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-<h3>Reevaluating Copyright: The Public Must Prevail</h3>
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src="/graphics/philosophical-gnu-sm.jpg" alt=" [image of a Philosophical Gnu] "
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+<!--#include virtual="/server/header.html" -->
-<pre>
+ <title>Reevaluating Copyright: The Public Must Prevail</title>
+
+<!--#include virtual="/server/banner.html" -->
+
+ <h3>Reevaluating Copyright: The Public Must Prevail</h3>
+
+<div id="rms-image"></div>
+
+ <pre>
Reevaluating Copyright: The Public Must Prevail
[Published in Oregon Law Review, Spring 1996]
Richard Stallman
</pre>
-<p>
-The legal world is aware that digital information technology poses
-"problems for copyright," but has not traced these problems to their
-root cause: a fundamental conflict between publishers of copyrighted
-works and the users of these works. The publishers, understanding
-their own interest, have set forth a proposal through the Clinton
-Administration to fix the "problems" by deciding the conflict in their
-favor. This proposal, the Lehman White Paper <a href="#ft2">[2]</a>, was the
principal
-focus of the "Innovation and the Information Environment" conference
-at the University of Oregon (November 1995).</p>
-<p>
-John Perry Barlow <a href="#ft3">[3]</a>, the keynote speaker, began the
conference by
-telling us how the Greatful Dead recognized and dealt with this
-conflict. They decided it would be wrong to interfere with copying of
-their performances on tapes, or with distribution on the Internet, but
-saw nothing wrong in enforcing copyright for CD recordings of their
-music.</p>
-<p>
-Barlow did not analyze the reasons for treating these media
-differently, and later Gary Glisson <a href="#ft4">[4]</a> criticized Barlow's
idea that the
-Internet is inexplicably unique and unlike anything else in the world.
-He argued that we should be able to determine the implications of the
-Internet for copyright policy by the same kind of analysis that we
-apply to other technologies. This paper attempts to do just that.</p>
-<p>
-Barlow suggested that our intuitions based on physical objects as
-property do not transfer to information as property because
-information is "abstract." As Steven Winter <a href="#ft5">[5]</a> remarked,
abstract
-property has existed for centuries. Shares in a company, commodity
-futures, and even paper money, are forms of property that are more or
-less abstract. Barlow and others who argue that information should be
-free do not reject these other kinds of abstract property. Clearly,
-the crucial difference between information and acceptable kinds of
-property is not abstractness per se. So what is it? I propose a
-simple and practical explanation.</p>
-<p>
-United States copyright law considers copyright a bargain between the
-public and "authors" (although in practice, usually publishers take
-over the authors' part of the bargain). The public trades certain
-freedoms in exchange for more published works to enjoy. Until the
-White Paper, our government had never proposed that the public should
-trade *all* of its freedom to use published works. Copyright involves
-giving up specific freedoms and retaining others. This means that
-there are many alternative bargains that the public could offer to
-publishers. So which bargain is the best one for the public? Which
-freedoms are worth while for the public to trade, and for what
-length of time? The answers depend on two things: how much additional
-publication the public will get for trading a given freedom, and how
-much the public benefits from keeping that freedom.</p>
-<p>
-This shows why making <a href="#later-1"> intellectual property
-decisions</a> by analogy to physical object property, or even to older
-intellectual property policies, is a mistake. Winter argued
-persuasively that it is possible to make such analogies, to stretch
-our old concepts and apply them to new
-decisions <a href="#ft6">[6]</a>. Surely this will reach some
-answer--but not a good answer. Analogy is not a useful way of
-deciding what to buy or at what price.</p>
-<p>
-For example, we do not decide whether to build a highway in New York
-City by analogy with a previous decision about a proposed highway in
-Iowa. In each highway construction decision, the same factors apply
-(cost, amount of traffic, taking of land or houses); if we made
-highway decisions by analogy to previous highway decisions, we would
-either build every proposed highway or none of them. Instead we judge
-each proposed highway based on the pros and cons, whose magnitudes
-vary from case to case. In copyright issues, too, we must weigh the
-cost and benefits for today's situation and today's media, not as they
-have applied to other media in the past.</p>
-<p>
-This also shows why Laurence Tribe's principle, that rights concerning
-speech should not depend on the choice of medium<a href="#ft7">[7]</a>, is not
applicable to
-copyright decisions. Copyright is a bargain with the public, not a
-natural right. Copyright policy issues are about which bargains
-benefit the public, not about what rights publishers or readers are
-entitled to.</p>
-<p>
-The copyright system developed along with the printing press. In the
-age of the printing press, it was unfeasible for an ordinary reader to
-copy a book. Copying a book required a printing press, and ordinary
-readers did not have one. What's more, copying in this way was
-absurdly expensive unless many copies were made--which means, in
-effect, that only a publisher could copy a book economically.</p>
-<p>
-So when the public traded to publishers the freedom to copy books,
-they were selling something which they *could not use*. Trading
-something you cannot use for something useful and helpful is
-always good deal. Therefore, copyright was uncontroversial in the age
-of the printing press, precisely because it did not restrict anything
-the reading public might commonly do.</p>
-<p>
-But the age of the printing press is gradually ending. The xerox
-machine and the audio and video tape began the change; digital
-information technology brings it to fruition. These advances make it
-possible for ordinary people, not just publishers with specialized
-equipment, to copy. And they do!</p>
-<p>
-Once copying is a useful and practical activity for ordinary people,
-they are no longer so willing to give up the freedom to do it. They
-want to keep this freedom and exercise it instead of trading it away.
