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www/philosophy misinterpreting-copyright.html
|
From: |
Richard M. Stallman |
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Subject: |
www/philosophy misinterpreting-copyright.html |
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Date: |
Fri, 16 Oct 2009 03:52:00 +0000 |
CVSROOT: /webcvs/www
Module name: www
Changes by: Richard M. Stallman <rms> 09/10/16 03:52:00
Modified files:
philosophy : misinterpreting-copyright.html
Log message:
Add missing part of title.
A few small rewrites and updates.
Add some links.
CVSWeb URLs:
http://web.cvs.savannah.gnu.org/viewcvs/www/philosophy/misinterpreting-copyright.html?cvsroot=www&r1=1.22&r2=1.23
Patches:
Index: misinterpreting-copyright.html
===================================================================
RCS file: /webcvs/www/www/philosophy/misinterpreting-copyright.html,v
retrieving revision 1.22
retrieving revision 1.23
diff -u -b -r1.22 -r1.23
--- misinterpreting-copyright.html 6 Jan 2009 23:22:41 -0000 1.22
+++ misinterpreting-copyright.html 16 Oct 2009 03:51:53 -0000 1.23
@@ -1,7 +1,7 @@
<!--#include virtual="/server/header.html" -->
<title>Misinterpreting Copyright - GNU Project - Free Software Foundation
(FSF)</title>
<!--#include virtual="/server/banner.html" -->
-<h2>Misinterpreting Copyright</h2>
+<h2>Misinterpreting Copyright—A Series of Errors</h2>
<!-- This document uses XHTML 1.0 Strict, but may be served as -->
<!-- text/html. Please ensure that markup style considers -->
@@ -15,22 +15,22 @@
<p>
Something strange and dangerous is happening in copyright law. Under
-the U.S. Constitution, copyright exists to benefit users — those
+the US Constitution, copyright exists to benefit users — those
who read books, listen to music, watch movies, or run software —
not for the sake of publishers or authors. Yet even as people tend
increasingly to reject and disobey the copyright restrictions imposed
-on them “for their own benefit,” the U.S. government is
+on them “for their own benefit,” the US government is
adding more restrictions, and trying to frighten the public into
obedience with harsh new penalties.</p>
<p>
How did copyright policies come to be diametrically opposed to their
stated purpose? And how can we bring them back into alignment with that
purpose? To understand, we should start by looking at the root of
-United States copyright law: the U.S. Constitution.</p>
+United States copyright law: the US Constitution.</p>
-<h3>Copyright in the U.S. Constitution</h3>
+<h3>Copyright in the US Constitution</h3>
<p>
-When the U.S. Constitution was drafted, the idea that authors were
+When the US Constitution was drafted, the idea that authors were
entitled to a copyright monopoly was proposed — and rejected.
The founders of our country adopted a different premise, that
copyright is not a natural right of authors, but an artificial
@@ -44,8 +44,8 @@
</p></blockquote>
<p>
The Supreme Court has repeatedly affirmed that promoting progress means
-benefit for the users of copyrighted works. For example, in Fox Film
-v. Doyal, the court said,</p>
+benefit for the users of copyrighted works. For example, in <em>Fox Film
+v. Doyal<em>, the court said,</p>
<blockquote><p>
The sole interest of the United States and the primary object in
conferring the [copyright] monopoly lie in the general benefits
@@ -70,7 +70,7 @@
spends the public's natural rights, on the public's behalf, as part of
a deal to bring the public more published works. Legal scholars call
this concept the “copyright bargain.” It is like a
-government purchase of a highway or an airplane using taxpayer's
+government purchase of a highway or an airplane using taxpayers'
money, except that the government spends our freedom instead of our
money.</p>
<p>
@@ -96,11 +96,11 @@
The copyright bargain places the public first: benefit for the reading
public is an end in itself; benefits (if any) for publishers are just
a means toward that end. Readers' interests and publishers' interests
-are qualitatively unequal in priority. The first step in
+are thus qualitatively unequal in priority. The first step in
misinterpreting the purpose of copyright is the elevation of the
publishers to the same level of importance as the readers.</p>
<p>
-It is often said that U.S. copyright law is meant to “strike a
+It is often said that US copyright law is meant to “strike a
balance” between the interests of publishers and readers. Those
who cite this interpretation present it as a restatement of the basic
position stated in the Constitution; in other words, it is supposed to
@@ -109,8 +109,8 @@
But the two interpretations are far from equivalent; they are
different conceptually, and different in their implications. The
balance concept assumes that the readers' and publishers' interests
-differ in importance only quantitatively, in “how much
-weight” we should give them, and in what actions they apply to.
+differ in importance only quantitatively, in <em>how much
+weight</em> we should give them, and in what actions they apply to.
