Jessica Ferris

photo by Colin Lieberman

Jessica Ferris is a writer, performer, and teacher in the San Francisco Bay Area. After reading the article “New York University Confuses Filesharing with Plagiarism”, she wrote this response, exploring the process by which copying and plagiarism get mixed up with each other.

So an NYU provost confused filesharing with plagiarism. Many people do. How come?

I have a hunch that one of the contributing factors is the “Everything I Need to Know I Learned in Kindergarten” Syndrome.

Lots of copying goes on in primary schools: students copy down words from the board, teachers make copies of the week’s spelling test, administrators make copies of the parent newsletter. But when Miss Winthrop says “don’t copy,” she’s not referring to any of these activities. What she means is: “Don’t copy the work of someone else and try to pass it off as your own.” She means “Don’t plagiarize.”

But her choice of words is understandable, given her audience. “Plagiarism” is a four syllable word with tricky spelling, and understanding it requires abstract thought. How do you explain standard source-crediting practices to a seven year old? Meanwhile, “copy” is a two syllable word with easy spelling, and it refers to a concrete physical action.

I was teaching in an elementary school last week, and I looked up “copy” in the classroom Webster’s dictionary. It didn’t list “plagiarize,” as one of the meanings, but nonetheless, if I had told any of the students not to copy, that is the meaning they would have understood. I think this kind of under-the-radar meaning — the one we took as gospel from our beloved and feared primary school teachers — allows the RIAA and other organizations to so effectively confuse the general public, and even learned members of academia. To many people, “copyright” means “the right to control copying and take credit for having created the source material.”

A Case Study

When I did a Google search for “sue for plagiarism,” the top ten results were all discussions of the same case. The clever folks at Turnitin.com decided to make money by using the Internet as a way to spot (and thereby discourage) plagiarism. A teacher can submit a student paper, and Turnitin compares it to its huge database. This database includes text from Internet pages, text from commercial databases of journal articles and periodicals, and text from every student paper an educator has ever submitted.

A couple of high school students whose papers were archived by Turnitin are now suing the company for copyright infringement. This is dizzying enough just by itself, but it gets more dizzying. Look at this blog post discussing the case, and just try to sort out the different meanings of “copy,” “copyright,” and “plagiarism”:

http://www.seekersdigest.org/
students-sue-anti-plagiarism-site-for-copyright-infringement-download-squad.html

No, better yet, let’s do it together. Let’s look at the first three paragraphs.

First paragraph:

Got a term paper to write? No problem, just fire up the old Internet connection and copy some text from Wikipedia. Of course, in the good old days, you had to copy off of a neighbor or buy a copy of a paper some other student had written a few years ago.

The word “copy” appears three times. The first time it means “reproduce with the intent to plagiarize.” The second time, in the phrase “copy off of,” it means “plagiarize.” The third time it means “a reproduction made to facilitate plagiarism.”

Simply, copy = plagiarize.

Second paragraph:

Hoever [sic], modern technology means more than just new ways to cheat. It also means new ways to catch cheaters. A couple of years ago, many schools started turning to plagiarism checking software like Turnitin. The software includes a large database of documents, and when a paper is uploaded the program checks it against that database.

“New ways to cheat,” of course, refers to his use of the word “copy” in the first paragraph, filling out the nefarious connotation of the word “copy” just a little more.

“Plagiarism” in this paragraph means just what we expect it to, which is to say, just what “copy” meant in the first paragraph: “taking the writings of another and selling and/or publishing them as one’s own product.” (Definition from Dictionary.law.com. Have you ever checked out the etymology of “plagiarize,” by the way? It’s interesting: it comes from a root meaning to kidnap or to snare.)

On to the third paragraph:

But here’s the thing. It then adds that paper to the database for future reference. And it doesn’t ask your permission. So a couple of high school students decided to sue Turnitin for copyright violation.

This is getting very confusing! Turnitin makes money because teachers want students to stop copying, but Turnitin copies student papers! So if the copying that cheating students do is wrong, and the copying that Turnitin does is wrong, copyright violation must be just like plagiarism! Right?

Well, wrong. The muddy use of the word “copy” leads us astray.

“Copyright,” means simply the sole right of the creator of a work to say who can make reproductions of that work. The creator can sign this right over to someone else — for example, to a publisher. But copyright, in its central sense, doesn’t have anything to do with who gets credit for creating the work — it’s assumed that the creator of the work should always be credited (thus even when an author assigns copyright to a publisher, the publisher still puts the author’s name on the book).