-The copyright bargain that we have is no longer a good deal for the
-public, and it is time to revise it--time for the law to recognize the
-public benefit that comes from making and sharing copies.</p>
-<p>
-With this analysis, we see why rejection of the old copyright bargain
-is not based on supposing that the Internet is ineffably unique. The
-Internet is relevant because it facilitates copying and sharing of
-writings by ordinary readers. The easier it is to copy and share, the
-more useful it becomes, and the more copyright as it stands now
-becomes a bad deal.</p>
-<p>
-This analysis also explains why it makes sense for the Grateful Dead
-to insist on copyright for CD manufacturing but not for individual
-copying. CD production works like the printing press; it is not
-feasible today for ordinary people, even computer owners, to copy a CD
-into another CD. Thus, copyright for publishing CDs of music remains
-painless for music listeners, just as all copyright was painless in
-the age of the printing press. To restrict copying the same music
-onto a digital audio tape does hurt the listeners, however, and they
-are entitled to reject this restriction. (1999 note: the practical
-situation for CDs has changed, in that many ordinary computer users can
-now copy CDs. This means that we should now consider CDs more like tapes.)</p>
-<p>
-We can also see why the abstractness of <a href="#later-1">
-intellectual property</a> is not
-the crucial factor. Other forms of abstract property represent shares
-of something. Copying any kind of share is intrinsically a zero-sum
-activity; the person who copies benefits only by taking wealth away
-from everyone else. Copying a dollar bill in a color copier is
-effectively equivalent to shaving a small fraction off of every other
-dollar and adding these fractions together to make one dollar.
-Naturally, we consider this wrong.</p>
-<p>
-By contrast, copying useful, enlightening or entertaining information
-for a friend makes the world happier and better off; it benefits the
-friend, and inherently hurts no one. It is a constructive activity
-that strengthens social bonds.</p>
-<p>
-Some readers may question this statement because they know publishers
-claim that illegal copying causes them "loss." This claim is mostly
-inaccurate and partly misleading. More importantly, it is begging the
-question.</p>
-<ul>
-<li>The claim is mostly inaccurate because it presupposes that the
- friend would otherwise have bought a copy from the publisher.
- That is occasionally true, but more often false; and when it is
- false, the claimed loss does not occur.</li>
-<li>The claim is partly misleading because the word "loss" suggests
- events of a very different nature--events in which something they
- have is taken away from them. For example, if the bookstore's
- stock of books were burned, or if the money in the register got
- torn up, that would really be a "loss." We generally agree it is
- wrong to do these things to other people.
-
- <p>But when your friend avoids the need to buy a copy of a book, the
- bookstore and the publisher do not lose anything they had. A more
- fitting description would be that the bookstore and publisher get
- less income than they might have got. The same consequence can
- result if your friend decides to play bridge instead of reading a
- book. In a free market system, no business is entitled to cry
- "foul" just because a potential customer chooses not to deal with
- them.</p></li>
-
-<li>The claim is begging the question because the idea of "loss" is
- based on the assumption that the publisher "should have" got paid.
- That is based on the assumption that copyright exists and
- prohibits individual copying. But that is just the issue at hand:
- what should copyright cover? If the public decides it can share
- copies, then the publisher is not entitled to expect to be paid
- for each copy, and so cannot claim there is a "loss" when it is
- not.
-
- <p>In other words, the "loss" comes from the copyright system; it is
- not an inherent part of copying. Copying in itself hurts no one.</p></li>
-</ul>
-<p>
-The most widely opposed provision of the White Paper is the system of
-collective responsibility, whereby a computer owner is required to
-monitor and control the activities of all users, on pain of being
-punished for actions in which he was not a participant but merely
-failed to actively prevent. Tim Sloan <a href="#ft8">[8]</a> pointed out that
this gives
-copyright owners a privileged status not accorded to anyone else who
-might claim to be damaged by a computer user; for example, no one
-proposes to punish the computer owner if he fails actively to prevent
-a user from defaming someone. It is natural for a government to turn
-to collective responsibility for enforcing a law that many citizens do
-not believe in obeying. The more digital technology helps citizens
-share information, the more the government will need draconian methods
-to enforce copyright against ordinary citizens.</p>
-<p>
-When the United States Constitution was drafted, the idea that authors
-were entitled to a copyright monopoly was proposed--and rejected <a
href="#ft9">[9]</a>.
-Instead, the founders of our country adopted a different idea of
-copyright, one which places the public first<a href="#ft10">[10]</a>.