The term “stakeholders” is often used to frame the issue
in this way; it assumes that all kinds of interest in a policy
decision are equally important. This view rejects the qualitative
@@ -134,7 +134,7 @@
publishers to convince the readers to cede certain freedoms. The
concept of balance reverses this burden, practically speaking, because
there is generally no doubt that publishers will benefit from
-additional privilege. So unless harm to the readers can be proved,
+additional privilege. Unless harm to the readers can be proved,
sufficient to “outweigh” this benefit, we are led to
conclude that the publishers are entitled to almost any privilege they
request.</p>
@@ -186,7 +186,7 @@
to stand as shorthand for the idea of “striking a balance”
between the readers and the publishers. Therefore, to use the word
“balance” in regard to the readers' two interests would be
-confusing — we need another term.</p>
+confusing. We need another term.</p>
<p>
In general, when one party has two goals that partly conflict, and
cannot completely achieve both of them, we call this a
@@ -208,12 +208,12 @@
other purchases, by buying only what we need of any particular good, and
choosing a model of sufficient rather than highest quality. The
principle of diminishing returns suggests that spending all our money on
-one particular good is likely to be inefficient allocation of resources;
+one particular good is likely to be an inefficient allocation of resources;
we generally choose to keep some money for another use.</p>
<p>
Diminishing returns applies to copyright just as to any other purchase.
The first freedoms we should trade away are those we miss the least,
-while giving the largest encouragement to publication. As we trade
+and whose sacrifice gives the largest encouragement to publication. As we
trade
additional freedoms that cut closer to home, we find that each trade is
a bigger sacrifice than the last, while bringing a smaller increment in
literary activity. Well before the increment becomes zero, we may well
@@ -236,12 +236,12 @@
with attacking a ship. (This smear term was formerly used by authors
to describe publishers who found lawful ways to publish unauthorized
editions; its modern use by the publishers is almost the reverse.)
-This rhetoric directly rejects the Constitutional basis for copyright,
+This rhetoric directly rejects the constitutional basis for copyright,
but presents itself as representing the unquestioned tradition of the
American legal system.</p>
<p>
The “pirate” rhetoric is typically accepted because it
-blankets the media so that few people realize that it is radical. It
+so pervades the media that few people realize how radical it is. It
is effective because if copying by the public is fundamentally
illegitimate, we can never object to the publishers' demand that we
surrender our freedom to do so. In other words, when the public is
@@ -250,7 +250,7 @@
copy” — is disqualified in advance.</p>
<p>
This leaves no way to argue against increasing copyright power except
-using side issues. Hence opposition to stronger copyright powers today
+using side issues. Hence, opposition to stronger copyright powers today
almost exclusively cites side issues, and never dares cite the freedom
to distribute copies as a legitimate public value.</p>
<p>
@@ -260,7 +260,7 @@
some unknown amount, and therefore it should be prohibited.” We
are led to the outrageous conclusion that the public good is measured
by publishers' sales: What's good for General Media is good for the
-U.S.A.</p>
+USA.</p>
<h3>The third error: maximizing publishers' power</h3>
<p>
@@ -272,11 +272,11 @@
equivalent effect. This goal, which entails the abolition of
“fair use” and the “right of first sale,” is
being pressed at every available level of government, from states of
-the U.S. to international bodies.</p>
+the US to international bodies.</p>
<p>
This step is erroneous because strict copyright rules obstruct the
creation of useful new works. For instance, Shakespeare borrowed the
-plots of some of his plays from other plays published a few decades
+plots of some of his plays from works others had published a few decades
before, so if today's copyright law had been in effect, his plays would
have been illegal.</p>
<p>
@@ -304,7 +304,7 @@
works of authorship.
</p></blockquote>
<p>
-This bill extended the copyright on already-published works written
+This bill extended the copyright on already published works written
since the 1920s. This change was a giveaway to publishers with no
possible benefit to the public, since there is no way to retroactively
increase now the number of books published back then. Yet it cost the
@@ -315,8 +315,8 @@
works made for hire, copyright would last 95 years instead of the
present 75 years. Theoretically this would increase the incentive to
write new works; but any publisher that claims to need this extra
-incentive should substantiate the claim with projected balance sheets
-for the year 2075.</p>
+incentive should be required substantiate the claim with projected
+balance sheets for 75 years in the future.</p>
<p>
Needless to say, Congress did not question the publishers' arguments: a
law extending copyright was enacted in 1998. It was called the Sonny
@@ -333,13 +333,15 @@
Congress.