Things are further confounded because our legal system is strange. See what dictionary.law.com says (bold emphasis mine):

plagiarism

n. taking the writings or literary concepts (a plot, characters, words) of another and selling and/or publishing them as one’s own product. Quotes which are brief or are acknowledged as quotes do not constitute plagiarism. The actual author can bring a lawsuit for appropriation of his/her work against the plagiarist and recover the profits. Normally plagiarism is not a crime, but it can be used as the basis of a fraud charge or copyright infringement if prior creation can be proved.

See also: copyright infringement

Since it’s difficult to sue for plagiarism, people often sue for copyright infringement instead. As in, “You took credit for having created my work, you dumb depraved hack, but I can’t sue you for that because our legal system is so twisted! So instead I’ll just sue you for having distributed my work without my permission, even though that’s really not the heart of the matter.”

Prognosis

So what does this all mean? It means that people fighting for copyright reform have an uphill battle, because they have to clarify our culture’s ambiguous use of language before we can all participate in the same nuanced discussion.

And while the list of failed campaigns for “No, Guys, Say It This Way!” is a long one (freedom fries, anyone?) our culture does change language use when there are enough people who are passionate about what the change signifies. The words we use to talk about minorities, for example, have changed as a result of civil rights activism.

Personally, I find myself a bit more vigilant about what I say to my students, and lucky for me, there is no shortage of teacher stock phrases. Instead of “don’t copy,” I’m pulling out the less-used but just as effective “keep your eyes on your own paper,” “do your own work,” and “no cheating.” The kids are understanding just fine.

QuestionCopyright.org doesn’t normally focus on economic issues, concentrating instead on the suppressive effects of today’s copyright regime on art and creativity. But sometimes a story is just too good to pass up… or in this case, the juxtaposition of two stories.

The first comes from Patrick Ross, executive director of the Copyright Alliance (a strongly pro-copyright group whose backers include the MPAA, NBC, News Corp, Disney, Time Warner, the Business Software Alliance, and Microsoft).

Ross wrote an editorial for news.com entitled “Fair use is not a consumer right”. His editorial was a response to Computer and Communications Industry Association (CCIA)’s recent complaint filed with the U.S. Federal Trade Commission (FTC), alleging that the copyright warnings shown before most movies and broadcasts are intimidating and inaccurate. Which they are, of course. In the words of the CCIA:

“These warnings intimidate average people and hinder free expression…They depict as illegal many legitimate and beneficial uses made possible by the high-tech industry, and cast a pall over the high-tech marketplace…These ubiquitous statements often include gross misrepresentations of federal law and characterize as unlawful acts that are explicitly permitted by law.”

Patrick Ross, not surprisingly, takes the position that the FTC shouldn’t “regulate free speech” — that is, that the FTC should not impose any limits on how misleading these notices can be. (One wonders if Ross objects to other laws or regulations that prevent false advertising and misleading statements, or if he only objects to them when they affect copyright holders.) Ross writes:

I don’t think we want copyright warnings to become a fair use public service announcement. No, these warnings do exactly what they’re meant to do — notify consumers in a succinct fashion that infringement has legal consequences.

This is odd, considering that a paragraph earlier he wrote:

So, how exactly would the FTC rewrite these copyright notices to reflect a consumer’s ability to attempt a fair use defense? Should they paste in all of the above language? We’re wading into the area of providing legal advice, and these examples aren’t sufficiently detailed for that. We could have an IP lawyer fold in a treatise on fair use, and baseball announcers could start reading it at the seventh-inning stretch to make sure they finish it before the end of the game.

Apparently, notifying consumers that infringement has legal consequences is not “wading into the area of providing legal advice”, but notifying them accurately of what might actually constitute infringment would be. We wouldn’t want to wade too far in, now, would we?

Meanwhile, the other story is the CCIA’s recent study, whose title is self-explanatory: Fair Use Economy Represents One-Sixth of U.S. GDP.

I haven’t closely examined the CCIA’s methodology, though they do claim the study was done in accordance with World Intellectual Property Organization methodological standards. Since any study on the uses of works of the mind is bound to be fraught with definitional questions, and since many other copyright-related studies start from bogus assumptions and/or questionable data, fairness (as well as intellectual honesty) demands that this this study be treated with the same suspicion. Nevertheless, the CCIA deserves praise for focusing attention on a useful point: that the creative re-use of existing works is an important activity, economically as well as artistically.

I only wish the CCIA hadn’t concluded their press release with the usual appeal to the sacred cow of balance: “The dependence of industries outside the high-tech field illustrates the crucial need for balanced copyright law.”. Of course, we all favor “balance”, but the question is, what is being balanced against what? For Patrick Ross and the Copyright Alliance, too often it’s that “the rights of creators” need to be balanced against (presumably) the right of the public to certain limited uses. But that’s not the kind of balance we should be looking for, as a society. The purpose of copyright is to benefit the public, period. If there is any balancing to be done, it is only as a means, not an end.