Copyright in the
-United States is supposed to exist for the sake of users; benefits for
-publishers and even for authors are not given for the sake of those
-parties, but only as an inducement to change their behavior. As the
-Supreme Court said in Fox Film Corp. v. Doyal: "The sole interest of
-the United States and the primary object in conferring the [copyright]
-monopoly lie in the general benefits derived by the public from the
-labors of authors."<a href="#ft11">[11]</a></p>
-<p>
-Under the Constitution's view of copyright, if the public prefers to
-be able to make copies in certain cases even if that means somewhat
-fewer works are published, the public's choice is decisive. There is
-no possible justification for prohibiting the public from copying what
-it wants to copy.</p>
-<p>
-Ever since the constitutional decision was made, publishers have tried
-to reverse it by misinforming the public. They do this by repeating
-arguments which presuppose that copyright is a natural right of
-authors (not mentioning that authors almost always cede it to
-publishers). People who hear these arguments, unless they have a firm
-awareness that this presupposition is contrary to the basic premises
-of our legal system, take for granted that it is the basis of that
-system.</p>
-<p>
-This error is so ingrained today that people who oppose new copyright
-powers feel the need to do so by arguing that even authors and
-publishers may be hurt by them. Thus, James Boyle<a href="#ft12">[12]</a>
explains how a
-strict <a href="later-2">intellectual property system</a> can
-interfere with writing new works. Jessica
-Litman<a href="#ft13">[13]</a> cites the copyright shelters which
-historically allowed many new media to become popular. Pamela
-Samuelson <a href="#ft14">[14]</a> warns that the White Paper may
-block the development of "third-wave" information industries by
-locking the world into the "second-wave" economic model that fit the
-age of the printing press.</p>
-<p>
-These arguments can be very effective on those issues where they are
-available, especially with a Congress and Administration dominated by
-the idea that "What's good for General Media is good for the USA."
-But they fail to expose the fundamental falsehood on which this
-domination is based; as a result, they are ineffective in the long
-term. When these arguments win one battle, they do so without
-building a general understanding that helps win the next battle. If
-we turn to these arguments too much and too often, the danger is that
-we may allow the publishers to replace the Constitution uncontested.</p>
-<p>
-For example, the recently published position statement of the Digital
-Future Coalition, an umbrella organization, lists many reasons to
-oppose the White Paper, for the sake of authors, libraries, education,
-poor Americans, technological progress, economic flexibility, and
-privacy concerns--all valid arguments, but concerned with side
-issues <a href="#ft15">[15]</a>. Conspicuously absent from the list is the
most important
-reason of all: that many Americans (perhaps most) want to continue
-making copies. The DFC fails to criticize the core goal of the White
-Paper, which is to give more power to publishers, and its central
-decision, to reject the Constitution and place the publishers above
-the users. This silence may be taken for consent.</p>
-<p>
-Resisting the pressure for additional power for publishers depends on
-widespread awareness that the reading and listening public are
-paramount; that copyright exists for users and not vice versa. If the
-public is unwilling to accept certain copyright powers, that is ipso
-facto justification for not offering them. Only by reminding the
-public and the legislature of the purpose of copyright and the
-opportunity for the open flow of information can we ensure that the
-public prevails.</p>
-
-<p>
-Copyright 1996 Richard Stallman
-Verbatim copying and distribution are permitted in any medium
-provided this notice is preserved.</p>
-
-<h3>ENDNOTES</h3>
-<p>
-<a id="ft2">
-[2]
-</a>Informational Infrastructure Task Force, Intellectual Property and
-the National Information Infrastructure: The Report of the Working Group
-on Intellectual Property Rights (1995).</p>
-<p>
-<a id="ft3">
-[3]
-</a>John Perry Barlow, Remarks at the Innovation and the Information
-Environment Conference (Nov. 1995). Mr. Barlow is one of the founders of
-the Electronic Frontier Foundation, an organization which promotes
-freedom of expression in digital media, and is also a former lyricist for
-the Grateful Dead.</p>
-<p>
-<a id="ft4">
-[4]
-</a>Gary Glisson, Remarks at the Innovation and the Information
-Environment Conference (Nov. 1995); see also Gary Glisson, A
-Practitioner's Defense of the NII White Paper, 75 Or. L. Rev. (1996)
-(supporting the White Paper). Mr. Glisson is a partner and chair of
-the Intellectual Property Group at Lane Powell Spears Lubersky in
-Portland, Oregon.</p>
-<p>
-<a id="ft5">
-[5]
-</a>
-Steven Winter, Remarks at the Innovation and the Information
-Environment Conference (Nov. 1995). Mr. Winter is a professor at the
-University of Miami School of Law.</p>
-<p>
-<a id="ft6">
-[6]
-</a>
-Winter, supra note 4.</p>
-<p>
-<a id="ft7">
-[7]
-</a>
-See Laurence H. Tribe, The Constitution in Cyberspace: Law and
-Liberty Beyond the Electronic Frontier, Humanist, Sept.-Oct. 1991, at 15. </p>
-<p>
-<a id="ft8">
-[8]
-</a>
-Tim Sloan, Remarks at the Innovation and the Information Environment
-Conference (Nov. 1995). Mr. Sloan is a member of the National
-Telecommunication and Information Administration.</p>
-<p>
-<a id="ft9">
-[9]
-</a>
-See Jane C. Ginsburg, A Tale of Two Copyrights: Liberary Property
-in Revolutionary France and America, in, Of Authors and Origins:
-Essays on Copyright Law 131, 137-38 (Brad Sherman & Alain Strowel,
-eds., 1994) (stating that the Constitution's framers either meant to
-"subordinate[] the author's interests to the public benefit," or to
-"treat the private and public interests...even-handedly.").</p>
-<p>
-<a id="ft10">
-[10]
-</a>
-U.S. Const., art. I, p. 8, cl. 8 ("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.").</p>
-<p>
-<a id="ft11">
-[11]
-</a>
-286 U.S. 123, 127 (1932).</p>
-<p>
-<a id="ft12">
-[12]
-</a>
-James Boyle, Remarks at the Innovation and the Information
-Environment Conference (Nov. 1995). Mr. Boyle is a Professor of Law at
-American University in Washington, D.C.</p>
-<p>
-<a id="ft13">
-[13]
-</a>
-Jessica Litman, Remarks at the Innovation and the Information
-Environment Conference (Nov. 1995). Ms. Litman is a Professor at Wayne
-State University Law School in Detroit, Michigan.</p>
-<p>
-<a id="ft14">
-[14]
-</a>
-Pamela Samuelson, The Copyright Grab, Wired, Jan. 1996. Ms.
