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Fixing Copyright

Laurence Garfield, Nathan Hampton, Jeromy Stark


"The Congress shall have power ... 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...."
--United States Constitution, Article 1, Section 8

Copyright protection promotes positive and necessary ends in our society, but recent changes
to the law have altered the implementation of this protection in ways that fail to serve its
constitutionally defined purpose. To ensure that these protections continue to benefit society,
we must:
● set reasonable lengths for the term of copyright protection,
● limit the transferability of copyrights,
● expand Fair Use exceptions to copyright restrictions,
● create a "dead work" exception, permitting non-commercial copying and distribution of
works which the copyright holder no longer feels are worth distributing commercially
(e.g., out of print books), and
● outlaw technological protection methods that exceed the control offered by copyright.
● Notes and Citations
● The Fallacy of Intellectual Property
The Importance of Copyright
With the advance of technology, our economy has become increasingly dependent on the
storage, transfer, and manipulation of information. As a result, issues relating to copyright are
taking on a greater importance. However, the same technological advances have made
violations of these protections much easier to achieve, sometimes to the point of requiring
only a trivial amount of effort.
These forces have created two competing viewpoints in our society. The first viewpoint is
typically associated with the creators and distributors of copyrighted works, and holds that the
relative simplicity of violating a copyright requires strengthening of copyright laws and
increasing the severity of punishments for such violations. Opposed to this is the idea that
technological advances have made the concept of copyright protection obsolete,
necessitating the abolishment of the legal structures which enforce those protections. The
battle between these views has become prominent in recent years, with both sides using
increasingly heated rhetoric to advance their viewpoint.
While the public debate regarding so-called "intellectual property" has become increasingly
polarized, there is a middle ground which can accommodate a variety of competing interests.
In these essays, we explore the nature of information, the rationale for copyright, and five
ways to ensure that copyright protection continues to serve both individuals and society.

Matter, Energy, Property, and Information


In the fundamental order of the universe, there is matter and there is energy. The homes in
which we live, the clothing we wear, and the food we eat are made of matter - "[s]omething
that occupies space and displays the properties of inertia and gravitation...." [1] Energy is not
as easily perceived, but it is also inextricably linked with our day-to-day existence. Electrical
energy powers lights, televisions, and other devices, and our bodies convert the food we eat
into the energy used to eat, drink, play, and work.
Despite the vast amount of matter and energy in the universe, that matter and energy are
finite resources. We can change the form of matter and energy and use that matter or energy
to serve our needs, but we cannot create or destroy matter and energy. We can even convert
matter to energy (and vice-versa), but the sum amount of matter and energy in the universe
remains the same.
Because matter and energy are finite resources, they are governed by what economists call
the Law of Scarcity. In layman's terms, the Law of Scarcity states that there is not enough for
everyone to have as much as they want of everything, so we give up one scarce resource in
exchange for another at various times. To facilitate this basic principle, most human societies
have developed a system of allotting scarce resources amongst the populace, which we
commonly call "property."
The concept of property is simple: if I have a hammer, you do not have that hammer. I cannot
wave a magic wand and turn one hammer into two and let you have one of them. If I give you
my hammer, then for as long as you have it I cannot drive nails with it. And if I own that
hammer, then I have, by law, complete and total control over whether or not I permit anyone
else to drive nails with it. It is entirely at my whim to decide how or even if it is used, because I
have physical control over it. If I surrender ownership of that hammer to you, however, then I
also give up any and all control over how and by whom that hammer may be used.
Consider, now, the concept of information: a particular pattern of matter and/or energy to
which a sentient being assigns a meaning. Like energy, information is intangible, though it
may be recorded in a tangible form. Unlike energy, however, information is infinite. If I have
some bit of information - the sky is blue, for example - I can share that information with you
without giving up anything that I have. In fact, I can share that information with everyone I
meet without diluting my own ability to use that information. As a result, the laws of scarcity
and property do not apply. They simply do not make sense, because information is, by it's
very nature, infinite. [2]

The Rationale for Copyright


The economic system in most Western nations is based primarily upon the Law of Scarcity -
that which is more scarce has a greater value than that which is less scarce. Because
information is non-scarce, the 'normal' laws of economics state that it has no value, a
statement which is patently false. Obviously, however, information does have value. The value
of information may be pragmatic or aesthetic, but in all cases, the value produced by that
information is maximized when it is available to as many people as possible. In an ideal world,
therefore, information would be created and shared without cost.
Unfortunately, there are two problems which prevent this ideal from being a reality. The
inherent value information has for society as a whole is significant, but the inherent value of
information to a specific individual is quite small. Because people are, by nature, self-
interested, this means that there is only minimal incentive to create information. Secondly, the
production of information consumes scarce resources. While some might produce information
solely for their personal satisfaction or out of a genuine sense of social benefit, their ability to
do so is limited both by laws of economics, which require them to earn an income, and by
laws of biology, which require them to eat.

What is Copyright?
To address these issues, Western nations developed two systems to encourage the creation
of information: patents and copyrights. Patents, which we will not address here, encourage
the development of materials which have a pragmatic benefit to society; the inventor is
temporarily given virtually unlimited authority to control who may and may not make use of
her invention, in order that he may exact economic rewards from people for its use as an
incentive for her to create the invention in the first place. In return, the invention enters the
public domain when that authority expires.
Copyrights are intended to provide an incentive for works which have an aesthetic value -
works which improve public discourse or enrich the culture. As with patents, the creator of a
work is, as an incentive, granted certain exclusive rights for a limited period of time during
which he may exact economic rewards deriving from the creation of that work. Unlike patents,
however, copyrights grant only limited authority and provide numerous exceptions (see below
for more details).