People sometimes translate pages on this site into other languages. Naturally, we encourage this, and you don’t even have to ask permission (because making derivative works shouldn’t require permission). But if you tell us about a translation you’ve done, we’ll link to it from the original article, and host it if you want.

Recently, Hua Jin made two new translations into Chinese, which gives us a nice excuse to highlight all the translations here. If you know of more, or are interested in doing some yourself, please tell us.

So far we’ve got:

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

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

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

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


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


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


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


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

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

McMillan ends with this zinger:

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

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

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

Portait of Rick Falkvinge

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

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

Videos of his talks are now available:

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

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

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

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

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

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

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

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

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

Author-Endorsed Mark

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


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

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

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

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

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

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


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

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

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

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

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

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

(Translations: 中文)

Portait of Jacob Tummon

Today the Vancouver Sun published an editorial by Jacob Tummon entitled “The Case for the Death of Copyright”. Tummon is already known to readers here for his in-depth piece on copyright at Legaltree.ca. While this editorial is necessarily shorter and less detailed than that earlier piece, it still makes a strong case. Tummon is a law school graduate, and he makes the excellent point that unenforceable laws inevitably lead to disrespect for the law itself: “Canada has experience with laws that engender widespread violation: Consider prohibition in the 1920s. A law violated so brazenly is more than meaningless — it undermines the effectiveness of the legal system generally.” Bravo to the Vancouver Sun for giving space to these ideas.

Here’s the full editorial, reprinted with Jacob Tummon’s permission…

The Case for the Death of Copyright

It has been said that intellectual property law has an unfortunate tendency to “disable critical thought.”

Nowhere is this more apparent than the reasons proffered for copyright in the Internet age, including the refrain that “copying is tantamount to stealing.” That flatly is not the case.

The morality, economics, and practicality of laws dealing with physical property do not hold for the intangible works covered by copyright. With finite physical property, scarcity is inescapable; with digital representations, scarcity does not apply. It is therefore not surprising that reasoning premised on this false analogy yields a law not in the best interests of content creators (“content creator” means artists, musicians, writers and so forth.)

The ostensible justification for copyright is that it provides attribution to the original creator and serves as an economic incentive for creators who can license the use of their work to make money, provided someone is willing to pay.

The latter point deserves careful scrutiny as the vast majority of creators do not earn meaningful incomes through copyright. Moreover, there are viable models for creators to earn income from their work which do not depend on copyright. Sponsorships, ticket sales, T-shirt sales and commissioned works are obvious longstanding examples.

Canadian musician Jane Siberry offers her music on her website using a “pay what you can” system, but a guideline shows the average price customers have paid per track. The result is an average price higher than what one would pay through iTunes. There are also similarly clever business models for novelists.

Embedding advertising or product placement within a TV show or movie is another viable means to pay for content. Budweiser produces its own TV-type shows on its website Bud.TV. Budweiser’s motive is worth noting for its prescient thinking: “If we don’t start playing in this digital game now we’re going to be playing catch-up for a long time. And this is an industry that can’t afford catch-up,” explained Tony Ponturo, Anheuser-Busch’s vice-president of global media and sports marketing.

Nor is proper attribution dependent on copyright. Tort law, through causes of actions like defamation and passing-off, could be wielded to prevent someone other than the original creator from claiming authorship, and also the original creator being credited with an altered version of the work. Incidentally, plagiarism in an academic setting is currently enforced independently of copyright.

Trademarks and patents are other areas of intellectual property that do not depend on copyright and would continue to exist in the absence of copyright.

That copyright isn’t needed for attribution or economic incentive is not the whole story. There is a body of work, in all areas covered by copyright, which requires the elimination of copyright to flourish. DJ’s making mixed tapes is a simple example.

Consider, with the means available through modern software, the splicing of video to say nothing of novels; a freeing from the constraints of copyright would invariably lead to an explosion of works being altered, transformed, improved, and ultimately morphed into new works.

The lack of such creative works is a not insignificant cost of copyright. This repressing effect can be damaging to the promotion of political and social expression and greater productivity.

Copyright was originally created as a means for government to exercise censorship after the advent of the movable type printing press. Given this origin it is not surprising that copyright is not intellectually coherent.

Stephen Breyer, now a judge on the U.S. Supreme Court, wrote as an academic in the 1970s on the weak case for copyright, asking why the work covered by copyright should be treated differently than other actions that produce value far beyond what they get remuneration for, i.e. the person who invents the supermarket, the person who clears a swamp, a schoolteacher.