-Samuelson is a Professor at Cornell Law School.</p>
-<p>
-<a id="ft15">
-[15]
-</a>
-Digital Future Coalition, Broad-Based Coalition Expresses Concern
-Over Intellectual Property Proposals, Nov. 15, 1995<!-- (available at URL:
+ <p>The legal world is aware that digital information technology
+ poses "problems for copyright," but has not traced these problems
+ to their root cause: a fundamental conflict between publishers of
+ copyrighted works and the users of these works. The publishers,
+ understanding their own interest, have set forth a proposal
+ through the Clinton Administration to fix the "problems" by
+ deciding the conflict in their favor. This proposal, the Lehman
+ White Paper <a href="#ft2">[2]</a>, was the principal focus of
+ the "Innovation and the Information Environment" conference at
+ the University of Oregon (November 1995).</p>
+
+ <p>John Perry Barlow <a href="#ft3">[3]</a>, the keynote speaker,
+ began the conference by telling us how the Greatful Dead
+ recognized and dealt with this conflict. They decided it would be
+ wrong to interfere with copying of their performances on tapes,
+ or with distribution on the Internet, but saw nothing wrong in
+ enforcing copyright for CD recordings of their music.</p>
+
+ <p>Barlow did not analyze the reasons for treating these media
+ differently, and later Gary Glisson <a href="#ft4">[4]</a>
+ criticized Barlow's idea that the Internet is inexplicably unique
+ and unlike anything else in the world. He argued that we should
+ be able to determine the implications of the Internet for
+ copyright policy by the same kind of analysis that we apply to
+ other technologies. This paper attempts to do just that.</p>
+
+ <p>Barlow suggested that our intuitions based on physical objects
+ as property do not transfer to information as property because
+ information is "abstract." As Steven Winter <a href=
+ "#ft5">[5]</a> remarked, abstract property has existed for
+ centuries. Shares in a company, commodity futures, and even paper
+ money, are forms of property that are more or less abstract.
+ Barlow and others who argue that information should be free do
+ not reject these other kinds of abstract property. Clearly, the
+ crucial difference between information and acceptable kinds of
+ property is not abstractness per se. So what is it? I propose a
+ simple and practical explanation.</p>
+
+ <p>United States copyright law considers copyright a bargain
+ between the public and "authors" (although in practice, usually
+ publishers take over the authors' part of the bargain). The
+ public trades certain freedoms in exchange for more published
+ works to enjoy. Until the White Paper, our government had never
+ proposed that the public should trade *all* of its freedom to use
+ published works. Copyright involves giving up specific freedoms
+ and retaining others. This means that there are many alternative
+ bargains that the public could offer to publishers. So which
+ bargain is the best one for the public? Which freedoms are worth
+ while for the public to trade, and for what length of time? The
+ answers depend on two things: how much additional publication the
+ public will get for trading a given freedom, and how much the
+ public benefits from keeping that freedom.</p>
+
+ <p>This shows why making <a href="#later-1">intellectual property
+ decisions</a> by analogy to physical object property, or even to
+ older intellectual property policies, is a mistake. Winter argued
+ persuasively that it is possible to make such analogies, to
+ stretch our old concepts and apply them to new decisions <a href=
+ "#ft6">[6]</a>. Surely this will reach some answer--but not a
+ good answer. Analogy is not a useful way of deciding what to buy
+ or at what price.</p>
+
+ <p>For example, we do not decide whether to build a highway in
+ New York City by analogy with a previous decision about a
+ proposed highway in Iowa. In each highway construction decision,
+ the same factors apply (cost, amount of traffic, taking of land
+ or houses); if we made highway decisions by analogy to previous
+ highway decisions, we would either build every proposed highway
+ or none of them. Instead we judge each proposed highway based on
+ the pros and cons, whose magnitudes vary from case to case. In
+ copyright issues, too, we must weigh the cost and benefits for
+ today's situation and today's media, not as they have applied to
+ other media in the past.</p>
+
+ <p>This also shows why Laurence Tribe's principle, that rights
+ concerning speech should not depend on the choice of
+ medium<a href="#ft7">[7]</a>, is not applicable to copyright
+ decisions. Copyright is a bargain with the public, not a natural
+ right. Copyright policy issues are about which bargains benefit
+ the public, not about what rights publishers or readers are
+ entitled to.</p>
+
+ <p>The copyright system developed along with the printing press.