The Current Status of Copyright


The writers of the U.S. Constitution were aware of both the social benefits of information and
the need to provide specific incentives to encourage its production. As a result, Article I,
Section 8 reads (in part) "The Congress shall have power ... To promote the progress of
science [3] and useful arts, by securing for limited times to authors and inventors the
exclusive right to their respective writings and discoveries...." Congress has, over the years,
exercised this power a number of times. Provisions of current laws governing copyrights grant
the creator of a work the exclusive right
"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 audiovisual works; To display the copyrighted 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 audiovisual work; and In
the case of sound recordings, to perform the work publicly by means of a digital audio
transmission." [4]
Copyright protection commences "from the time the work is created in fixed form," and lasts
for the life of the author plus seventy years or, for anonymous works and works made for hire,
the shorter of 95 years from publication or 120 years from creation. Registration and copyright
notices are not required for protection, but provide additional legal protection against
violations of copyright. [4]
The first copyright law passed under the U.S. Constitution (1790) provided a fourteen year
term of copyright with the option to renew for an additional fourteen years. In 1831, the initial
term of copyright protection doubled, and the length of the renewal term was doubled in 1909,
bringing the total to 56 years. In 1976, a major overhaul of copyright legislation extended the
copyright term to the life of the author plus 50 years. Anonymous works and works-for-hire
were granted a term of 75 years from publication or 100 years from creation. These terms
were extended an additional twenty years in 1998. [5]
However, the current length of copyright protection exceeds the amount of time needed to
adequately "promote the progress of science and useful arts." In fact, the length of current
copyright terms is directly contrary to the achievement of the public benefit intended by the
Constitutional provision for copyright protection.
As we have previously seen, the purpose of copyright is to encourage the creation of new
works. The longer a copyright is in effect, the more time the creator will have to gain the
associated economic benefits, which would result in the creator deriving the maximum benefit
from his or her work, thus maximizing the incentive to create. Why, then, should we not
extend copyright terms as long as possible to ensure maximum incentive? We should not only
support the current term, but consider extending it further!
This argument is both logical and internally consistent. However, there is one problem. As the
old axiom goes, "dead men tell no tales." No known incentive (of any type) can motivate a
deceased person to create new work because, to the best of our knowledge, no deceased
person can create new work. As a result, any term of copyright protection that exceeds the
lifetime of a work's creator cannot, by definition, serve the fundamental purpose of copyright:
encouraging the creation of new work. Because this purpose cannot be met, any copyright
protection which exceeds the lifetime of the creator is inherently unreasonable, and will not
serve the Constitutionally defined purpose of copyright.
Furthermore, the argument cited above fails to recognize the underlying reason for copyright.
Again, it has been previously noted that works covered by copyright are valuable for their
benefit to society. As a result, copyright protection is defined as limited, both Constitutionally
and logically. If copyright protection is for an excessive term, the public benefit derived from
that work will be reduced, causing the copyright system to work against the benefit of society,
rather than for society's benefit, as it has always been its intent. [6]
Not only to the lengths of copyright terms fail the tests stated, the economic argument for
longer terms falls under close scrutiny. If a work no longer has economic value to its creator, it
cannot reasonably be argued that maintaining copyright protection for that work provides any
sort of incentive to its creator. To ensure maximum public benefit, a work should enter the
public domain as soon as possible, while providing maximum incentive indicates that this
should occur only after its economic value is lost. The immediate answer seems to be that an
individual work would enter the public domain on that occasion, but the administrative
requirements of (a) determining when the work no longer has economic value and (b)
determining if the work in which you are interested has entered the public domain make this
rule impractical. Rather, we should determine the approximate length for which copyrighted
works of a certain class retain their value, and base the length of copyright on that
information.
"Copyrightable works include the following categories:
1. literary works;
2. musical works, including any accompanying words;
3. dramatic works, including any accompanying music;
4. pantomimes and choreographic works;
5. pictorial, graphic, and sculptural works;
6. motion pictures and other audiovisual works;
7. sound recordings; [and]
8. architectural works." [4]
We propose adding an additional category for computer software, which is currently included
in the category 'literary works.' Computer software would be defined as "A series of abstract
instructions to be implemented by a computational device".
Unfortunately, the data on this matter is scarce. However, a 1998 report from the
Congressional Research Service "indicates that only about 2% of copyrights between 55 and
75 years old retain commercial value -- i.e., still generate royalties after that time." [6] Given
this research, and in the absence of further data, a non-renewable term of no more than 50
years, which shall not extend beyond the natural life of the creator, is a reasonable balance
between public interest and private incentive for most types of copyrightable works. However,
this number should be reconsidered if further studies demonstrate a shorter commercial life
span for some types of copyrighted works.
One example of this principle is computer software. According to the U.S. Copyright Office,
computer programs can be copyrighted. [4] However, a fifty year term is clearly unreasonable
because the high rate of advances in computing technology make most programs obsolete
within ten years of publication, with many becoming obsolete within five years. Keeping in
mind that derivative works can be copyrighted separately from the works from which they are
derived, we propose that computer software should be granted a five year term of protection,
which may be renewed by the copyright holder for an additional five years unless the work in
question falls under the terms of the dead work exception.
Given the concerns presented above, we believe that these proposed terms for copyright
protection are reasonable and consistent with both the underlying principles of copyright and
the legal framework of the U.S. Constitution.
Limit the Transferability of Copyrights
Imagine, a small company created a road. It set up a tollbooth and controlled who had access
to the road. People liked the road and were willing to pay the toll to travel on it. After a while,
the company created several more of these toll roads, and more people traveled on them.
One day, the company purchased somebody else's road and added it to it's own collection. As
the company grew, it created more roads and acquired even more. Eventually, it became a
transportation empire. People could no longer travel as freely as before. The company would
decide which roads were available to you, and how much you would pay to travel upon them.
Then these tollbooths were made permanent, so the roads would no longer become freely
available like their ancestors.
Essentially, this is how the copyright system has developed. Under present law, copyrights
are treated like personal property. They are subject to the normal laws of ownership and thus
can be bought, sold, transferred, inherited, and leased just like land. [14]
A number of corporations have taken advantage of this status to create what are often called
"copyright empires." Through aggressive competition and acquisitions, a relatively small
number of companies exert significant control of the distribution network for these works. For
the creator of a work to take advantage of his limited monopoly, distribution of the work is
necessary. The corporate empires controlling the distribution networks, however, insist that
the creator sign over his copyright to the company before allowing that author to utilize its
distribution network. As a result, the creator of a work is unable to control the use and
distribution of his work because it is, legally, no longer his to control; it is the property of the
corporation. The result has been a vast accumulation of "intellectual property" in the hands of
a few organizations, with creators retaining little or no right to control or profit from their work.
Not only have these corporations squeezed creators, they have also squeezed consumers.
By forming trade associations like the Recording Industry Association of America (better
known as the RIAA) and Motion Picture Association of America (MPAA), the 'empires' have
gained nearly monopolistic power over the market, complete with the price increases one
expects to see in that situation. This power has continued to increase, leading some to
describe the trade associations as "copyright cartels." The situation which has developed has
clearly defeated the central purpose of copyright: benefit to society.
However, there are changes that can be made to copyright laws to impair the feasibility of
such tactics. First, the aforementioned limits on the terms of copyright protection will limit the
length of time the distribution can be tightly controlled by incestuous oligarchies. Another is to
limit the transferability of copyright ownership. Rather than permitting copyrights to be bought
and sold, the creator of a work (or, in the case of works-for-hire, the employer) would be the
only person entitled to copyright protection. This would not, of course, prohibit the creator
from relinquishing his copyright, placing the work in the public domain, thus promoting the
public benefit.
Many creators prefer to leave the details of managing the production and marketing of their
work, in addition to monitoring for and litigating against copyright violations. Given the
potential size and complexity of these tasks in modern society, this preference is both
completely understandable and unquestionably reasonable. The prohibition against transfer
of copyright would not exclude such contractual relationships, nor would it prevent exclusivity
in such arrangements. However, the right of the creator to terminate such arrangements
would need to be protected by law to prevent a rather significant loophole.
By ensuring that copyright protection cannot be separated from the creator of a work, we will
guarantee that the incentives to create will go to those for whom it is intended: the creators.

