Fixing Copyright

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    Fixing CopyrightLaurence Garfield, Nathan Hampton, Jeromy Stark

    "The Congress shall have power ... To promote the progress of science and useful arts, bysecuring 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 changesto the law have altered the implementation of this protection in ways that fail to serve itsconstitutionally 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 ofworks 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

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    The Importance of Copyright

    With the advance of technology, our economy has become increasingly dependent on thestorage, transfer, and manipulation of information. As a result, issues relating to copyright aretaking on a greater importance. However, the same technological advances have madeviolations of these protections much easier to achieve, sometimes to the point of requiringonly a trivial amount of effort.

    These forces have created two competing viewpoints in our society. The first viewpoint istypically associated with the creators and distributors of copyrighted works, and holds that therelative simplicity of violating a copyright requires strengthening of copyright laws andincreasing the severity of punishments for such violations. Opposed to this is the idea thattechnological advances have made the concept of copyright protection obsolete,necessitating the abolishment of the legal structures which enforce those protections. Thebattle between these views has become prominent in recent years, with both sides usingincreasingly 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 fiveways 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 inwhich we live, the clothing we wear, and the food we eat are made of matter - "[s]omethingthat occupies space and displays the properties of inertia and gravitation...." [1] Energy is notas easily perceived, but it is also inextricably linked with our day-to-day existence. Electricalenergy powers lights, televisions, and other devices, and our bodies convert the food we eatinto the energy used to eat, drink, play, and work.

    Despite the vast amount of matter and energy in the universe, that matter and energy arefinite resources. We can change the form of matter and energy and use that matter or energyto serve our needs, but we cannot create or destroy matter and energy. We can even convertmatter to energy (and vice-versa), but the sum amount of matter and energy in the universeremains the same.

    Because matter and energy are finite resources, they are governed by what economists callthe Law of Scarcity. In layman's terms, the Law of Scarcity states that there is not enough foreveryone to have as much as they want of everything, so we give up one scarce resource inexchange for another at various times. To facilitate this basic principle, most human societieshave 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 cannotwave a magic wand and turn one hammer into two and let you have one of them. If I give youmy hammer, then for as long as you have it I cannot drive nails with it. And if I own thathammer, then I have, by law, complete and total control over whether or not I permit anyoneelse to drive nails with it. It is entirely at my whim to decide how or even if it is used, because Ihave physical control over it. If I surrender ownership of that hammer to you, however, then Ialso give up any and all control over how and by whom that hammer may be used.

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    Consider, now, the concept of information: a particular pattern of matter and/or energy towhich a sentient being assigns a meaning. Like energy, information is intangible, though itmay be recorded in a tangible form. Unlike energy, however, information is infinite. If I havesome bit of information - the sky is blue, for example - I can share that information with youwithout giving up anything that I have. In fact, I can share that information with everyone Imeet without diluting my own ability to use that information. As a result, the laws of scarcityand property do not apply. They simply do not make sense, because information is, by it'svery 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. Becauseinformation is non-scarce, the 'normal' laws of economics state that it has no value, astatement which is patently false. Obviously, however, information does have value. The valueof information may be pragmatic or aesthetic, but in all cases, the value produced by thatinformation 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. Theinherent value information has for society as a whole is significant, but the inherent value ofinformation 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, theproduction of information consumes scarce resources. While some might produce informationsolely for their personal satisfaction or out of a genuine sense of social benefit, their ability todo so is limited both by laws of economics, which require them to earn an income, and bylaws of biology, which require them to eat.

    What is Copyright?

    To address these issues, Western nations developed two systems to encourage the creationof information: patents and copyrights. Patents, which we will not address here, encouragethe development of materials which have a pragmatic benefit to society; the inventor istemporarily given virtually unlimited authority to control who may and may not make use ofher invention, in order that he may exact economic rewards from people for its use as anincentive for her to create the invention in the first place. In return, the invention enters thepublic 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 awork is, as an incentive, granted certain exclusive rights for a limited period of time duringwhich 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 belowfor more details).