+ In the age of the printing press, it was unfeasible for an
+ ordinary reader to copy a book. Copying a book required a
+ printing press, and ordinary readers did not have one. What's
+ more, copying in this way was absurdly expensive unless many
+ copies were made--which means, in effect, that only a publisher
+ could copy a book economically.</p>
+
+ <p>So when the public traded to publishers the freedom to copy
+ books, they were selling something which they *could not use*.
+ Trading something you cannot use for something useful and helpful
+ is always good deal. Therefore, copyright was uncontroversial in
+ the age of the printing press, precisely because it did not
+ restrict anything the reading public might commonly do.</p>
+
+ <p>But the age of the printing press is gradually ending. The
+ xerox machine and the audio and video tape began the change;
+ digital information technology brings it to fruition. These
+ advances make it possible for ordinary people, not just
+ publishers with specialized equipment, to copy. And they do!</p>
+
+ <p>Once copying is a useful and practical activity for ordinary
+ people, they are no longer so willing to give up the freedom to
+ do it. They want to keep this freedom and exercise it instead of
+ trading it away. The copyright bargain that we have is no longer
+ a good deal for the public, and it is time to revise it--time for
+ the law to recognize the public benefit that comes from making
+ and sharing copies.</p>
+
+ <p>With this analysis, we see why rejection of the old copyright
+ bargain is not based on supposing that the Internet is ineffably
+ unique. The Internet is relevant because it facilitates copying
+ and sharing of writings by ordinary readers. The easier it is to
+ copy and share, the more useful it becomes, and the more
+ copyright as it stands now becomes a bad deal.</p>
+
+ <p>This analysis also explains why it makes sense for the
+ Grateful Dead to insist on copyright for CD manufacturing but not
+ for individual copying. CD production works like the printing
+ press; it is not feasible today for ordinary people, even
+ computer owners, to copy a CD into another CD. Thus, copyright
+ for publishing CDs of music remains painless for music listeners,
+ just as all copyright was painless in the age of the printing
+ press. To restrict copying the same music onto a digital audio
+ tape does hurt the listeners, however, and they are entitled to
+ reject this restriction. (1999 note: the practical situation for
+ CDs has changed, in that many ordinary computer users can now
+ copy CDs. This means that we should now consider CDs more like
+ tapes.)</p>
+
+ <p>We can also see why the abstractness of <a href=
+ "#later-1">intellectual property</a> is not the crucial factor.
+ Other forms of abstract property represent shares of something.
+ Copying any kind of share is intrinsically a zero-sum activity;
+ the person who copies benefits only by taking wealth away from
+ everyone else. Copying a dollar bill in a color copier is
+ effectively equivalent to shaving a small fraction off of every
+ other dollar and adding these fractions together to make one
+ dollar. Naturally, we consider this wrong.</p>
+
+ <p>By contrast, copying useful, enlightening or entertaining
+ information for a friend makes the world happier and better off;
+ it benefits the friend, and inherently hurts no one. It is a
+ constructive activity that strengthens social bonds.</p>
+
+ <p>Some readers may question this statement because they know
+ publishers claim that illegal copying causes them "loss." This
+ claim is mostly inaccurate and partly misleading. More
+ importantly, it is begging the question.</p>
+
+ <ul>
+ <li>The claim is mostly inaccurate because it presupposes that
+ the friend would otherwise have bought a copy from the
+ publisher. That is occasionally true, but more often false; and
+ when it is false, the claimed loss does not occur.</li>
+
+ <li>The claim is partly misleading because the word "loss"
+ suggests events of a very different nature--events in which
+ something they have is taken away from them. For example, if
+ the bookstore's stock of books were burned, or if the money in
+ the register got torn up, that would really be a "loss." We
+ generally agree it is wrong to do these things to other people.
+
+ <p>But when your friend avoids the need to buy a copy of a
+ book, the bookstore and the publisher do not lose anything
+ they had. A more fitting description would be that the
+ bookstore and publisher get less income than they might have
+ got. The same consequence can result if your friend decides
+ to play bridge instead of reading a book. In a free market
+ system, no business is entitled to cry "foul" just because a
+ potential customer chooses not to deal with them.</p>
+ </li>
+
+ <li>The claim is begging the question because the idea of
+ "loss" is based on the assumption that the publisher "should
+ have" got paid. That is based on the assumption that copyright
+ exists and prohibits individual copying. But that is just the
+ issue at hand: what should copyright cover? If the public
+ decides it can share copies, then the publisher is not entitled
+ to expect to be paid for each copy, and so cannot claim there
+ is a "loss" when it is not.