Protecting Fair Use


Copyright grants to the author of a work exclusive rights to the distribution and duplication of
his copyrighted work. That right is established by the Constitution. However, the Constitution
also ensures to all people the right of free speech, that is, the spreading of information. It is
also understood that copyright is not an ends in itself; it is a means to an ends, those ends
being to promote the progress of science and the useful arts. As such, there are cases where
copyright should not apply. Judicial decisions over the years acknowledged this apparent
contradiction, and established the concept of "Fair Use".
Fair use was codified in 1976 in Section 107 of copyright law [10], which stated that
duplicating a copyrighted work "for the purposes such as criticism, comment, news reporting,
teaching, scholarship, or research" [10] does not infringe upon that copyright. For example,
criticism and comment often require reproducing a portion of the work in question, such as in
a book review or referencing a work for satire. Dissecting a work into its constituent parts,
which by necessity involves duplicating portions of it, is often necessary for research and
scholarship purposes, as well as for teaching others about how such works are created.
Section 107 provides certain guidelines for whether or not a use of copyrighted works is
infringing. Specifically, it provides guidelines for fair use that "shall include -
• the purpose and character of your use, including whether such use is of a commercial
nature or is for nonprofit education purpose;
• nature of the copyrighted work;
• the amount and substantiality of the portion used in relation to the copyrighted work as
a whole; and
• the effect of the use upon the potential market for or value of the copyrighted work."
[10]
It also established the concept of "First Sale". [11] That is, once the copyright holder has
provided a copy of his work to another, the receiver is free to transfer, sell, or grant that copy
to another without requiring the permission of the copyright holder. That is, the copyright
holder loses control over the non-duplicative use of the work after the "first sale". The active
used book and used album and CD industries thrive on the first sale doctrine.
There are other fair use rights established by copyright law. Section 117, for instance,
establishes that duplicating a work for personal backup and archival is considered fair use.
[12] That includes copying a copy of a computer program, in case the first copy is damaged or
destroyed.
Since the copyright act, the courts have established other fair use rights based on the
guidelines laid down by the copyright act in section 107. One such fair use right is that of
"time shifting". That allows a person to record and playback a copyrighted work ("shift" it to
another point in time) for personal consumption when it is more convenient. [13] The "record"
button on VCRs and personal video recorders such as the TiVo are explicitly legal for that
reason. Also related is the concept of "space shifting", that is, moving the work from one
location to another.
All of the aforementioned fair use rights have one common element: they do not significantly
reduce the commercial viability of the copyrighted work, and thus do not decrease the
copyright holder's incentive to create more works and thereby promote the progress of
science and the useful arts.
However, in recent years a disturbing trend has developed, especially in the digital realm but
in other fields as well. Some copyright holders have begun to force users to surrender their
fair use rights by means of license agreements or contracts. Others have begun implementing
so-called "Digital Rights Management" (DRM) systems, which control access to a work and
technologically prevent the exercise of fair use rights.
Such license agreements, sometimes referred to as "shrink-wrap" or "click-wrap" licenses
(since they are generally used on commercial software that is sold in shrink wrapped boxes,
and the license agreement is tacitly accepted by clicking on an "accept" button during
program installation), often require the user to give up certain fair use rights in order to use
the covered work. Typically, the agreement is only available after the user has purchased the
work, and if he decides for whatever reason to reject the agreement returning it is often
difficult if not impossible. Most stores have no-return policies on opened software, and there is
no way for the purchaser to see the agreement without opening the software.
These "agreements" are sometimes innocuous, but other times require the user to give up
various fair use right or limit the ways in which the user may use or dispose of the work
beyond the limits imposed by copyright. For example, recent versions of the Microsoft
development tools include a license agreement that forbids the user from writing software that
competes with certain Microsoft products. Other licenses from a growing number of software
companies require the user to grant the copyright holder the ability to remotely monitor the
usage of the copyrighted work, and even modify the configuration of the user's computer
without warning. Others limit transferability of the work, violating first sale.
While the fair use rights still technically exist, the receiver of the work is, under such license
agreements, required to surrender some of those rights. The concept of requiring someone to
contractually surrender a right is itself a questionable practice at best, but even more so when
it is a question of abuse of monopoly power. (Recall that all copyrights are a government
granted monopoly.) It is even more questionable when the stated purpose of the monopoly is
to "promote the progress of science and the useful arts." Fair use rights, by definition, are
those that do not impede the progress of science and the useful arts. Restricting them goes
against the stated purposed of copyrights in the Constitution.
There is also the larger problem that such license agreements effectively circumvent federal
law. Copyright law provides for various fair use rights, but if they must be contractually
surrendered in order for a person to even gain access to a copyrighted work, the the law
becomes impotent.
Therefore, copyright law should be amended to include a statement to the following effect:
No party who has legally received a copy of a copyrighted work may be compelled to
surrender any rights or rights of usage under the provisions of Title 17 of the U.S. Code (or
any successor statute), including fair use, by means of contract, license, or other legal
agreement.