    The Current Status of Copyright

    The writers of the U.S. Constitution were aware of both the social benefits of information andthe 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 ofscience [3] and useful arts, by securing for limited times to authors and inventors the

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    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 grantthe creator of a work the exclusive right

    "To reproduce the work in copies or phonorecords; To prepare derivative works based uponthe work; To distribute copies or phonorecords of the work to the public by sale or othertransfer 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 andother audiovisual works; To display the copyrighted work publicly, in the case of literary,musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculpturalworks, including the individual images of a motion picture or other audiovisual work; and Inthe case of sound recordings, to perform the work publicly by means of a digital audiotransmission." [4]

    Copyright protection commences "from the time the work is created in fixed form," and lastsfor 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 copyrightnotices are not required for protection, but provide additional legal protection againstviolations of copyright. [4]

    The first copyright law passed under the U.S. Constitution (1790) provided a fourteen yearterm of copyright with the option to renew for an additional fourteen years. In 1831, the initialterm 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 thecopyright term to the life of the author plus 50 years. Anonymous works and works-for-hirewere granted a term of 75 years from publication or 100 years from creation. These termswere extended an additional twenty years in 1998. [5]

    However, the current length of copyright protection exceeds the amount of time needed toadequately "promote the progress of science and useful arts." In fact, the length of currentcopyright terms is directly contrary to the achievement of the public benefit intended by theConstitutional provision for copyright protection.

    As we have previously seen, the purpose of copyright is to encourage the creation of newworks. The longer a copyright is in effect, the more time the creator will have to gain theassociated economic benefits, which would result in the creator deriving the maximum benefitfrom his or her work, thus maximizing the incentive to create. Why, then, should we notextend copyright terms as long as possible to ensure maximum incentive? We should not onlysupport the current term, but consider extending it further!

    This argument is both logical and internally consistent. However, there is one problem. As theold axiom goes, "dead men tell no tales." No known incentive (of any type) can motivate adeceased person to create new work because, to the best of our knowledge, no deceasedperson 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 copyrightprotection which exceeds the lifetime of the creator is inherently unreasonable, and will notserve 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 theirbenefit to society. As a result, copyright protection is defined as limited, both Constitutionallyand logically. If copyright protection is for an excessive term, the public benefit derived fromthat work will be reduced, causing the copyright system to work against the benefit of society,

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    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 forlonger terms falls under close scrutiny. If a work no longer has economic value to its creator, itcannot reasonably be argued that maintaining copyright protection for that work provides anysort of incentive to its creator. To ensure maximum public benefit, a work should enter thepublic 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 anindividual work would enter the public domain on that occasion, but the administrativerequirements 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 thisrule impractical. Rather, we should determine the approximate length for which copyrightedworks of a certain class retain their value, and base the length of copyright on thatinformation.

    "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 includedin the category 'literary works.' Computer software would be defined as "A series of abstractinstructions to be implemented by a computational device".

    Unfortunately, the data on this matter is scarce. However, a 1998 report from theCongressional 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] Giventhis research, and in the absence of further data, a non-renewable term of no more than 50years, which shall not extend beyond the natural life of the creator, is a reasonable balancebetween public interest and private incentive for most types of copyrightable works. However,this number should be reconsidered if further studies demonstrate a shorter commercial lifespan 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 unreasonablebecause the high rate of advances in computing technology make most programs obsoletewithin ten years of publication, with many becoming obsolete within five years. Keeping inmind 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 inquestion falls under the terms of the dead work exception.

    Given the concerns presented above, we believe that these proposed terms for copyrightprotection are reasonable and consistent with both the underlying principles of copyright andthe legal framework of the U.S. Constitution.

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    Limit the Transferability of Copyrights

    Imagine, a small company created a road. It set up a tollbooth and controlled who had accessto 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. Asthe company grew, it created more roads and acquired even more. Eventually, it became atransportation empire. People could no longer travel as freely as before. The company woulddecide 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 freelyavailable like their ancestors.