The truth is that copyright has traditionally, and to this day, served primarily the publisher’s interest and not that of the creator or the public — it is not derived from natural justice.

Irrespective of moral and economic dimensions, the deathblow to copyright will likely come from the Internet itself. Due to the nature of the Internet, and anonymizing technologies in particular, the practicality of attempting to enforce a pre-internet copyright regime through the Internet is a road that we as a society should not go down.

Canada has experience with laws that engender widespread violation: Consider prohibition in the 1920s. A law violated so brazenly is more than meaningless — it undermines the effectiveness of the legal system generally.

Over time, the Internet will increasingly expose constraints on text, pictures, and videos for what they are — arbitrary and outmoded. In the meantime, it makes sense for Canada not to pass copyright laws that are more restrictive and invasive.

Jacob Tummon is a recent graduate of the University of British Columbia’s faculty of law.

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

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

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

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

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

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

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

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

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

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

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

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

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

There’s a famous phenomenon in copyright known as the orphan works problem. It refers to the situation in which the copyright owner of a given work cannot be found. This effectively prevents others from using such a work as part of a new project. For example, if you want to make a movie based on a novel, you must first get permission from the novel’s copyright holder. But if the novel is an orphan work, then you can’t even find the copyright holder. Technically speaking, you could proceed without permission — but you would do so at your own risk. The copyright owner could emerge at any time and demand penalties. You might end up having to pay damages; worse, you might have to abandon or censor your derivative work, no matter how much effort you’d put into it.

Related to the problem of orphan works is another problem, much more serious, yet much less discussed. I call it the ghost works problem. Ghost works are all the works that never get made in the first place, or are made but not released, because copyright concerns prevent them either from being started or from being distributed. Every project that dares not base itself on an orphan work becomes a ghost work, but there are many more ghost works beyond that. Indeed, it would be fair to say that today most works are ghost works. That is, most works either don’t exist or are not accessible, because copyright obstructs them. Whenever you walk into a bookstore, survey the shelves around you and imagine them to be 90% empty, for in a sense they are.

That might sound surprising. After all, the shelves look full, don’t they? To see why they are not, let’s start with an inverse example: a classic work that (fortunately) isn’t a ghost work, but easily could have been, had its authors lived under the modern copyright regime.

In April 2007, the singer Max Ziff and I gave a concert at the Berkeley Piano Club, in Berkeley, California. We performed one of the great works of nineteenth-century German song: Die Schöne Müllerin, Franz Schubert’s musical setting of twenty poems by Wilhelm Müller. Müller and Schubert were not a team, though. In fact, when Müller wrote the poems, around 1820, it was with the intention that an entirely different composer, Ludwig Berger, would set them to music, which Berger did. Müller and Schubert never met, and Müller apparently never even knew that Schubert too had set his poems to music.

Not that Schubert was trying to hide anything from Müller. It was simply that, at the time, there was no cultural expectation that one must ask permission before making a derivative work from someone else’s original work. Müller’s poems, having been published, were now considered part of the common culture, and if composers wanted to write songs based on them, they were free to do so. To our eternal benefit, Franz Schubert had this freedom: Die Schöne Müllerin is a truly inspired piece of music, one that has influenced generations of singers and composers.

Our concert thus depended on the public domain in two ways. One way is obvious: Die Schöne Müllerin is, legally, in the public domain today, so we are free to perform it without arranging royalty payments to anyone. But there is a deeper dependency, too: this music would not exist in the first place had there not been a healthy public domain at the time the poems were written.

Imagine if Müller and Schubert had lived in the present day, instead of the early nineteenth century. Müller writes his poems, intending for Ludwig Berger to set them to music; Berger does so. Then a mostly unknown composer, Franz Schubert, appears out of the blue, wishing to set them to his own music and asking Müller’s permission. But Müller can’t give permission — he doesn’t own the copyright anymore, his publisher does, and the publisher, not wishing to encourage competition with the Berger settings, is inclined to refuse. Perhaps Schubert could pay for the privilege? But no, he doesn’t have those kinds of resources. Or perhaps he’d like to negotiate a royalty-sharing arrangement? But Schubert has no lawyer, and no head for haggling over contracts. He’s a composer, not a negotiator. Well then, he is free to set the songs for his private enjoyment (that’s “fair use”) but he certainly may not distribute them!

In all likelihood, things wouldn’t even get that far, of course. Instead, Schubert would know in advance that he cannot always follow where his inspiration leads, when where it leads him is into someone else’s copyrighted territory. Instead, he would just accept that the work of most of his contemporaries is out-of-bounds for someone like him, an unknown with no resources. And so we would not have Die Schöne Müllerin… nor Die Winterreise (another of his song cycles), nor many of his individual songs, which often set the work of living poets.