Immortality Upon Death


The claimed purpose of copyright is to encourage the progress of science and the useful arts
[7]. To that end, artists and authors are granted provisional monopolies on the distribution of
their creations, so that they may exact financial benefit from those that receive it. That is, it
creates an artificial environment in which one can "sell" information.
The system itself is reasonably sound. By inducing a market for information before it falls to
the public domain, it creates an environment in which authors are able to profit from the
distribution of their work, and thereby encourages them to create more information so that
they may gain greater profit.
However, there is a point at which the cost of distribution becomes too great compared to the
likely financial benefit. There could be many reasons for a market to "dry up" in that fashion.
The market could be saturated, that is, the demand for copies of the work has fallen as most
of those who wish copies have one. (Information, it should be remembered, is not a
consumable good.) It could be that the cost of producing the media upon which the work is
affixed has increased. In either case, the work has ceased to be financially valuable to the
copyright holder. Or it could be that the copyright holder, for whatever reason, has simply
decided he does not wish to continue to distribute the work. Whether it be due to a decrease
in marginal benefit, an increase in marginal cost, or a change of heart of the copyright holder,
copyrighted works often cease to be available through official channels prior to the expiration
of the copyright term.
The terminology for such a condition varies with the type of work. For books and movies, the
work is said to be "out of print." In software, such programs are often referred to as
"abandonware." Whatever the market, such works can be collectively considered "dead,"
because their copyright holder has decided to terminate their authorized distribution.
We can therefore define a "dead work" to be any copyrighted work for which the copyright
holder has, for whatever reason, chosen to completely or effectively cease the authorized for-
profit distribution of the work reserved to him by the copyright act after having done so for
some period of time.
Dead works are in fact quite common, especially with the century-plus term of modern
copyrights. Using the willingness of the copyright holder to publish the work for profit as a
standard of value, less than two percent of the copyrighted work from the mid to late 1920s,
the oldest works covered by modern copyright, still has "value." [6]. The other 98% of the
work protected under copyright has been declared valueless to the copyright holder, by virtue
of his unwillingness to exact profit from it. While the percentage of work still available through
commercial channels is likely higher for more recent works, there is still a substantial portion
of copyrighted work that is simply not available through any legal means.
However, just because a given work may not have direct financial benefit to its copyright
holder by means of distribution does not mean that the work itself is entirely valueless. An
integral part of copyright is that works eventually become part of the public domain, because it
is understood that works in the public domain have a value to the entire society. That value is
multifaceted. It can serve as a historical and cultural archive of the society and its history. It
can serve as the inspiration for the creation of new works (including "derivative works"). It can
be made available to those who would not have access to it otherwise due to cost restrictions
(recalling that the underlying assumption of copyright is that "more information is a good
thing," and the more people have information the more good a thing it is). In any case, while a
work may be considered "dead," it does not necessarily follow that the work is valueless.
So works that are still under copyright but which the copyright holder has chosen for financial
reasons to no longer distribute are of greater value and better promote the progress of
science and the useful arts if unrestricted.
There are other reasons why a work may become a dead work beyond decreasing returns.
The author may simply wish for whatever reason to keep such information from public
knowledge. A large quantity of copyrighted information from the late 1930s and 1940s is still
protected under copyright, yet is not publicly available. Most of these works are copyrighted
by large movie studios (including Disney and TimeWarner), and was produced in the United
States during World War II as pro-war propaganda films. Such works include both live action
and animated works, short and long, that are by today's standards highly racist and offensive,
especially towards individuals of Asian descent. [15]
The copyright holders of said works have opted to keep said works sealed and not re-release
them in more modern formats, or even in older formats, because to associate the Warner
Brothers name and brand image with a children's cartoon entitled "Bugs Bunny Nips the Nips"
(an actual title of one of the few such works that is available) could be quite controversial and
damaging to the company's chosen corporate image. [15] Many such works are stored on
older celluloid technology, and the film itself is quite literally rotting away in vaults. Given
current copyright lengths, and the habitual extension thereof by Congress in recent decades,
by the time said works are available in the public domain there will literally be no work left.
However, the question must be asked if such use of copyright protection does indeed
"promote the progress of science and the useful arts," and if not, what the cost is to the
society and the public domain for such works to be extinguished.
First, the progress of information and innovation is aided by the flow of information. Virtually
all creative or scientific works are to some degree based on previous creative or scientific
works. A reduction in the amount of information that can be used to create new works,
whether through for-profit or public domain means, is, therefore, detrimental to the progress of
science and the useful arts.
Second, the purpose of having copyright be limited term is to ensure that there is a rich public
domain, once the copyright has expired. If the work ceases to exist, then it does not fall into
the public domain, and the public domain is thus reduced. Additionally, while works such as
those cited above may be embarrassing to one company, they are still a part (pleasant or no)
of the society's cultural history and heritage and for them to be lost is a disservice to both the
society and future historians.
So works that are still under copyright but which the copyright holder has chosen for non-
financial reasons to no longer distribute are of greater value and better promote the progress
of science and the useful arts if unrestricted.
In both the financially-based and non-financially-based cases, the copyright holder has
chosen to not exercise his exclusive distribution rights granted by copyright. Therefore, he is
deriving no profit from it, and therefore no incentive to create additional works. For others to
distribute the work, then, in no way reduces the copyright holder's potential or actual
recompense from the works, as the recompense is already zero by virtue of the copyright
holder's own actions. However, as previously shown, there is a benefit to society and to the
progress of the sciences and useful arts by allowing said works to be distributed.
Thus, we can see that a dead work, as previously defined, does not promote the progress of
science and the useful arts by remaining under exclusive restriction but does promote the
progress of science and the useful arts by ceasing to be under exclusive restriction.
Therefore, the copyright system, if it is indeed to serve the purpose of promoting the progress
of science and the useful arts, must allow for that circumstance.
To that end, copyright should be amended to include a "use it or lose it" clause. Such a clause
would establish the following conditions:
If the copyright holder of a work, having distributed said work to receiving parties, choses for
whatever reason to cease distribution of said work to any parties for X period of time, all
parties having already received said work shall not be restricted from redistributing for non-
commercial purposes to any other party in any form, including as derivative works, and all
parties receiving the work in such a manner shall similarly not be restricted. Should the
copyright holder cease to distribute said work to any parties for Y period of time, all parties
having already received said work shall not be restricted in any way whatsoever from
redistributing the work to any other party in any form, including derivative works.
The purpose of the non-commercial restriction in the first sentence is to account for the fact
that dead works are sometimes "resurrected," and brought back into circulation for
commercial purposes by the copyright holder. There are many possible reasons for such a
change, including market forces, new distribution mechanisms, and so forth. Whatever the
reason, it is beneficial to the copyright holder to be able to take advantage of new
circumstances. However, such circumstances are not always forthcoming, and in such a case
the public domain should not be deprived of the work that the author has deemed not worth
distributing himself, thus the two-stage time period.
Naturally there are details that must be considered in greater depth before such a policy can
be implemented, specifically the precise terms of time periods X and Y, and exactly what
actions or inactions should qualify as "cease distribution." The former is dependent on the
length of copyright's term, and is beyond the scope of this document. The latter is dependent
on the type of copyrighted work. On that, only a few words will be included here.
Some copyrighted works are distributed in their "editable" form. That is, the work as
distributed is already in the format best suited to redistribution and the creation of derivative
works. The standard example is books and other texts, where the words are both the
"editable" and "readable" format.
Other works are distributed in a "non-editable" form. That is, the editable form of the work
used for its creation is necessarily converted into another "use" form prior to distribution. The
best example would be software, which is typically "compiled" from source code into
computer code. The source code form is clearly the form intended for editing, while the
computer code version is, in most cases, extremely difficult if not impossible to reliably
decipher back into an editable form.
In the case of works where the editable and use forms are the same, there is no difficulty. In
the case of works where the editable and use forms are not the same, however, there exists a
problem because the use form is generally the only form distributed by the copyright holder,
but the editable form is the one required for the creation of derivative works, which would be
permitted by the above amendments to copyright.
However, the same problem exists with works that expire normally into the public domain.
When a work that has been distributed only in use form and not in editable form enters the
public domain, it is still essentially useless without the editable form. The copyright holder is
then, under current law, under no obligation to release the editable form of the work, thus
keeping the work out of the public domain in perpetuity in any practical sense. That problem
exists regardless of whether the work has become part of the public domain due to the
expiration of the copyright term or due to the proposed changes above.
There are multiple possible solutions to the problem. Firstly, distribution of a copyrighted work
could require the inclusion of the editable form, if the editable form should be different than
the use form. Secondly, once a work has been declared "dead" the copyright holder could be
compelled to release the editable form upon request. Thirdly, the copyright holder could be
compelled to deposit a copy of the editable form of the work with an escrow agent, most likely
the copyright office, in order to receive a copyright for said work, and the escrow agent would
then issue copies of the editable form upon request.
The first method, while implementable and in fact the most consistent with other types of
works, would meet with considerable resistance. The second method is impractical, as it
requires the copyright holder to maintain a copy of the editable form of the work and a system
for providing it upon request, even after the copyright holder has made it clear that the work is
without value to him, or after the work has passed into the public domain and there is no
copyright holder in the first place.
The third method, that of deposit with the copyright office, is in fact the system used from the
inception of copyright in the United States through the Copyright Act of 1976. That act, for the
first time, established "automatic copyright" on works and removed the requirement for the
registration of a work in order to receive copyright protection. That policy is inconsistent and
unmaintainable, not only with these proposed alterations to copyright but with the very nature
of any work that has different editable and use forms and will someday pass into the public
domain. In order to implement the proposed changes, as well as to protect the public domain
even under the present system, that change should be reversed, and both registration and
deposit of copyrighted works must be required of potential copyright holders.