    Essentially, this is how the copyright system has developed. Under present law, copyrightsare treated like personal property. They are subject to the normal laws of ownership and thuscan 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. Forthe creator of a work to take advantage of his limited monopoly, distribution of the work isnecessary. The corporate empires controlling the distribution networks, however, insist thatthe creator sign over his copyright to the company before allowing that author to utilize itsdistribution network. As a result, the creator of a work is unable to control the use anddistribution of his work because it is, legally, no longer his to control; it is the property of thecorporation. The result has been a vast accumulation of "intellectual property" in the hands ofa 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 (betterknown 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 oneexpects to see in that situation. This power has continued to increase, leading some todescribe the trade associations as "copyright cartels." The situation which has developed hasclearly defeated the central purpose of copyright: benefit to society.

    However, there are changes that can be made to copyright laws to impair the feasibility ofsuch tactics. First, the aforementioned limits on the terms of copyright protection will limit thelength of time the distribution can be tightly controlled by incestuous oligarchies. Another is tolimit the transferability of copyright ownership. Rather than permitting copyrights to be boughtand sold, the creator of a work (or, in the case of works-for-hire, the employer) would be theonly person entitled to copyright protection. This would not, of course, prohibit the creatorfrom 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 theirwork, in addition to monitoring for and litigating against copyright violations. Given thepotential size and complexity of these tasks in modern society, this preference is bothcompletely understandable and unquestionably reasonable. The prohibition against transferof copyright would not exclude such contractual relationships, nor would it prevent exclusivityin such arrangements. However, the right of the creator to terminate such arrangementswould need to be protected by law to prevent a rather significant loophole.

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    By ensuring that copyright protection cannot be separated from the creator of a work, we willguarantee 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

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    his copyrighted work. That right is established by the Constitution. However, the Constitutionalso ensures to all people the right of free speech, that is, the spreading of information. It isalso understood that copyright is not an ends in itself; it is a means to an ends, those endsbeing to promote the progress of science and the useful arts. As such, there are cases wherecopyright should not apply. Judicial decisions over the years acknowledged this apparentcontradiction, and established the concept of "Fair Use".

    Fair use was codified in 1976 in Section 107 of copyright law [10], which stated thatduplicating 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 ina 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 andscholarship 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 isinfringing. Specifically, it provides guidelines for fair use that "shall include -

    the purpose and character of your use, including whether such use is of a commercialnature 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 asa 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 hasprovided a copy of his work to another, the receiver is free to transfer, sell, or grant that copyto another without requiring the permission of the copyright holder. That is, the copyrightholder loses control over the non-duplicative use of the work after the "first sale". The activeused 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 ordestroyed.

    Since the copyright act, the courts have established other fair use rights based on theguidelines 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 toanother 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 thatreason. 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 significantlyreduce the commercial viability of the copyrighted work, and thus do not decrease thecopyright holder's incentive to create more works and thereby promote the progress ofscience and the useful arts.

    However, in recent years a disturbing trend has developed, especially in the digital realm butin other fields as well. Some copyright holders have begun to force users to surrender theirfair use rights by means of license agreements or contracts. Others have begun implementingso-called "Digital Rights Management" (DRM) systems, which control access to a work and

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    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 duringprogram installation), often require the user to give up certain fair use rights in order to usethe 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 oftendifficult if not impossible. Most stores have no-return policies on opened software, and there isno 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 upvarious fair use right or limit the ways in which the user may use or dispose of the workbeyond the limits imposed by copyright. For example, recent versions of the Microsoftdevelopment tools include a license agreement that forbids the user from writing software thatcompetes with certain Microsoft products. Other licenses from a growing number of softwarecompanies require the user to grant the copyright holder the ability to remotely monitor theusage of the copyrighted work, and even modify the configuration of the user's computerwithout 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 licenseagreements, required to surrender some of those rights. The concept of requiring someone tocontractually surrender a right is itself a questionable practice at best, but even more so whenit is a question of abuse of monopoly power. (Recall that all copyrights are a governmentgranted monopoly.) It is even more questionable when the stated purpose of the monopoly isto "promote the progress of science and the useful arts." Fair use rights, by definition, arethose that do not impede the progress of science and the useful arts. Restricting them goesagainst the stated purposed of copyrights in the Constitution.

