Copy rights and wrongs

The best insights compound the obvious. They make so much sense that you struggle to comprehend their many implications. Such is the case with the first line, and then the first paragraph, of Kevin Kelly‘s Better than Free:

The internet is a copy machine. At its most foundational level, it copies every action, every character, every thought we make while we ride upon it. In order to send a message from one corner of the internet to another, the protocols of communication demand that the whole message be copied along the way several times. IT companies make a lot of money selling equipment that facilitates this ceaseless copying. Every bit of data ever produced on any computer is copied somewhere. The digital economy is thus run on a river of copies. Unlike the mass-produced reproductions of the machine age, these copies are not just cheap, they are free.

Consider the implication of this for the concept of copyright, then ponder the pile of law that first defined it in 1790 (in the U.S.) and has expanded on it ever since.

I won’t offer an opinion about that here, but instead turn our floor over to a pair of brilliant opponents on the subject: William F. Patry and Ben Sheffner. Bill is the author of Moral Panics and the Copyright Wars and a blog by the same name, subtitled “A blog about copyright discourse”—and a copyright attorney in the employ of Google (though he is careful to add, everywhere it makes sense, that “This is a personal blog, not a Google blog”.) Ben is a “copyright/First Amendment/media/entertainment attorney and former journalist” with a long list of credentials in the sidebar of his Copyrights & Campaigns blog, subtitled “Ben Sheffner’s notes on copyright, First Amendment, media, and entertainment law, and political campaigns”. Bill and Ben have been enjoying a very civil and illuminating debate, which Bill outlines this way:

Given the reverse-chronological nature (or LIFD–Last In, First Dug) nature of both blog publishing and geology, the first post is the bottom one on that list. Start there and work upward. I guarantee you will be smarter by the time you get to the top, and hungry for more.

As a pair of bonus links, I’ll point to Edward Samuels’ The Illustrated Story of Copyright, and Michele Boldrin and David K. Levine‘s Against Intellectual Monopoly. I’ve read the first, but not the second. Basically I’m just sharing my reading list here. Again, no opinions. Yet.

Oh, one more recommendation: Adam Gopnik’s Angels and Ages: A Short Book About Darwin, Lincoln, and Modern Life. Among many of its quotable nuggets is this one: “Law is the practice of rules in a context of deals, and Lincoln believed in both.” Keep that in mind when reading all the above.

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  1. Crosbie Fitch’s avatar

    I pointed out Kevin Kelly’s observations of the fine cloth from which the copyright empire’s raiment was made last year:

    That was also one of the straw’s that broke the back of Patry’s tolerance for my comments on his blog – he no longer publishes them – however innocuous.

    I am thus anointed as a heretic beyond salvation.

    The obviousness of why copyright is an ineffective and unethical anachronism suffers the same curse of Cassandra as heliocentricity – the cognoscenti are ostracised until their position becomes accepted by the aristocracy.

  2. anon’s avatar

    Hmmm. Crosbie seems not to be the only one whose comments Mr. Patry declines to publish. I submitted the following about 27 hours ago as a comment to the last (chronolocially) of the articles Doc linked to, and it has not yet appeared among the comments. It was posted anonymously, so perhaps Mr. Patry just has been too busy to find and release it from the queue. But in case he really is limiting what suggestions he is willing to allow to appear, I hope Doc doesn’t mind hosting the comment here:

    ************ begin comment for Mr. Patry ********

    Let me start by admitting that I have only scanned the articles and comments in this series of posts (my attention was directed here by Doc Searls’ post today). If my point below has already been raised, please forgive the duplication.

    My impression is that a very important issue is not being examined. That issue is whether the reason seemingly universally advanced for justifying the existence of copyrights and patents has any basis in fact. (Yes, I know patents aren’t under discussion here; I won’t mention them again, but the underlying question is the same for them though the answer could be different for them.)

    As far as I know, there is little or no evidence that granting of copyright actually promotes the overall progress of science and the useful arts, the justification given in the U.S. Constitution. And there seems to be a fair body of scholarly work that refutes the claim that it does so. There was considerable disagreement among the framers of the U.S. Constitution over the issue of whether such intellectual monopolies were justified and productive, so they at least recognized that there is some uncertainty about the justification. Very few people today seem to recognize that it is not an established fact.

    Before someone jumps in with assertions that the existence of many industries that are dependent upon such intellectual monopolies shows the need for them, let me take up that point. I certainly don’t deny that such industries exist. They have arisen to take advantage of the opportunity to exploit the artificially-created monopolies. There is no doubt that intellectual monopolies benefit those who are exploiting them. But there is also no doubt that intellectual monopolies inhibit progress in some ways. The important issue that should be being examined is whether, for society as a whole, would there be more progress in science and the useful arts under the present system of intellectual monopolies, or under some other system which has no such intellectual monopolies, or a greatly different form of such. I can’t accept that the mere fact that some can make a good business by exploiting intellectual monopolies is enough justification for granting such monopolies. If it can be demonstrated that this benefits society as a whole, okay; otherwise not okay.

    Certainly if copyright were eliminated or drastically changed (not merely reformed as copyright-minimalists advocate), the industries that depend on it would be greatly harmed, at least in the short run, and would be forced to change drastically or would disappear. But we should not be trapped forever by mistaken choices made in the past. If, after considerably more study than the issue has so far received, it becomes clear that the current system of granting intellectual monopolies is giving a worse result, measured over our whole society (not just for some segments of it), than eliminating or drastically changing that system, then we should move forward to take the indicated action, possibly with temporary provisions to ease the impact on affected industries, though sometimes a quick, forced change is better than a slow transition.