</p></blockquote>
<p>
-The Supreme Court has agreed to hear a case that seeks to overturn the
-law on the grounds that the retroactive extension fails to serve the
-Constitution's goal of promoting progress.</p>
+The Supreme Court later heard a case that sought to overturn the law
+on the grounds that the retroactive extension fails to serve the
+Constitution's goal of promoting progress. The court responded by
+abdicating its responsibility to judge the question; on copyright, the
+Constitution requires only lip service.</p>
<p>
-Another law, passed in 1996, made it a felony to make sufficiently many
+Another law, passed in 1997, made it a felony to make sufficiently many
copies of any published work, even if you give them away to friends just
-to be nice. Previously this was not a crime in the U.S. at all.</p>
+to be nice. Previously this was not a crime in the US at all.</p>
<p>
An even worse law, the Digital Millennium Copyright Act (DMCA), was
designed to bring back copy protection (which computer users detest)
@@ -352,27 +354,28 @@
work contains some sort of encryption or license manager to enforce
them.</p>
<p>
-One of the arguments offered for this bill was that it would implement a
-recent treaty to increase copyright powers. The treaty was promulgated
-by the World Intellectual Property Organization, an organization
-dominated by copyright-holding and patent-holding interests, with the
-aid of pressure from the Clinton administration; since the treaty only
-increases copyright power, whether it serves the public interest in any
-country is doubtful. In any case, the bill went far beyond what the
-treaty required.</p>
+One of the arguments offered for this bill was that it would implement
+a recent treaty to increase copyright powers. The treaty was
+promulgated by the World <a href="not-ipr.html">Intellectual
+Property</a> Organization, an organization dominated by
+copyright- and patent-holding interests, with the aid of
+pressure from the Clinton administration; since the treaty only
+increases copyright power, whether it serves the public interest in
+any country is doubtful. In any case, the bill went far beyond what
+the treaty required.</p>
<p>
Libraries were a key source of opposition to this bill, especially to
the aspects that block the forms of copying that are considered
“fair use.” How did the publishers respond? Former
representative Pat Schroeder, now a lobbyist for the Association of
American Publishers, said that the publishers “could not live
-with what [the libraries are] asking for.” Since the libraries
+with what [the libraries were] asking for.” Since the libraries
were asking only to preserve part of the status quo, one might respond
by wondering how the publishers had survived until the present
day.</p>
<p>
Congressman Barney Frank, in a meeting with me and others who opposed
-this bill, showed how far the U.S. Constitution's view of copyright
+this bill, showed how far the US Constitution's view of copyright
has been disregarded. He said that new powers, backed by criminal
penalties, were needed urgently because the “movie industry is
worried,” as well as the “music industry” and other
@@ -411,7 +414,7 @@
<p>
Anyone independently releasing software that can read restricted
e-books risks prosecution. A Russian programmer, Dmitry Sklyarov, was
-arrested in 2001 while visiting the U.S. to speak at a conference,
+arrested in 2001 while visiting the US to speak at a conference,
because he had written such a program in Russia, where it was lawful
to do so. Now Russia is preparing a law to prohibit it too, and the
European Union recently adopted one.</p>
@@ -434,7 +437,7 @@
Standards and Certification Act”
(SSSCA)<a href="#footnote1">[1]</a>, which would require all computers
(and other digital recording and playback devices) to have
-government-mandated copy restriction systems. That is their ultimate
+government-mandated copy-restriction systems. That is their ultimate
goal, but the first item on their agenda is to prohibit any equipment
that can tune digital HDTV unless it is designed to be impossible for
the public to “tamper with” (i.e., modify for their own
@@ -556,7 +559,7 @@
It would be necessary to prohibit the use of contracts to apply
restrictions on copying that go beyond those of copyright. Such
limitations on what mass-market nonnegotiated contracts can require
-are a standard part of the U.S. legal system.</p>
+are a standard part of the US legal system.</p>
<h3>A personal note</h3>
<p>
@@ -565,9 +568,10 @@
computer networks <a href="#footnote3">[3]</a>. As a user of
computers and networks for thirty years, I value the freedoms that we
have lost, and the ones we may lose next. As an author, I can reject
-the romantic mystique of the author as semidivine creator, often cited
-by publishers to justify increased copyright powers for authors, which
-authors will then sign away to publishers.</p>
+the romantic mystique of the author as semidivine
+<a href="words-to-avoid.html#Creator">creator</a>, often cited
+by publishers to justify increased copyright powers for authors—powers
+which these authors will then sign away to publishers.</p>
<p>
Most of this article consists of facts and reasoning that you can
check, and proposals on which you can form your own opinions. But I ask
@@ -586,7 +590,8 @@
Act.”</li>
<li>
<a id="footnote2"></a>If you would like to help, I recommend the Web
-sites <a href="http://publicknowledge.org";>publicknowledge.org</a>
+sites <a href="http://defectivebydesign.org";>DefectiveByDesign.org</a>,
+<a href="http://publicknowledge.org";>publicknowledge.org</a>
and <a href="http://www.eff.org";>www.eff.org</a>.</li>
<li>
<a id="footnote3"></a>The Internet being the largest of the world's
@@ -638,7 +643,7 @@
<p>
Updated:
<!-- timestamp start -->
-$Date: 2009/01/06 23:22:41 $
+$Date: 2009/10/16 03:51:53 $
<!-- timestamp end -->
</p>
</div>
- www/philosophy misinterpreting-copyright.html,
Richard M. Stallman <=