    There is also the larger problem that such license agreements effectively circumvent federallaw. Copyright law provides for various fair use rights, but if they must be contractuallysurrendered in order for a person to even gain access to a copyrighted work, the the lawbecomes 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 tosurrender any rights or rights of usage under the provisions of Title 17 of the U.S. Code (orany successor statute), including fair use, by means of contract, license, or other legalagreement.

    Immortality Upon DeathThe 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 oftheir creations, so that they may exact financial benefit from those that receive it. That is, itcreates an artificial environment in which one can "sell" information.

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    The system itself is reasonably sound. By inducing a market for information before it falls tothe public domain, it creates an environment in which authors are able to profit from thedistribution of their work, and thereby encourages them to create more information so thatthey may gain greater profit.

    However, there is a point at which the cost of distribution becomes too great compared to thelikely 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 mostof those who wish copies have one. (Information, it should be remembered, is not aconsumable good.) It could be that the cost of producing the media upon which the work isaffixed has increased. In either case, the work has ceased to be financially valuable to thecopyright holder. Or it could be that the copyright holder, for whatever reason, has simplydecided he does not wish to continue to distribute the work. Whether it be due to a decreasein 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 expirationof the copyright term.

    The terminology for such a condition varies with the type of work. For books and movies, thework 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 copyrightholder 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 forsome period of time.

    Dead works are in fact quite common, especially with the century-plus term of moderncopyrights. Using the willingness of the copyright holder to publish the work for profit as astandard 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 thework protected under copyright has been declared valueless to the copyright holder, by virtueof his unwillingness to exact profit from it. While the percentage of work still available throughcommercial channels is likely higher for more recent works, there is still a substantial portionof 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 copyrightholder by means of distribution does not mean that the work itself is entirely valueless. Anintegral part of copyright is that works eventually become part of the public domain, because itis understood that works in the public domain have a value to the entire society. That value ismultifaceted. It can serve as a historical and cultural archive of the society and its history. Itcan serve as the inspiration for the creation of new works (including "derivative works"). It canbe 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 goodthing," and the more people have information the more good a thing it is). In any case, while awork 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 financialreasons to no longer distribute are of greater value and better promote the progress ofscience 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 publicknowledge. A large quantity of copyrighted information from the late 1930s and 1940s is still

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    protected under copyright, yet is not publicly available. Most of these works are copyrightedby large movie studios (including Disney and TimeWarner), and was produced in the UnitedStates during World War II as pro-war propaganda films. Such works include both live actionand 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 WarnerBrothers 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 anddamaging to the company's chosen corporate image. [15] Many such works are stored onolder celluloid technology, and the film itself is quite literally rotting away in vaults. Givencurrent 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 thesociety 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 scientificworks. 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 ofscience and the useful arts.

    Second, the purpose of having copyright be limited term is to ensure that there is a rich publicdomain, once the copyright has expired. If the work ceases to exist, then it does not fall intothe public domain, and the public domain is thus reduced. Additionally, while works such asthose 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 thesociety 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 progressof science and the useful arts if unrestricted.

    In both the financially-based and non-financially-based cases, the copyright holder haschosen to not exercise his exclusive distribution rights granted by copyright. Therefore, he isderiving no profit from it, and therefore no incentive to create additional works. For others todistribute the work, then, in no way reduces the copyright holder's potential or actualrecompense from the works, as the recompense is already zero by virtue of the copyrightholder's own actions. However, as previously shown, there is a benefit to society and to theprogress 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 theprogress 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 progressof 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 clausewould establish the following conditions:

    If the copyright holder of a work, having distributed said work to receiving parties, choses forwhatever reason to cease distribution of said work to any parties for X period of time, all

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    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 allparties receiving the work in such a manner shall similarly not be restricted. Should thecopyright holder cease to distribute said work to any parties for Y period of time, all partieshaving already received said work shall not be restricted in any way whatsoever fromredistributing 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 factthat dead works are sometimes "resurrected," and brought back into circulation forcommercial purposes by the copyright holder. There are many possible reasons for such achange, including market forces, new distribution mechanisms, and so forth. Whatever thereason, it is beneficial to the copyright holder to be able to take advantage of newcircumstances. However, such circumstances are not always forthcoming, and in such a casethe public domain should not be deprived of the work that the author has deemed not worthdistributing himself, thus the two-stage time period.