+
+ <p>In other words, the "loss" comes from the copyright
+ system; it is not an inherent part of copying. Copying in
+ itself hurts no one.</p>
+ </li>
+ </ul>
+
+ <p>The most widely opposed provision of the White Paper is the
+ system of collective responsibility, whereby a computer owner is
+ required to monitor and control the activities of all users, on
+ pain of being punished for actions in which he was not a
+ participant but merely failed to actively prevent. Tim Sloan
+ <a href="#ft8">[8]</a> pointed out that this gives copyright
+ owners a privileged status not accorded to anyone else who might
+ claim to be damaged by a computer user; for example, no one
+ proposes to punish the computer owner if he fails actively to
+ prevent a user from defaming someone. It is natural for a
+ government to turn to collective responsibility for enforcing a
+ law that many citizens do not believe in obeying. The more
+ digital technology helps citizens share information, the more the
+ government will need draconian methods to enforce copyright
+ against ordinary citizens.</p>
+
+ <p>When the United States Constitution was drafted, the idea that
+ authors were entitled to a copyright monopoly was proposed--and
+ rejected <a href="#ft9">[9]</a>. Instead, the founders of our
+ country adopted a different idea of copyright, one which places
+ the public first<a href="#ft10">[10]</a>. Copyright in the United
+ States is supposed to exist for the sake of users; benefits for
+ publishers and even for authors are not given for the sake of
+ those parties, but only as an inducement to change their
+ behavior. As the Supreme Court said in Fox Film Corp. v. Doyal:
+ "The sole interest of the United States and the primary object in
+ conferring the [copyright] monopoly lie in the general benefits
+ derived by the public from the labors of authors."<a href=
+ "#ft11">[11]</a></p>
+
+ <p>Under the Constitution's view of copyright, if the public
+ prefers to be able to make copies in certain cases even if that
+ means somewhat fewer works are published, the public's choice is
+ decisive. There is no possible justification for prohibiting the
+ public from copying what it wants to copy.</p>
+
+ <p>Ever since the constitutional decision was made, publishers
+ have tried to reverse it by misinforming the public. They do this
+ by repeating arguments which presuppose that copyright is a
+ natural right of authors (not mentioning that authors almost
+ always cede it to publishers). People who hear these arguments,
+ unless they have a firm awareness that this presupposition is
+ contrary to the basic premises of our legal system, take for
+ granted that it is the basis of that system.</p>
+
+ <p>This error is so ingrained today that people who oppose new
+ copyright powers feel the need to do so by arguing that even
+ authors and publishers may be hurt by them. Thus, James
+ Boyle<a href="#ft12">[12]</a> explains how a strict <a href=
+ "later-2">intellectual property system</a> can interfere with
+ writing new works. Jessica Litman<a href="#ft13">[13]</a> cites
+ the copyright shelters which historically allowed many new media
+ to become popular. Pamela Samuelson <a href="#ft14">[14]</a>
+ warns that the White Paper may block the development of
+ "third-wave" information industries by locking the world into the
+ "second-wave" economic model that fit the age of the printing
+ press.</p>
+
+ <p>These arguments can be very effective on those issues where
+ they are available, especially with a Congress and Administration
+ dominated by the idea that "What's good for General Media is good
+ for the USA." But they fail to expose the fundamental falsehood
+ on which this domination is based; as a result, they are
+ ineffective in the long term. When these arguments win one
+ battle, they do so without building a general understanding that
+ helps win the next battle. If we turn to these arguments too much
+ and too often, the danger is that we may allow the publishers to
+ replace the Constitution uncontested.</p>
+
+ <p>For example, the recently published position statement of the
+ Digital Future Coalition, an umbrella organization, lists many
+ reasons to oppose the White Paper, for the sake of authors,
+ libraries, education, poor Americans, technological progress,
+ economic flexibility, and privacy concerns--all valid arguments,
+ but concerned with side issues <a href="#ft15">[15]</a>.
+ Conspicuously absent from the list is the most important reason
+ of all: that many Americans (perhaps most) want to continue
+ making copies. The DFC fails to criticize the core goal of the
+ White Paper, which is to give more power to publishers, and its
+ central decision, to reject the Constitution and place the
+ publishers above the users. This silence may be taken for
+ consent.</p>
+
+ <p>Resisting the pressure for additional power for publishers
+ depends on widespread awareness that the reading and listening
+ public are paramount; that copyright exists for users and not
+ vice versa. If the public is unwilling to accept certain
+ copyright powers, that is ipso facto justification for not
+ offering them. Only by reminding the public and the legislature
+ of the purpose of copyright and the opportunity for the open flow
+ of information can we ensure that the public prevails.</p>
+
+ <p>Copyright 1996 Richard Stallman Verbatim copying and
+ distribution are permitted in any medium provided this notice is
+ preserved.</p>
+
+ <h3>ENDNOTES</h3>
+
+ <p><a id="ft2" name="ft2">[2]</a> Informational Infrastructure
+ Task Force, Intellectual Property and the National Information
+ Infrastructure: The Report of the Working Group on Intellectual
+ Property Rights (1995).</p>
+
+ <p><a id="ft3" name="ft3">[3]</a> John Perry Barlow, Remarks at
+ the Innovation and the Information Environment Conference (Nov.
+ 1995). Mr. Barlow is one of the founders of the Electronic
+ Frontier Foundation, an organization which promotes freedom of
+ expression in digital media, and is also a former lyricist for
+ the Grateful Dead.</p>
+
+ <p><a id="ft4" name="ft4">[4]</a> Gary Glisson, Remarks at the
+ Innovation and the Information Environment Conference (Nov.