Digital Public Domain Management


One of the underlying principles of copyright is that, after the term of copyright has expired,
the work in question enters the public domain. A work in the public domain is free for anyone
to access and use without restriction, because it is "unowned." The former copyright holder
has no right or permission to in any way restrict the access, distribution, or use of the work in
question after it has entered the public domain.
That system is a good one, in that it acknowledges that information has value to the public
when it is unrestricted, even if its value as a pseudo-product to the copyright holder has
diminished. However, it relies on a number of assumptions that have, in recent years, begun
to change for both technical and political reasons. Copyright law must be amended, not to
encourage those changes, but to ensure that the fundamental system and protections of
copyright remain intact despite them.
The first issue is technological. New forms of creative work have come into existence in
recent decades that have the unique property of having not one but two forms; an "editable"
form and a "use" form. The best example of such a work is computer software, which is
written and edited as source code, then compiled into a human-unreadable binary "use" form.
In the majority of cases, the use form of such a work is effectively useless for creating
derivative works. However, typically only the use form is distributed commercially when the
work is still under copyright. The editable form is rarely made available. [see also Immortality
Upon Death]
The other issue is more political than technological. In the past decade, more and more
information has become available primarily or exclusively in digital form. Digital form offers a
number of advantages for copyright holders over analog distribution mechanisms, among
them reduced cost of distribution and the potential for non-linear features, such as the
"special features" collections on many DVD movies. However, it is often argued that digital
copies of works also make more feasible mass copyright violation, as duplicating and
redistributing digital works is trivial compared to analog works.
Many companies have recently begun new practices to counteract the nature of digital works.
Under the inaccurate but market-friendly names of "Digital Rights Management" (DRM) and
"Trusted Computing," some copyright holding companies have begun to encrypt the use form
of their works prior to distribution using a private-key system. The company then holds
exclusive access over the decryption key, which it licenses as a trade secret to selected
partners to build "closed box" decryption devices in order to access and play back the work
so-encrypted. Those closed box decryption devices then have limited features, which do not
allow the user to perform certain functions that would, in the eyes of the company holding
access to the decryption key, be beneficial to copyright violation.
Many of these systems are in fact rather trivial, and in practice any private-key encryption
mechanism will be broken sooner or later; history indicates that it generally happens sooner
rather than later. Understanding that fact, such copyright holding companies pushed for and
received a new law in the United States in 1998, known as the Digital Millennium Copyright
Act (DMCA). The DMCA, among other things, makes it a federal felony to break such an
encryption system to gain access to the work in a manner not authorized by the copyright
holder. The purported intent is to make the illegal mass-distribution of copyrighted works
difficult or impossible, and thus preserve the copyright holder's provisional artificial monopoly.
There are many problems with DRM and the DMCA, however. The DMCA creates for the first
time the concept of "access rights," which have no fair use exemptions. Thus, a company or
copyright holder may require a receiver of a copyrighted work to agree to certain terms to gain
access to the work in the first place, terms that effectively restrict fair use, even though once
the receiver has obtained access he technically would have said fair use rights. To gain
access to the work by any other means, thus "breaking" the DRM encryption system, is a
felony. [8]
As a non-digital example for clarification, suppose that a company chose to publish a paper
book, but on every page included additional text in red transposed over the text of the book,
making it unreadable. In order to read ("access") the work itself, the reader must use a strip of
red cellophane that, when held over the page, blanks out the red words and makes the page
readable. However, only the book publisher may authorize others to make or sell red
cellophane strips, and in order to obtain a red cellophane strip the reader must contractually
agree to, for instance, not read the book aloud to others. While it would work just as well to
use a red highlighter on the paper, which would similarly "decrypt" the text on the page, that is
considered circumventing the access control mechanism (the red overlay text), and is under
the DMCA illegal.
Additionally, such measures do not address wide-scale copyright infringement, their purported
goal. Mass illegal duplication and redistribution of the work does not, in fact, require
decrypting it. Simply duplicating and redistributing the encrypted form is just as effective for a
would-be copyright violator. (In the analogy above, that would be making a color photocopy of
the book and then reselling the photocopied pages. The work was never decrypted, yet
copyright is still being violated.)
There are other problems with such access-control mechanisms; they do not expire. All
copyrighted works are intended to eventually enter the public domain. However, when the
distributed form of a copyrighted work is encrypted, and the encryption mechanism is not
public but only available via a contractual purchase, then the technical status of the work in
the public domain is irrelevant; it is still not publicly available and accessible, even by those
who received it while it was still protected under copyright.
Too, it must be understood that technological standards, given sufficient time, become a form
of law themselves. Since all technological systems are at the whim of the designer of said
system, it means that the designer of a technological system may in essence establish de
facto laws independent of the legislative process. In most cases, the designers of a
technological system are private parties, not the government. Thus, by creating an access
control system for digital information, a copyright holder may in a sense create his own laws
that override copyright law and its accompanying fair use rights. If those access control
systems are given blanket-endorsement by the government, as the DMCA does, then
copyright holders are given carte blanche to circumvent copyright law by making it illegal to
access a given work, irrespective of the infringement or lack thereof in the intended use. [9]
We then run into two problems. First, DRM effectively results in restrictions to fair use, which
is unacceptable. Second, it prevents a work from ever completely falling into the public
domain. As the end goal of copyright is to enrich the public domain (by providing authors with
a financial incentive to create more works that will eventually enter the public domain), DRM
is then directly contradictory to the goal of copyright; that is, to promote the progress of
science and the useful arts.
To preserve the integrity of the copyright system and the public domain, therefore, we must
ensure that such "loopholes" created by digital technology cannot be exploited.
However, it must also be acknowledged and understood that encryption itself is not the
problem. Encryption technology has a wide variety of valid, constructive uses that do not
contradict the constitutional purpose of copyright, nor are in any way related to it, and those
should not be in any way impeded.
As with other technologies, it is not encryption technology itself that is problematic but certain
uses of it. Thus, to properly protect the constitutional mandate of copyright and the public
domain, it is specific uses of encryption that should be explicitly restricted. Specifically,
It shall be illegal to use technological means, including encryption, to interfere with the ability
of any individual who has legally received a copy of a copyrighted work to utilize that copy in
accordance with the provisions of copyright law, including fair use.
Although not explicitly stated in the above, it still has the necessary effect of ensuring that a
work, once its copyright term has expired, can easily enter the public domain, as there are no
restrictions in place to keep it from doing so.
Although some may argue that such a restriction result in an increase in copyright violation, it
must be recalled that decryption is not in fact necessary for copyright violation to occur. Such
access control systems as described and banned above do not deter copyright violation, but
merely create a new class of criminal offenses that cannot be justified under the Constitution's
mandate to "promote the progress of science and the useful arts." [7]