    Naturally there are details that must be considered in greater depth before such a policy canbe implemented, specifically the precise terms of time periods X and Y, and exactly whatactions 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 dependenton 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 asdistributed is already in the format best suited to redistribution and the creation of derivativeworks. 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 workused for its creation is necessarily converted into another "use" form prior to distribution. Thebest example would be software, which is typically "compiled" from source code intocomputer code. The source code form is clearly the form intended for editing, while thecomputer code version is, in most cases, extremely difficult if not impossible to reliablydecipher back into an editable form.

    In the case of works where the editable and use forms are the same, there is no difficulty. Inthe case of works where the editable and use forms are not the same, however, there exists aproblem 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 bepermitted 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 thepublic domain, it is still essentially useless without the editable form. The copyright holder isthen, 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 problemexists regardless of whether the work has become part of the public domain due to theexpiration of the copyright term or due to the proposed changes above.

    There are multiple possible solutions to the problem. Firstly, distribution of a copyrighted workcould require the inclusion of the editable form, if the editable form should be different thanthe use form. Secondly, once a work has been declared "dead" the copyright holder could becompelled to release the editable form upon request. Thirdly, the copyright holder could becompelled to deposit a copy of the editable form of the work with an escrow agent, most likelythe copyright office, in order to receive a copyright for said work, and the escrow agent would

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    then issue copies of the editable form upon request.

    The first method, while implementable and in fact the most consistent with other types ofworks, would meet with considerable resistance. The second method is impractical, as itrequires the copyright holder to maintain a copy of the editable form of the work and a systemfor providing it upon request, even after the copyright holder has made it clear that the work iswithout 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 theinception of copyright in the United States through the Copyright Act of 1976. That act, for thefirst time, established "automatic copyright" on works and removed the requirement for theregistration of a work in order to receive copyright protection. That policy is inconsistent andunmaintainable, not only with these proposed alterations to copyright but with the very natureof any work that has different editable and use forms and will someday pass into the publicdomain. In order to implement the proposed changes, as well as to protect the public domaineven under the present system, that change should be reversed, and both registration anddeposit of copyrighted works must be required of potential copyright holders.

    Digital Public Domain ManagementOne 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 anyoneto access and use without restriction, because it is "unowned." The former copyright holderhas no right or permission to in any way restrict the access, distribution, or use of the work inquestion after it has entered the public domain.

    That system is a good one, in that it acknowledges that information has value to the publicwhen it is unrestricted, even if its value as a pseudo-product to the copyright holder hasdiminished. However, it relies on a number of assumptions that have, in recent years, begunto change for both technical and political reasons. Copyright law must be amended, not toencourage those changes, but to ensure that the fundamental system and protections of

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    copyright remain intact despite them.

    The first issue is technological. New forms of creative work have come into existence inrecent 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 iswritten 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 thework is still under copyright. The editable form is rarely made available. [see also ImmortalityUpon Death]

    The other issue is more political than technological. In the past decade, more and moreinformation has become available primarily or exclusively in digital form. Digital form offers anumber of advantages for copyright holders over analog distribution mechanisms, amongthem 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 digitalcopies of works also make more feasible mass copyright violation, as duplicating andredistributing 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 formof their works prior to distribution using a private-key system. The company then holdsexclusive access over the decryption key, which it licenses as a trade secret to selectedpartners to build "closed box" decryption devices in order to access and play back the workso-encrypted. Those closed box decryption devices then have limited features, which do notallow the user to perform certain functions that would, in the eyes of the company holdingaccess to the decryption key, be beneficial to copyright violation.