+ 1995); see also Gary Glisson, A Practitioner's Defense of the NII
+ White Paper, 75 Or. L. Rev. (1996) (supporting the White Paper).
+ Mr. Glisson is a partner and chair of the Intellectual Property
+ Group at Lane Powell Spears Lubersky in Portland, Oregon.</p>
+
+ <p><a id="ft5" name="ft5">[5]</a> Steven Winter, Remarks at the
+ Innovation and the Information Environment Conference (Nov.
+ 1995). Mr. Winter is a professor at the University of Miami
+ School of Law.</p>
+
+ <p><a id="ft6" name="ft6">[6]</a> Winter, supra note 4.</p>
+
+ <p><a id="ft7" name="ft7">[7]</a> See Laurence H. Tribe, The
+ Constitution in Cyberspace: Law and Liberty Beyond the Electronic
+ Frontier, Humanist, Sept.-Oct. 1991, at 15.</p>
+
+ <p><a id="ft8" name="ft8">[8]</a> Tim Sloan, Remarks at the
+ Innovation and the Information Environment Conference (Nov.
+ 1995). Mr. Sloan is a member of the National Telecommunication
+ and Information Administration.</p>
+
+ <p><a id="ft9" name="ft9">[9]</a> See Jane C. Ginsburg, A Tale of
+ Two Copyrights: Liberary Property in Revolutionary France and
+ America, in, Of Authors and Origins: Essays on Copyright Law 131,
+ 137-38 (Brad Sherman & Alain Strowel, eds., 1994) (stating
+ that the Constitution's framers either meant to "subordinate[]
+ the author's interests to the public benefit," or to "treat the
+ private and public interests...even-handedly.").</p>
+
+ <p><a id="ft10" name="ft10">[10]</a> U.S. Const., art. I, p. 8,
+ cl. 8 ("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.").</p>
+
+ <p><a id="ft11" name="ft11">[11]</a> 286 U.S. 123, 127
+ (1932).</p>
+
+ <p><a id="ft12" name="ft12">[12]</a> James Boyle, Remarks at the
+ Innovation and the Information Environment Conference (Nov.
+ 1995). Mr. Boyle is a Professor of Law at American University in
+ Washington, D.C.</p>
+
+ <p><a id="ft13" name="ft13">[13]</a> Jessica Litman, Remarks at
+ the Innovation and the Information Environment Conference (Nov.
+ 1995). Ms. Litman is a Professor at Wayne State University Law
+ School in Detroit, Michigan.</p>
+
+ <p><a id="ft14" name="ft14">[14]</a> Pamela Samuelson, The
+ Copyright Grab, Wired, Jan. 1996. Ms. Samuelson is a Professor at
+ Cornell Law School.</p>
+
+ <p><a id="ft15" name="ft15">[15]</a> Digital Future Coalition,
+ Broad-Based Coalition Expresses Concern Over Intellectual
+ Property Proposals, Nov. 15, 1995<!-- (available at URL:
<a
href="http://home.worldweb.net/dfc/press.html";>http://home.worldweb.net/dfc/press.html</a>)-->.</p>
-<p>
-<h3>LATER NOTES</h3>
+ <h3>LATER NOTES</h3>
-<p>
-<a id="later-1">
-[1]
-</a>
-This article was part of the path that led me to recognize
-the <a href="/philosophy/not-ipr.xhtml"> bias and confusion in the
-term "intellectual property"</a>. Today I believe that term should
-never be used under any circumstances.</p>
-
-<p>
-<a id="later-2">
-[2]
-</a>
-Here I fell into the fashionable error of writing "intellectual property"
-when what I meant was just "copyright". This is like writing "Europe"
-when you mean "France"--it causes confusion that is easy to avoid.</p>
-
-<hr />
-<h4><a href="/philosophy/philosophy.html">Other Texts to Read</a></h4>
-<hr />
-
-<!-- All pages on the GNU web server should have the section about -->
-<!-- verbatim copying. Please do NOT remove this without talking -->
-<!-- with the webmasters first. -->
-<!-- Please make sure the copyright date is consistent with the document -->
-<!-- and that it is like this "2001, 2002" not this "2001-2002." -->
-
-<div class="translations">
-<p><a id="translations"></a>
-<b>Translations of this page</b>:<br />
-
-<!-- Please keep this list alphabetical, and in the original -->
-<!-- language if possible, otherwise default to English -->
-<!-- If you do not have it English, please comment what the -->
-<!-- English is. If you add a new language here, please -->
-<!-- advise address@hidden and add it to -->
-<!-- - in /home/www/bin/nightly-vars either TAGSLANG or WEBLANG -->
-<!-- - in /home/www/html/server/standards/README.translations.html -->
-<!-- one of the lists under the section "Translations Underway" -->
-<!-- - if there is a translation team, you also have to add an alias -->
-<!-- to mail.gnu.org:/com/mailer/aliases -->
-<!-- Please also check you have the 2 letter language code right versus -->
-<!-- http://www.w3.org/WAI/ER/IG/ert/iso639.htm -->
-
-[
- <a href="/philosophy/reevaluating-copyright.cs.html">Česky</a>
<!-- Czech -->
-| <a href="/philosophy/reevaluating-copyright.de.html">Deutsch</a> <!--
German -->
-| <a href="/philosophy/reevaluating-copyright.html">English</a>
-| <a href="/philosophy/reevaluating-copyright.fr.html">Français</a>
<!-- French -->
-| <a href="/philosophy/reevaluating-copyright.it.html">Italiano</a> <!--
Italian -->
-| <a href="/philosophy/reevaluating-copyright.pl.html">Polski</a> <!--
Polish -->
-| <a
href="/philosophy/reevaluating-copyright.ru.html">Русский</a>
<!-- Russian -->
-]
-</p>
+ <p><a id="later-1" name="later-1">[1]</a> This article was part
+ of the path that led me to recognize the <a href=
+ "/philosophy/not-ipr.xhtml">bias and confusion in the term
+ "intellectual property"</a>. Today I believe that term should
+ never be used under any circumstances.</p>
+
+ <p><a id="later-2" name="later-2">[2]</a> Here I fell into the
+ fashionable error of writing "intellectual property" when what I
+ meant was just "copyright". This is like writing "Europe" when
+ you mean "France"--it causes confusion that is easy to avoid.</p>
+ <hr />
+
+ <h4><a href="/philosophy/philosophy.html">Other Texts to
+ Read</a></h4>
+
+<!--#include virtual="/server/footer.html" -->
+
+<div id="footer">
+ <p>
+ Please send FSF & GNU inquiries to
+ <a href="mailto:address@hidden";><em>address@hidden</em></a>.