Notes and Citations


1. Webster's II New Riverside Dictionary. Berkley Books, 1984.
2. Much of this discussion is based upon Laurence Garfield's essay "The Fallacy of
Intellectual Property," which has been quoted liberally without attribution by permission
of the author.
3. The term "science" is understood to have been used by the Framers of the Constitution
in a more general sense than the term enjoys in current usage. An appropriate
definition is "learning or knowledge" according to Edward Walterschield (cited in 6).
4. "Copyright Basics." Circular 1, U.S. Copyright Office.
http://www.copyright.gov/circs/circ1.html
5. "United States Copyright Office: A Brief History and Overview." Circular 1a, U.S.
Copyright Office. http://www.copyright.gov/circs/circ1a.html
6. Eldred v. Ashcroft, 537 U. S. 186 (2003) (Breyer, J., dissenting). Available at
http://www.copyright.gov/pr/eldred.html
7. People of the United States, We The. Constitution for the United States of America.
1787.
8. "The Digital Millenium Copyright Act of 1998: U.S. Copyright Office Summary."
http://www.copyright.gov/legislation/dmca.pdf
9. Lessig, Lawrence. "Fair Use Infrastructure." Harvard Law Journal, vol 15, page 50
(2001).
10.17 U.S. Code Sec. 107. 2004. See http://www.copyright.gov/title17/.
11.17 U.S. Code Sec. 109. 2004. See http://www.copyright.gov/title17/.
12.17 U.S. Code Sec. 117. 2004. See http://www.copyright.gov/title17/.
13.Sony Corp. of America v. Universal City Studios, Inc., 464 U. S. 417,429 (1984)
14.17 U.S. Code Sec. 201. 2004. See http://www.copyright.gov/title17/.
15.Straight Dope. "Did Bugs Bunny appear in a racist cartoon during World War II?" Staff
Report, 05 February 2002. Referenced 26 February 2004.
http://www.straightdope.com/mailbag/mbannedbugs.html