    Many of these systems are in fact rather trivial, and in practice any private-key encryptionmechanism will be broken sooner or later; history indicates that it generally happens soonerrather than later. Understanding that fact, such copyright holding companies pushed for andreceived a new law in the United States in 1998, known as the Digital Millennium CopyrightAct (DMCA). The DMCA, among other things, makes it a federal felony to break such anencryption system to gain access to the work in a manner not authorized by the copyrightholder. The purported intent is to make the illegal mass-distribution of copyrighted worksdifficult 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 firsttime the concept of "access rights," which have no fair use exemptions. Thus, a company orcopyright holder may require a receiver of a copyrighted work to agree to certain terms to gainaccess to the work in the first place, terms that effectively restrict fair use, even though oncethe receiver has obtained access he technically would have said fair use rights. To gainaccess to the work by any other means, thus "breaking" the DRM encryption system, is afelony. [8]

    As a non-digital example for clarification, suppose that a company chose to publish a paperbook, 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 ofred cellophane that, when held over the page, blanks out the red words and makes the pagereadable. However, only the book publisher may authorize others to make or sell redcellophane strips, and in order to obtain a red cellophane strip the reader must contractuallyagree to, for instance, not read the book aloud to others. While it would work just as well to

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    use a red highlighter on the paper, which would similarly "decrypt" the text on the page, that isconsidered circumventing the access control mechanism (the red overlay text), and is underthe DMCA illegal.

    Additionally, such measures do not address wide-scale copyright infringement, their purportedgoal. Mass illegal duplication and redistribution of the work does not, in fact, requiredecrypting 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 ofthe book and then reselling the photocopied pages. The work was never decrypted, yetcopyright is still being violated.)

    There are other problems with such access-control mechanisms; they do not expire. Allcopyrighted works are intended to eventually enter the public domain. However, when thedistributed form of a copyrighted work is encrypted, and the encryption mechanism is notpublic but only available via a contractual purchase, then the technical status of the work inthe public domain is irrelevant; it is still not publicly available and accessible, even by thosewho received it while it was still protected under copyright.

    Too, it must be understood that technological standards, given sufficient time, become a formof 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 defacto laws independent of the legislative process. In most cases, the designers of atechnological system are private parties, not the government. Thus, by creating an accesscontrol system for digital information, a copyright holder may in a sense create his own lawsthat override copyright law and its accompanying fair use rights. If those access controlsystems are given blanket-endorsement by the government, as the DMCA does, thencopyright holders are given carte blanche to circumvent copyright law by making it illegal toaccess 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, whichis unacceptable. Second, it prevents a work from ever completely falling into the publicdomain. As the end goal of copyright is to enrich the public domain (by providing authors witha financial incentive to create more works that will eventually enter the public domain), DRMis then directly contradictory to the goal of copyright; that is, to promote the progress ofscience and the useful arts.

    To preserve the integrity of the copyright system and the public domain, therefore, we mustensure that such "loopholes" created by digital technology cannot be exploited.

    However, it must also be acknowledged and understood that encryption itself is not theproblem. Encryption technology has a wide variety of valid, constructive uses that do notcontradict the constitutional purpose of copyright, nor are in any way related to it, and thoseshould 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 publicdomain, 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 abilityof any individual who has legally received a copy of a copyrighted work to utilize that copy inaccordance 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 awork, once its copyright term has expired, can easily enter the public domain, as there are norestrictions in place to keep it from doing so.

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    Although some may argue that such a restriction result in an increase in copyright violation, itmust be recalled that decryption is not in fact necessary for copyright violation to occur. Suchaccess control systems as described and banned above do not deter copyright violation, butmerely create a new class of criminal offenses that cannot be justified under the Constitution'smandate to "promote the progress of science and the useful arts." [7]

    Notes and Citations1. 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 permissionof the author.