And that’s just one composer.


This exercise in imagination highlights one of the most insidious aspects of the ghost works problem: that it cannot be easily measured, no matter how great its magnitude. We can point to an existing album, a movie, or a book and say “There! There is that thing, that physical object, whose existence is beyond doubt.” But how can we point to something that is not there? How can we know what we do not have? We can only measure the loss indirectly; nevertheless, there is compelling anecdotal evidence that it is large.

Some of this evidence comes from the world of free and open source software, where it is traditional not only that the software itself be released under open copyright licenses, but that the software’s documentation be similarly licensed. This means, among other things, that derivative works such as translations can be made by anyone. In theory, this could be done without permission or cooperation from the original authors, but in practice translations are almost always authorized and approved, because cooperation is easier than territorialism.

The result of this freedom is that the documentation for virtually all major open source programs, and many minor ones, has been translated into several languages, usually enough languages to cover the vast majority of the software’s user base. Furthermore, the translations are usually kept up-to-date as the software and its documentation evolve.

This phenomenon is not limited to technical documentation. In late 2005, I published a book entitled Producing Open Source Software: How to Run a Successful Free Software Project. The publisher, O’Reilly Media, although marketing the book through traditional trade and bookstore channels, agreed to release it under a permissive (open source) copyright. Accordingly, I put the book’s full text online at producingoss.com — and pretty soon people showed up to translate it! I did nothing to seek out translators, except release the book under a liberal license; only after the first translators showed up did I put a notice on the front page soliciting more. Now we’ve got a German translation under very active development (with two separate translators who only met through cooperating on this project), a Hebrew one happening somewhat more slowly, and some recent arrivals looking at doing a Chinese version.

This is happening with a book that has, let’s face it, a fairly limited audience. Not only that, it’s the second time this has happened to a book I’ve published (see cvsbook.red-bean.com). Once could be coincidence; twice is starting to look like a pattern. And I’m only using my own books as examples because they’re the first thing that came to mind. There are hundreds of open source projects that could tell a similar tale about their documentation. The lesson to draw here is that, were it not for copyright restrictions, most books in the world would be translated into several languages. After all, the better the book, the more some multilingual reader will be motivated to translate it. The translation doesn’t have to be perfect, because there will also be people who show up to edit it. These projects tend to self-organize in exactly the same way that open source software projects do.

But under the current copyright regime, if you want to release a translation of a book that was published under traditional restrictions, you don’t just sit down and start translating. Instead, you start by negotiating the right to translate — a process which is completely unrelated to actually translating, and is also daunting, time-consuming, and likely to fail. It’s hard to imagine a more potent gumption sink than “rights negotiation”. The mere prospect is enough to shut down most translation projects — which is why I look at those bookstore shelves and see them as mostly empty.

For those who leave rights negotiation for later, the penalties can be severe indeed. Recently, I opened the April 2nd, 2007 issue of the New Yorker to see the following notice from David Denby in the “Critic’s Notebook” section:

In 1977, Charles Burnett, a U.C.L.A. film student, made his thesis film, “Killer of Sheep,” a fictional portrait of life in the Watts section of Los Angeles, for less than ten thousand dollars. The film has attained legendary status, but it has never been released theatrically before, because of music-rights issues. Burnett used many kinds of African-American music on the soundtrack, and the movie itself has the bedraggled eloquence of an old blues record. […]

In other words, for thirty years — long past the time when its topics were contemporary, long past when it could have had the most impact and been most appreciated — a great film has languished unseen. For thirty years, Killer of Sheep was a ghost work. And to what end? Movie licensing royalties are probably not why those musicians recorded that music, and are in general not a significant part of most musicians’ incomes. That a few musicians occasionally hit the royalties jackpot is indisputable, but does that skewed and random result really justify the censoring of a film for three decades?


Now sensitized to the presence of ghost works all around us, I usually don’t need to go out of my way to find examples. Instead, I can depend on them finding me with some regularity. Such was the case here. While writing this article, I opened my New Yorker and saw the above piece. I could have chosen from several other examples that crossed my path in the last week — and those are just the stories that someone bothers to tell. This fact alone is a clue to the size of the problem.

If one person can gather a few examples of ghost works without even trying, many people working together can really start to catalogue the problem. Maybe after we have enough we’ll start to notice some patterns. So please keep your eyes open, and if a ghost work crosses your path, let us know. Our contact page is http://www.questioncopright.org/contact.