(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
• Introduction
• What is copyright?
• What is copyright not?
• A brief aside on computers and computer networks
• Why copyright is detrimental to society
  • Copyright enforcement necessarily entails monitoring of all computer communications, and therefore the destruction of online privacy
  • Copyright law criminalizes a large percentage of the population
  • Copyright law chills academic research
  • Copyright law’s reach already extends to many things, and is expanding with no end in sight
  • Copyright law creates a corporate information police, undermining accountability and due process
  • Copyright law erodes the public domain and free culture
  • Copyright law poses large economic costs to society
  • Copyright law prevents the Internet from fulfilling its promise
• Conclusion
• Responses
  • “But how will X make money?”
  • “Couldn’t we tweak copyright law?”
  • “Aren’t your complaints actually about DRM?”
  • “What about the advantages of copyright?”
  • “Is anyone actually advocating Deep Packet Inspection on the Internet, or is that just a straw man you set up?”
  • “Doesn’t copyleft depend on copyright?”
• References and Further Reading
• Acknowledgments
• License
• Version

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]

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

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

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