    3. The term "science" is understood to have been used by the Framers of the Constitutionin a more general sense than the term enjoys in current usage. An appropriatedefinition 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 athttp://www.copyright.gov/pr/eldred.html

    7. People of the United States, We The. Constitution for the United States of America.

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    1787.8. "The Digital Millenium Copyright Act of 1998: U.S. Copyright Office Summary."

    http://www.copyright.gov/legislation/dmca.pdf9. 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 PropertyBy Laurence Garfield

    [email protected] published December 2002

    In the fundamental order of the universe, there is matter and there is energy. The sum total ofmatter and energy in the universe is finite. It cannot be created nor destroyed, and it cannoteven 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 theoriginal, simply by copying the pattern itself into a new set of matter or energy. Additionalinformation has thus been "created", and the sum total of the information in the universe hasincreased 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 isfinite. The program stored on the CD is software. It is information. It is technically infinite. Thehuman brain itself is a medium, perhaps the most complex medium ever created, designed

    http://www.copyright.gov/legislation/dmca.pdfhttp://www.copyright.gov/title17/http://www.copyright.gov/title17/http://www.copyright.gov/title17/http://www.copyright.gov/title17/http://www.copyright.gov/title17/http://www.straightdope.com/mailbag/mbannedbugs.htmlmailto:[email protected]://www.copyright.gov/legislation/dmca.pdfhttp://www.copyright.gov/legislation/dmca.pdfhttp://www.copyright.gov/legislation/dmca.pdfhttp://www.copyright.gov/title17/http://www.copyright.gov/title17/http://www.copyright.gov/title17/http://www.copyright.gov/title17/http://www.copyright.gov/title17/http://www.copyright.gov/title17/http://www.copyright.gov/title17/http://www.copyright.gov/title17/http://www.copyright.gov/title17/http://www.copyright.gov/title17/http://www.copyright.gov/title17/http://www.copyright.gov/title17/http://www.straightdope.com/mailbag/mbannedbugs.htmlhttp://www.straightdope.com/mailbag/mbannedbugs.htmlhttp://www.straightdope.com/mailbag/mbannedbugs.htmlmailto:[email protected]:[email protected]:[email protected]
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    for storing potentially infinite quantities of information. The information itself is distinct from themedium.

    Because matter is a finite resource, it is governed by what economists call the Law ofScarcity. In layman's terms, there is not enough for everyone, so people are willing to give upone scarce item in exchange for another scarce item at various times. To address matter as afinite 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 societiesthat have not developed a property concept of some sort.) That is, all matter is assigned anowner and that owner and no other is allowed to make use of it or control its use by others ashe 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 thepermission 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 wespeak), consisted almost entirely of labor and manpower, and was thus expended at the willof 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 insocieties 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 matterhad been made, and that was that.

    Now, an important point about the ownership of matter is that it is not finite. Matter, insocieties that make use of the property concept of economic allotment, is always owned bysomeone. When the owner dies, ownership passes to another person by some meansdetermined by law. Even so-called "public property" is owned by someone, namely thegovernment, 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 andturn one hammer into two and let you have one of them. If I give you my hammer, then for aslong 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 allcontrol 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 tothe economic law of scarcity. The medium upon which it is stored does, but the informationitself does not. If information is non-scarce, then the laws of property do not apply to it. Let mestate 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 newinformation tends towards the material benefit of society through the creation of newdiscoveries of what IS, and through the invention of new material constructs that aid in doingwork. The other is aesthetic, in that the creation of new information tends towards the culturaland emotional benefit of society through the creation of new public discourse and theenrichment of the cultural fabric and heritage.

    Both of those advantages are maximized when the information is available to as many peopleas possible. The more people may take advantage of a new, more efficient means of doing

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    work, the more work can be done, and everyone benefits. The more people have access tonew cultural works, the more the culture of each individual is enriched, and thereby the entiresociety 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 "publicproperty", 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 ofpeople who may make use of it simultaneously is limited only by the population of the world atany given time.

    Unfortunately, humans on the whole do not generally think in terms of cultural enrichment andsocietal benefit. Man is a politi