+ There are also <a href="http://www.fsf.org/about/contact.html";>other ways
to contact</a>
+ the FSF.
+ <br />
+ Please send broken links and other corrections (or suggestions) to
+ <a href="mailto:address@hidden";><em>address@hidden</em></a>.
+ </p>
+
+ <p>
+ Please see the
+ <a href="/server/standards/README.translations.html">Translations
+ README</a> for information on coordinating and submitting
+ translations of this article.
+ </p>
+
+ <p>
+ Copyright © 1999 Richard M. Stallman
+ <br />
+ Verbatim copying and distribution of this entire article is
+ permitted in any medium without royalty provided this notice is
+ preserved.
+ </p>
+
+ <p>
+ Updated:
+ <!-- timestamp start -->
+ $Date: 2007/03/26 17:06:56 $ $Author: jocke $
+ <!-- timestamp end -->
+ </p>
</div>
-<div class="copyright">
-<p>
-Return to the <a href="/home.html">GNU Project home page</a>.
-</p>
-
-<p>
-Please send FSF & GNU inquiries to
-<a href="mailto:address@hidden";><em>address@hidden</em></a>.
-There are also <a href="/home.html#ContactInfo">other ways to contact</a>
-the FSF.
-<br />
-Please send broken links and other corrections (or suggestions) to
-<a href="mailto:address@hidden";><em>address@hidden</em></a>.
-</p>
-
-<p>
-Please see the
-<a href="/server/standards/README.translations.html">Translations
-README</a> for information on coordinating and submitting
-translations of this article.
-</p>
-
-<p>
-Copyright (C) 1996, 1997, 1998 Free Software Foundation, Inc.,
-51 Franklin St, Fifth Floor, Boston, MA 02110, USA
-<br />
-Verbatim copying and distribution of this entire article is
-permitted in any medium without royalty provided this notice is
-preserved.
-</p>
-
-<p>
-Updated:
-<!-- timestamp start -->
-$Date: 2006/04/06 07:54:28 $ $Author: wkotwica $
-<!-- timestamp end -->
-</p>
-</div>
+<div id="translations">
+ <h4>Translations of this page</h4>
+ <!-- Please keep this list alphabetical, and in the original -->
+ <!-- language if possible, otherwise default to English -->
+ <!-- If you do not have it English, please comment what the -->
+ <!-- English is. If you add a new language here, please -->
+ <!-- advise address@hidden and add it to -->
+ <!-- - in /home/www/bin/nightly-vars either TAGSLANG or WEBLANG -->
+ <!-- - in /home/www/html/server/standards/README.translations.html -->
+ <!-- one of the lists under the section "Translations Underway" -->
+ <!-- - if there is a translation team, you also have to add an alias -->
+ <!-- to mail.gnu.org:/com/mailer/aliases -->
+ <!-- Please also check you have the 2 letter language code right versus -->
+ <!-- http://www.w3.org/WAI/ER/IG/ert/iso639.htm -->
+
+ <ul class="translations-list">
+ <li><a href="/philosophy/reevaluating-copyright.cs.html">Äesky</a></li>
+ <li><a href="/philosophy/reevaluating-copyright.de.html">Deutsch</a></li>
+ <li><a href="/philosophy/reevaluating-copyright.html">English</a></li>
+ <li><a href="/philosophy/reevaluating-copyright.fr.html">Français</a></li>
+ <li><a href="/philosophy/reevaluating-copyright.it.html">Italiano</a></li>
+ <li><a href="/philosophy/reevaluating-copyright.pl.html">Polski</a></li>
+ <li><a href="/philosophy/reevaluating-copyright.ru.html">Ð
ÑÑÑкий</a></li>
+ </ul>
+
+</div>
+</div>
+</div>
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