The Fallacy of Intellectual Property


By Laurence Garfield
larry@garfieldtech.com
Originally published December 2002

In the fundamental order of the universe, there is matter and there is energy. The sum total of
matter and energy in the universe is finite. It cannot be created nor destroyed, and it cannot
even be converted from one to the other outside of a nuclear reaction.
Then there is "information", which is some pattern of matter and/or energy to which a sentient
being (humans) assigns a meaning. Information can be duplicated without destroying the
original, simply by copying the pattern itself into a new set of matter or energy. Additional
information has thus been "created", and the sum total of the information in the universe has
increased with no decrease in any other quantity of information, matter, or energy. Therefore,
information is not the same thing, fundamentally, as matter or energy.
Now, information must be stored in some medium, which is composed of matter or energy,
but it is distinct from the medium itself. A CD is a physical piece of hardware. It is matter. It is
finite. The program stored on the CD is software. It is information. It is technically infinite. The
human brain itself is a medium, perhaps the most complex medium ever created, designed
for storing potentially infinite quantities of information. The information itself is distinct from the
medium.
Because matter is a finite resource, it is governed by what economists call the Law of
Scarcity. In layman's terms, there is not enough for everyone, so people are willing to give up
one scarce item in exchange for another scarce item at various times. To address matter as a
finite resource, most human societies have developed a system of allotting finite resources
amongst the populace called "property". (I cannot think of any non-hunter/gatherer societies
that have not developed a property concept of some sort.) That is, all matter is assigned an
owner and that owner and no other is allowed to make use of it or control its use by others as
he sees fit. The owner may voluntarily surrender ownership of the matter to another person,
but the matter is then still owned. Taking matter that is owned by someone else without the
permission of the owner is termed "stealing", and one who does so is termed a "thief."
Energy, until the Industrial Revolution began about 2 centuries ago (and is continuing as we
speak), consisted almost entirely of labor and manpower, and was thus expended at the will
of the man to do whatever work he chose to do. Animals were also given the title of
"property", and therefore the person who owned the animal owned their work. (And in
societies that endorsed slavery, the slave was filed in the same category as the animal.) Once
the energy (labor) had been expended, the work had been done, and some change to matter
had been made, and that was that.
Now, an important point about the ownership of matter is that it is not finite. Matter, in
societies that make use of the property concept of economic allotment, is always owned by
someone. When the owner dies, ownership passes to another person by some means
determined by law. Even so-called "public property" is owned by someone, namely the
government, which is in theory the arm and will of the people. It may be "communally owned",
but it is still owned. And that matter cannot be duplicated. I cannot wave a magic wand and
turn one hammer into two and let you have one of them. If I give you my hammer, then for as
long as you have it I cannot drive nails with it. And if I own that hammer, then I have, by law,
complete and total control over whether or not I permit anyone else to drive nails with it. It is
entirely at my whim to decide how or even if it is used, because I have physical control over it.
If I surrender ownership of that hammer to you, however, then I also give up any and all
control over how and by whom that hammer may be used.
Now, consider for a moment information. As information is not matter, it does not answer to
the economic law of scarcity. The medium upon which it is stored does, but the information
itself does not. If information is non-scarce, then the laws of property do not apply to it. Let me
state that again, just to make certain that it is understood.
Information is by nature non-scarce, therefore laws of scarcity and property do not apply.
They simply do not make sense.
But if information is not scarce, then the economic laws that would give it value do not apply,
and information has no exchange value. Naturally, information does have a value to society.
Specifically, it has two distinct advantages. One is pragmatic, in that the creation of new
information tends towards the material benefit of society through the creation of new
discoveries of what IS, and through the invention of new material constructs that aid in doing
work. The other is aesthetic, in that the creation of new information tends towards the cultural
and emotional benefit of society through the creation of new public discourse and the
enrichment of the cultural fabric and heritage.
Both of those advantages are maximized when the information is available to as many people
as possible. The more people may take advantage of a new, more efficient means of doing
work, the more work can be done, and everyone benefits. The more people have access to
new cultural works, the more the culture of each individual is enriched, and thereby the entire
society benefits. The more people have access to public discourse, and can respond in kind,
the richer the discourse becomes and the society as a whole benefits.
When information is available to all, it is said to be in the "public domain". Unlike "public
property", which is still owned and can only be used by a limited number of people at once,
information that is in the public domain is not under the control of anyone, and the number of
people who may make use of it simultaneously is limited only by the population of the world at
any given time.
Unfortunately, humans on the whole do not generally think in terms of cultural enrichment and
societal benefit. Man is a political animal, but he is also a self-interested animal. While the
benefit to the entire society is great, the benefit to the individual is not considerable, certainly
not when the individual could spend his time and labor on other tasks that have more
immediate, physical benefits. There are some ("true artists") who would create new
information nonetheless, either for personal enjoyment or a genuine sense of social benefit,
but they are in the minority and even they are limited by laws of economics that require them
to earn an income, and by the laws of biology that require them to eat.
In order to encourage the creation of new information, Western European societies developed
two distinct systems of encouragement; patents and copyrights. Note that these are both
distinct from the property system described earlier, and that they are distinct from each other.
That is an extremely important distinction, and one that is oft forgotten.
Patents address the first advantage of information, that of material, pragmatic benefit. The
concept behind a patent is to grant, temporarily, an artificial monopoly on the use of some
new invention to the inventor. (Discoveries of pre-existing facts about the universe as it
already exists are excluded.) That is, the inventor is temporarily given the authority to control
who may and may not make use of his invention, in order that he may exact economic
rewards from people for its use as an incentive for him to create the invention in the first
place. In return, after some period of time, the invention becomes part of the public domain,
the public commons. Note that the information may still be used simultaneously by a
theoretically infinite number of people, subject to the permission of the patent holder.
Copyright addresses the second advantage of information, that of cultural enrichment and
improved public discourse. The concept behind copyright is to grant, temporarily, to the
creator ("artist") the right to control the duplication for profit of the work, excepting Fair Use.
Note here that copyright does not give the holder as many provisional rights or as tight a
control as patents do. The goal again is to provide an economic incentive for the creator to
create, as they are given a limited period of time during which to exact an economic return
from recipients of the information he has created. After that limited period of time, the work
also enters the public domain for the enrichment of the society at large.
However, there are exceptions made to copyright restrictions, known as Fair Use. These are
uses of duplication of the content that are deemed to not reduce the creator's economic
incentive to create, but that do have a benefit to society as a whole. Examples of Fair Use
include personal backup, in case the original is destroyed; excerpting for critical review or
academic analysis; referencing for parody and satire; "space shifting", that is, moving the
work from one location to another; "time shifting", that is, delaying the work so that you can
make use of it at a later time. (The Sony Betamax case in the early 1980s established this
one quite firmly, stating that VCRs that allowed people to record a TV broadcast to watch at a
more convenient time is legal under Fair Use doctrine); conversion for personal use
(recording from a Betamax tape to VHS tape, recording from LP to audio cassette, ripping
from CD to mp3 or Ogg Vorbis on a PC, etc.).
None of the above uses appreciably reduce the incentive to the creator to create. There is, in
fact, one key element to many of them: personal use. Once I have purchased the use of the
information myself, I am free to use it for myself and do what I wish with it, for myself. I can
make multiple copies of it legally, provided that those copies are for myself.
When someone makes use of an invention or work that is covered by patent or copyright,
respectively, without the authorization of the patent or copyright holder, they are in violation of
the law. Note that they have not "stolen" anything. The patent or copyright holder still has his
original copy of the work. He still has his provisionally granted limited monopoly on it. He still
has his authority to authorize others to make use of it. He has lost nothing. The person who
has violated the copyright has committed a crime, and the crime is not in dispute. It is a crime
of patent or copyright violation. However, it is a crime with no direct victim. No one has been
deprived of any property.
"But they are stealing my income!"
One cannot take from you what you do not have. Coca-Cola produces a carbonated beverage
that many people drink. They expect to make a profit by doing so. When Pepsi sells a
competing carbonated beverage, many people buy that instead of Coca-Cola's offering, and
Coca-Cola's profits go down. That is called competition. Pepsi has stolen nothing from Coca-
Cola. Pepsi has not stolen Coca-Cola's customers, as Coca-Cola did not "own" those
customers in the first place. They were not entitled to them, or to their money, or to their
