave.

Punishment in the North for white people and free blacks who assisted in escapes was originally not as harsh — typically a fine for the loss of “property” and a short jail sentence that might not be enforced. But in 1850, penalties became much steeper and included more jail time. Whites who armed slaves, which was often necessary along the dangerous route, could be executed. In the South, anyone — white or black — who assisted a fugitive could face death.[7]

Likewise, punishments for unauthorized copying have grown increasingly severe. In some places, such as France, there are “three strikes” laws that would shut off a person’s Internet access if they are caught illegally sharing three times. In the United States, the Digital Millennium Copyright Act of 1998 increased the penalties for copyright violation when the violation takes place on the Internet.

Arbitrary Grab-Back

Like copyrights, title to slaves and their descendants were heritable to slaveholder’s descendants:

Oney Judge was interviewed by Rev. Benjamin Chase, and he published the account in a “Letter to the editor” in The Liberator of January 1, 1847. He discussed the fact she could be seized at any time, even 50 years later if Martha Washington’s descendants decided to make a legal claim.

Today, we have countless stories of authors’ descendants claiming copyright infringement, such as Martin Luther King’s kids [8].

Proliferation & Control

As slaves proliferated, their sheer numbers made them more difficult to control. Although all slave rebellions that took place on American soil were suppressed, they required enormous manpower and force to do so. Keeping human property grew increasingly expensive. Meanwhile, the more slaves proliferated, the less the problems of slavery could be ignored. The Government had to become increasingly involved with writing and enforcing slave laws — laws that benefited the few slaveholders at the expense of the many citizens. An ordinary citizen might be willing to ignore his neighbor’s keeping of slaves, until it cost him money.

Today we see a proliferation of information. More cultural works are circulating than ever before. Copyright was much more manageable when there were few authors and fewer printing presses. Today almost everyone is an author, and digital “printing presses” — computers — abound. All that information is hard to control, and the more it proliferates, the more expensive copyright becomes. IP owners must buy congressmen to write ever-more draconian copyright laws, and get taxpayer money to enforce them. As the enforcement of irrational laws sucks up ever more public resources, the public may start to wonder whether the cost of “owning” is worth it.

Big Cotton / Big Content

The big stakeholders in slavery were large plantation owners. Small farmers and industrialists had little use for it, which is why slavery was abandoned earlier in the North. In the South, “…slave ownership was becoming concentrated in fewer hands. Whereas a third of southern whites owned slaves in 1850, a decade later the proportion had dropped to one-quarter. “The American Cotton Industry relied almost exclusively on slave labor, and much of the world’s commerce relied on American Cotton [9]. Hence an 1860 pro-slavery essay collection was backed by Cotton interests and titled “Cotton Is King”.

Today, as Big Media corporations merge, IP is increasingly concentrated in the hands of fewer and fewer “owners.” Like Big Cotton before it, Big Content supplies most of our pro-IP propaganda, as well as legislation. [10]

Burden of Documentation

The laws of slave states assumed all black people were slaves. You didn’t need documentation to prove you were a slave; you needed it to prove you were not.

Likewise, modern US copyright law assumes all cultural works are property. Copyright registration is optional; all works are property by default. It is free cultural works that require documentation, not copyrighted ones. All cultural works require extensive documentation to move through mainstream distribution channels; it is never, ever assumed they are free. Cultural works without documentation are called “Orphaned Works,” and not free; great effort is devoted to finding their “rightful owners.”

Political Movements

Abraham Lincoln Swedish Pirate Party ballot

“…a party in the North organized for the express purpose of robbing the citizens of the Southern States of their property…” The Republican Party was founded in 1854 by American anti-slavery activists and modernizers, and first came to power with Abraham Lincoln’s election in 1860.[12]

“…a party in the North…” Sweden’s Pirate Party was founded in 2006 by Swedish copyright reform activists, and first came to power in the 2009 European Parliament elections, winning two seats.[13]

Rhetoric:

“Protection”

According to E. N. Elliott, in his introduction to “Cotton Is King and The Pro-Slavery Arguments” (1860): “Slavery is the duty and obligation of the slave to labor for the mutual benefit of both master and slave, under a warrant to the slave of protection, and a comfortable subsistence, under all circumstances.”

Slavery “protected” slaves. (From what? Other, less kindly slave owners?) In this way, slave owners provided a benefit to the humans they owned, taking care of them. This implied that human slaves couldn’t survive or thrive without being owned.

Likewise IP is called “protection.” Record labels claim to protect and nurture “their” artists. Cultural works are considered helpless without distributors and publishers to “manage” their rights. Corporations that own monopoly rights to artists’ output portray themselves as nurturing, protecting, and necessary.