    The fact that there is very little attention begin given to the fundamental question of whether granting intellectual monopolies is actually of benefit to society as a whole, is, to me, a gross failure of the discussion here, and of the intellectual community as a whole.

    ************ end comment for Mr. Patry ************

  3. Doc Searls’s avatar

    I won’t speak for Bill Patry, but I’m beginning to see copyright (and patents, at least for software and business methods) as emphysema of the marketplace: something that is bad to begin with and only gets worse.

    Can either of you name a single legislative or regulatory instance (in any country) when the concept of copyright has been challenged successfully — or the scope of its restrictions (in time or any other dimension) has ever been reduced? I can’t, but I’m not a lawyer.

  4. Paul Maurice Martin’s avatar

    “These Links Look Interesting”
    By Paul M. Martin

    These links look interesting but even scanning them you almost start to develop a kind of allergy to the copyright concept.

    Comment Copyright Paul M. Martin, 2009, All Rights Reserved Except That My Mom May Print Out and Put on Her Fridge with a Magnet

  5. Brett Glass’s avatar

    The Internet isn’t a copy machine. It’s a pathway over which copies may be delivered (just as a road is a pathway over which trucks can deliver things — including copies of things). Computers are the copy machines.

  6. Mike Masnick’s avatar

    Doc, you’re right. Copyright is almost always expanded, never contracted.

    As far as I know there is only *one* TINY exception I can think of. I can’t remember when, but the US gov’t declared that documents produced by the federal gov’t are automatically in the public domain. At a recent conference on copyright law that went through this last 100 years of copyright law in the US, I believe that was the *only* time copyright has moved in the other direction, and it’s for such a minor issue (and one that is sometimes ignored).

    Other countries don’t even have this. Many have something called “crown copyright” that does give gov’t copyright over documents. And, in the US, this only applies to federal documents, not state gov’t.

    So, yeah. Copyright only expands, never contracts.

    Patry’s book is *excellent* by the way, and well worth the read. As is the Levine/Boldrin book. And if you’re looking for another one, I’d add James Boyle’s wonderful book, The Public Domain.

  7. Crosbie Fitch’s avatar

    That’s probably a question William Patry could give an authoritative answer to – if he had any inclination in providing assistance to those who would dismantle the privilege he has made a career out of. He has demonstrated he will not provide publicity – declining to publish comments by such.

    Copyright has been successfully demonstrated as a state granted privilege/monopoly (and not a natural right) several times, but that (and many unsuccessful challenges) hasn’t created any hesitation in consolidating and enhancing copyright legislation.

    Monopolies are highly addictive – a vicious circle of dependency. Those who would be favoured by them lobby generously, and those who grant and enhance them are rewarded generously. Onlookers see only commercial prosperity. Any loss of cultural liberty or reduction in technological, scientific, or commercial progress is largely invisible (how can you notice what has not happened?). Those who don’t have monopolies aspire to have them, so defend their continuation. It’s a gigantic pyramid scam – everyone wants to be one of the few stars at the top, so they forgive the fact that so few are, and fail to notice that monopolies only redistribute wealth. They do not represent a contribution in productivity, only a sacrifice of liberty from the many to reward the few.

    I suspect the only things resembling successful challenges to copyright are technological (piano roll, gramophone, radio, streaming), but have been resolved as compulsory licenses. The Internet is quite a major technological challenge, and will either be successful (resulting in abolition), or resolved as a license (Internet tax). Free software is an interesting development, and could usefully serve as evidence that progress and prosperity can occur without monopoly (free as in speech, not as in beer). Another useful demonstrator would be a revenue mechanism that facilitated the exchange of intellectual work for money (without monopoly) – and that’s what I’m working on.

    The US Constitution was supposed to be a clean slate, devoid of the ills of monopolies so well recognised in Europe. It only took 3 years before monopolies were once again legislated. Jefferson tried to keep it clean, but addicts always find a way to get their fix.

  8. Timothy Phillips’s avatar

    As was noted over at Techdirt, Spain, in the 1980s I believe, reduced its copyright term from life+80 years to life+60 years. It has since been raised to life+70 as part of EU copyright term harmonization.

  9. Crosbie Fitch’s avatar

    Ah, but was that reduction the result of a ‘successful challenge’ or simply the publishing industry tweaking, out of purely economic interest, a balance between the works it needed to copy vs the works it wished to retain a monopoly over?

    Who would mount a challenge over the copyright term of a work produced 80-130 years prior to 1980, i.e. 1850-1900? A postcard manufacturer?

    Of course, some people persist in pretending that by extending the term you increase the incentive. One thus needs a time-machine to see if the tweaking in 1980 affected the incentive of artists in the 19th century. No doubt crystal balls rested on every author’s desk, and if in them they could scry their grandchildren’s pension they’d write a little more prodigiously, and if it was cut back by 20 years they’d be disheartened.

  10. Jim Gaines’s avatar

    Thanks for this. You were right.

  11. Mirek Sopek’s avatar

    I guess we just witness high profile struggle over or against the dominance of copy-machine by Google:

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