business.
Patents and copyright are a reduction of competition, a restriction on trade, intended to
guarantee to inventors and artists, for a limited time, the opportunity to try and make a profit,
and thereby encourage them to produce more information. It does not guarantee that they will
make a profit, it guarantees them a period of time in which they will be protected from
competition by means of a monopoly (which is otherwise horribly destructive to an economy)
so that they may try to make a profit. They do not have that profit guaranteed to them. They
do not have it, and therefore it cannot be stolen from them.
That is (in part) why the term "intellectual property" is so ridiculous. It implies property that
happens to be of an intellectual type. That is not the case, because as we have shown above
information is not the same thing as property, and is, in fact, governed by different laws. A
more accurate term would be "proprietary information", that is, information that through smoke
and mirrors we pretend is kinda-sorta-like a pseudo-property for a short period of time in order
to encourage people to create it. After that period of time, whether they have made a profit or
not, their monopoly is lost and the information returns to its natural state: Free and in the
public domain.
Why am I making such a big deal out of such a simple grammatical point? Because the
definition of information is the heart of the very issue. To call copyright violation "theft" is to
call walking across a street against the light "speeding". It is simply inaccurate. It is still illegal,
but not for the same reason in any way shape or form.
Nothing in the above says that it is not illegal to take a work that is still under copyright,
duplicate it a hundred times, and distribute it (free or for profit) without the permission of the
copyright holder. Yes, it is illegal. But it is not theft, and the perpetrators of the crime in
question are not thieves.
What does it matter? Because to think of information as being property when it fundamentally
isn't leads one to make the wrong arguments, and to be more susceptible to those who really
wish that information were property, while they know full well that it is not, because it allows
them greater public justification for the extortion of the public and the locking-up of our
national and cultural heritage. I speak, of course, of the "copyright cartels". These include
primarily the Recording Industry Association of America (RIAA) and Motion Picture
Association of America (MPAA). Both organizations are technically illegal under certain
interpretations of the Sherman Anti-Trust act as anti-competitive collusion (that is, a cartel),
but remain in existence for political reasons.
Both organizations are "business associations". That is, they are an organization that
represents the interests of the leaders of the business that are members of the organization.
In short, they are the collusion of the largest audio recording studios and movie studios,
respectively. There is another similar organization for the book publishing industry.
All of these collectives neatly hide the fact that the vast majority of the commercial information
in the country comes from a very small set of very large companies, often through dummy
companies and wholly owned subsidiaries. Examples include the AOL/TimeWarner
conglomerate, which owns AOL, TIME Magazine, Warner Bros. Studios, Warner Music, and
about half of cable (CNN, Comedy Central, Cartoon Network, HBO, MTV, and others);
Viacom, which owns the other half of cable plus CBS, Paramount, UPN, and Blockbuster
Video; and Disney, which owns ABC, the last few cable channels, and the Mickey Mouse
empire.
These organizations are responsible for pushing through legislation that is actively working to
restrict and alter the balance of copyright for their own profit, and to circumvent Fair Use.
Laws such as the Digital Millennium Copyright Act of 1998 make it illegal to access
information that is protected by a digital copy-prevention system, even if the reason for doing
so is to exercise Fair Use rights. That means an end to critical review, academic analysis,
time-shifting, space-shifting, and conversion. It also means that even when the copyright term
on the information expires, the information will not enter the public domain because there will
be contractual preventions to people accessing the information in the first place. The
information will then simply die and be lost to society, or else serve as a means for the
company in question to extort money out of the public domain for permission to access the
now public domain works.
Perhaps the best example of this sort of manipulation is DVDs. All DVDs include an
encryption system called CSS, which is a rather poor security system that requires a special
decryption key in order to view the information contained on the disk. CSS is a form of so-
called "Digital Rights Management", which is a nice name for "Digital Rights Removal".
Getting the key requires a company to sign a non-disclosure agreement with the MPAA,
saying that they will not let anyone else have the key, and then they can make a DVD player
according to the MPAA's rules. Those rules include honoring the region code, a simple flag on
each DVD disk that specifies which of seven world regions the disk is intended for. All DVD
players are also region-coded, and DVD players are required by the MPAA to reject any disks
not from their own region. Unlike NTSC/PAL/SECAM, which is different encoding schemes,
the DVD region code is a completely artificial division of markets. (Which is itself the textbook
definition of a cartel; collusion to divide up a market.)
The reason for the DVD region code is simple; the studios can then charge more for a DVD in
the US and Europe, where people can afford $20-$30 per disk, than in India or Africa, where
they can afford only $5 per disk, without worrying about people legally buying DVDs in New
Delhi, bringing them legally to San Francisco, and selling them legally at a profit. It is an
accessory to price fixing. (Mind you, the actual artists do not see any of that extra profit from
price fixing.)
While the DVD encryption system has been broken, those who so much as provide web links
to places where the decryption code can be found have been charged under US law with
what amounts to "accessory to potential copyright violation". Having the decryption code does
not make it easier to make direct unauthorized copies of a disk. You could always do that. It
makes it possible to write software DVD players for computer platforms (GNU/Linux, BSD,
and so on) that the MPAA has chosen for whatever reason to not support. That way, people
can watch their legally purchased DVDs, even if they are in Detroit and the DVD is from
Japan. (They ignore the region code.) Yet that is illegal, and is only the beginning of what the
movie studios and record labels want.
Of course, it's now unlikely that information will ever enter the public domain again. Copyright,
which was once a term of 14 years, has been extended over and over in the past few
decades to now be 70 years after the death of the author. That extension was made by the
Sonny Bono Copyright Term Extension Act of 1996, also known as the "Mickey Mouse
Protection Act", as it was passed shortly before the Mickey Mouse character was to pass into
the public domain. Despite the clear violation of such extensions of both ex post facto and the
"limited time" phrase of the copyright clause in the Constitution, the Supreme Court recently
ruled, in effect, "yes, it's abuse of the system, but we're not going to do anything about it." So
with carte blanche to perpetually extend copyright ad infinitim, no information produced after
1930 or so is likely to ever fall into the public domain. That is, as shown above, clearly to the
detriment of society.
That is, also, only scratching the surface of what the copyright cartels have done or are
planning to do. Other plans already underway include requiring all consumer electronics to
use encryption systems similar to the DVD CSS system, particularly systems created by the
copyright cartels (thus handing legislative power over to private corporations); requiring all
digital TV broadcasts to include an optional "no copy" bit that recorders like TiVo would be
required to honor (so no more taping a show while you're out and watching it later);
preventing the fast forwarding or muting of commercials (the CEO of TimeWarner has gone
on record stating that he feels that going to the bathroom during TV commercials and
therefore not watching them is "stealing"); not permitting you to install software on your own
computer that was not pre-approved by a single company (Microsoft Palladium, or "Trusted
Computing" which is all about not trusting the user, and anything involving Microsoft .NET or
Passport); and requiring that users allow third party companies to access their system at will
to disable features they feel may be a danger to them. (If you have installed Windows XP,
Office XP, or any version of Windows Media Player 7 or higher, you have already signed a
license agreement that gives Microsoft that right. It's in the End User License Agreement that
to which you clicked "OK" when installing it, or accepted tacitly when you bought the
computer with it pre-installed.)
What is the main rallying cry and justification used by the copyright cartels for these actions?
"We have to protect our intellectual property against pirates!"
Protecting "Intellectual Property" with "Digital Rights Management" and making all electronics
based on "Trusted Computing", that is the war cry of the copyright cartels, with words
carefully chosen to sound innocuous and protective, when in fact they are subversive,
destructive, and extortionary.
That is why I make such a big deal out of such a little term. It is the cornerstone of a massive
push to co-opt society's right to its own cultural heritage and essentially extort money from the
populace to access what is rightfully theirs in the first place. It is a perversion of the natural
order of the universe, made for the financial gain of a select few.
So the next time you get into a discussion of copyright, information, creativity, or similar
topics, be careful of what you are saying. Check yourself to make sure you aren't falling into
the trap that has been carefully laid for you by the copyright cartels for the past 30 years. Do
not violate copyright. But stand up for your right to information, your right to Fair Use, and the
purity of the fundamental order of the universe.

Additional Reading:
• The Right to Read, by Richard M. Stallman
• What's Wrong with Copy Protection, by John Gilmore
• The Digital Speech Project
• The Electronic Frontier Foundation
• Creative Commons

This work is licensed under a Creative Commons License Redistribution is permitted for non-
commercial purposes provided that proper attribution is included.
Content © 2004 Laurence Garfield, Nathan C. Hampton, and Jeromy Stark.
Reformatting © 2007 Arithmomaniac

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