“Property” vs. “Rights”

Owning human beings and ideas is hard to defend; owning all the money they generate is more palatable. E. N. Elliott stated: “The person of the slave is not property, no matter what the fictions of the law may say; but the right to his labor is property, and may be transferred like any other property…”

Likewise modern apologists for IP explain the works themselves are not property, but the right to use them are.

Critique of Abolitionists

Like today’s Free Culture reformers, yesterday’s Abolitionists were called communists, extremists, fanatics — and in the case of the latter, heretics:

The agitation of the abolition question had commenced…under the auspices of the Red Republicans…and by anti-slavery missionaries it had been introduced into our Northern States….

(We) discussed (slavery) not only in the light of revelation and morals, but as consistent with the Federal Constitution and the Declaration of Independence; until many of those who had commenced their career of abolition agitation by reasoning from the Bible and the Constitution, were compelled to acknowledge that they both were hopelessly pro-slavery, and to cry: “give us an anti-slavery constitution, an anti-slavery Bible, and an anti-slavery God.” To such straits are men reduced by fanaticism. It is here worthy of remark, that most of the early abolition propagandists, many of whom commenced as Christian ministers, have ended in downright infidelity. [11]

The rhetorical similarities go on and on; the above represents but a sample.


The very existence of institutionalized slavery in the U.S. goads us to question how it was possible, and ask ourselves how we would have behaved in a slave society. What would we have done if we had been slaves? Would we have risked our lives to gain freedom? What if we had owned slaves? Would we have freed them? Would we have risked our own safety to help the enslaved gain freedom? Or would we have labeled antislavery activists as extremists, as excessively sentimental, irrational, and emotional? Would we have maintained the status quo, or tried to change it? How much would we have been willing to risk to do the right thing? These questions should haunt us. We can’t go back in time to find out, but we can look at ourselves today and wonder, How will the future judge us?


References:

[1] http://en.wikiquote.org/wiki/Jack_Valenti#Testimony_to_the_US_House_of_Representatives_.281982.29

[2] http://www.gutenberg.org/files/28148/28148-h/28148-h.htm

[3] http://www.facebook.com/posted.php?id=772612641&share_id=353581805371&comments=1

[4] http://techdirt.com/articles/20091106/0128326820.shtml

[5] http://en.wikipedia.org/wiki/Underground_Railroad#cite_note-1

[6] http://en.wikipedia.org/wiki/Underground_Railroad

[7] http://history.howstuffworks.com/american-civil-war/underground-railroad2.htm and http://en.wikipedia.org/wiki/Fugitive_Slave_Act_of_1793.

[8] See http://gawker.com/5216918/martin-luther-king-jrs-children-are-shameless-greedy-shakedown-artists and especially this comment.

[9] http://www.digitalhistory.uh.edu/documents/documents_p2.cfm?doc=22

[11] http://www.gutenberg.org/files/28148/28148-h/images/x.png

[12] http://en.wikipedia.org/wiki/Republican_Party_%28United_States%29#History

[13] http://en.wikipedia.org/wiki/Swedish_Pirate_Party

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Copying Is Not Theft is the first meme in our Minute Memes series and was supported by a grant from The Andy Warhol Foundation for the Visual Arts.

Animation, lyrics, and tune by Nina Paley. Music arranged by Nik Phelps; vocals by Connie Champagne. Released under a Creative Commons Attribution-ShareAlike 3.0 license.

In addition to YouTube, we’ve also uploaded it to the Internet Archive, where you can not only play it but also download the entire video in various formats:

Just The Music:


SUNG IN OTHER LANGUAGES:


SUBTITLES:


Other Arrangements

Before we released this final version, we put up a draft version with a “scratch” track in which Nina Paley herself sang the tune, and asked others to do their own arrangements. The comments below link to some of the responses. The remixing doesn’t have to stop now, of course. In free culture, there’s no such thing as “a final version”, there’s only “our final version” — just because it’s final for us doesn’t mean it’s final for you. Any interested musicians/sound designers can re-release the whole thing with their own tracks and appropriate credits. Just add and remove sound credits as needed. The fonts are Gill Sans and Gill Sans Ultra Bold. Be sure to keep the CC-BY-SA symbols on all the credits — you’ll be releasing your modifications under the same license.

Lyrics

Copying is not theft. Stealing a thing leaves one less left Copying it makes one thing more; that’s what copying’s for. Copying is not theft. If I copy yours you have it too One for me and one for you That’s what copies can do If I steal your bicycle you have to take the bus, but if I just copy it there’s one for each of us! Making more of a thing, that is what we call “copying” Sharing ideas with everyone That’s why copying is FUN!

This track is 90 (or 180) beats per minute. The animation is 24 frames per second, with one beat every 8 frames.

There’s a great video of Nina Paley singing the song at a DIY conference — maybe worth watching to get a sense of how she hears the song in her head:

A real standout among the arrangements is this punk-surrealist remash by Norman Szabo:

copybunny floats in the clouds