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1. Misinterpreting Copyright—A Series of Errors {#misinterpreting-copyrighta-series-oferrors .chapter}
===============================================
对版权的错误解读——一系列错误
============================
@begingroup @advance@vsize by 6pt
Something strange and dangerous is
happening in copyright law. Under 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 US government
is adding more restrictions, and trying to frighten the public into
obedience with harsh new penalties.
版权法中发生了一些奇怪而又危险的事情。在美国宪法环境下，版权存在的意义是
使用户获益——用户是指那些读书、听音乐、看电影或者运行软件的人们——而非为了
出版商或作者。然而，即使人们越来越倾向于拒绝并且反抗那些“为了他们自己的
好处”而强行施加给他们的各种版权限制，美国政府仍然正在施加更多的限制，并
且试图以新的严厉惩罚措施来恐吓公众以迫使其服从。
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 US Constitution.
那么，版权政策是如何一步一步地走到与其宣称的初衷完全背道而驰的地步的呢？
而我们又如何才能使其重新回到与其初衷相符的正轨呢？为了理解这些，我们应当
首先审视美国版权法的根基：美国宪法。
### Copyright in the US Constitution {#copyright-in-the-us-constitution .subheading}
### 美国宪法中的版权
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 concession made to them for
the sake of progress. The Constitution gives permission for a copyright
system with this clause (Article I, Section 8, Clause 8):
当美国宪法被起草之时，作者们应当被赋予某种版权垄断权这一想法被提出——然后
又被拒绝了。我们国家的创始人采纳了另一种假设，即版权并非作者们的一种自然
的权利，而是以进步之名人为地为他们做出的一种认可。宪法通过这一条款（第 I
章，第 8 条，第 8 款）许可了这样一种版权体系：
> \[Congress shall have the power\] to promote the Progress of Science
> and the useful Arts, by securing for limited Times to Authors and
> Inventors the exclusive Right to their respective Writings and
> Discoveries.
> （国会应当拥有权力）通过在一段限定的时间内保证作者和发明者对其作品或发
> 明拥有专属权利，以促进自然科学和有益文科的进步。
The Supreme Court has repeatedly affirmed that promoting progress means
benefit for the users of copyrighted works. For example, in *Fox Film v.
Doyal,*[(1)](#FOOT1) the court said,
美国最高法院已经一再强调，促进进步意味着保护那些版权作品的使用者的利益。
例如，在 Fox Film 起诉 Doyal 的案例[(1)](#FOOT1)中，法庭说道：
> 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.
> 美国的根本利益以及赋予（版权）垄断权的主要目的是基于那些由公众得来、通
> 过作者的劳动获得的普遍利益。
This fundamental decision explains why copyright is not *required* by
the Constitution, only *permitted* as an option—and why it is supposed
to last for “limited times.” If copyright were a natural right,
something that authors have because they deserve it, nothing could
justify terminating this right after a certain period of time, any more
than everyone’s house should become public property after a certain
lapse of time from its construction.
这一根本性的决定解释了为何版权不是被宪法强制要求的，而只是作为一种选项而
被许可——以及为何只应该在一段“限定的时间”内有效。如果版权是一种自然的权利，
即某种作者们由于应当拥有它而拥有的东西，那么没有任何理由可以解释为何可以
在一定时期之后终止这种权利，就如同不能解释为何每个人的房子在建成一定时期
之后应当成为公共财产。
@firstcopyingnotice{{@footnoterule@smallskip 著作权所有 (C) 2002, 2003,
2007, 2009–2011 自由软件基金会\
{本文最初于 2002 年发表于 ，此版本是 @fsfsthreecite 的一部分。}
### The “Copyright Bargain” {#the-copyright-bargain .subheading}
### 版权交易
The copyright system works by providing privileges and thus benefits to
publishers and authors; but it does not do this for their sake. Rather,
it does this to modify their behavior: to provide an incentive for
authors to write more and publish more. In effect, the government 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 taxpayers’ money, except that the
government spends our freedom instead of our money.
版权体系通过为出版商和作者提供特权以保证其利益进而维持其自身运转；然而，
它如此做并非为了他们的利益。与之相反，它如此运作是为了改变他们的行为：即
刺激作者们创作并且发表更多作品。事实上，政府是在以公众的名义消费公众的自
然权利，作为交易的一部分为公众带来更多的发表作品。法学家们将这一概念称为
“版权交易”。就如同政府花费纳税人的钱财以购买一条高速公路或者一架飞机，区
别只是在于此处政府花费的是我们的自由而非我们的钱财。
But is the bargain as it exists actually a good deal for the public?
Many alternative bargains are possible; which one is best? Every issue
of copyright policy is part of this question. If we misunderstand the
nature of the question, we will tend to decide the issues badly.
但是，这种版权交易对于公众而言真的是一种公平的交易吗？众多其他交易方式都
是可能的；哪一种方式最好呢？版权政策的每一个问题都是这个问题的一部分。如
果我们对这个问题的本质产生误解，我们将会倾向于对这些问题做出不恰当的抉择。
The Constitution authorizes granting copyright powers to authors. In
practice, authors typically cede them to publishers; it is usually the
publishers, not the authors, who exercise these powers and get most of
the benefits, though authors may get a small portion. Thus it is usually
the publishers that lobby to increase copyright powers. To better
reflect the reality of copyright rather than the myth, this article
refers to publishers rather than authors as the holders of copyright
powers. It also refers to the users of copyrighted works as “readers,”
even though using them does not always mean reading, because “the users”
is remote and abstract.
宪法批准了将版权权力赋予作者。而实际上，作者们通常将其转让给出版商；因此
实际上通常是出版商而非作者在行使这些权力从而得到大部分利益，尽管作者有时
也能得到一小部分利益。因此通常只是那些出版商在游说政府以进一步增加版权权
力。为了更好地反应关于版权的事实而非那些鬼话，本文将会把出版商而非作者称
为版权权力的持有者，并且将版权作品的使用者称为“读者”，即使对这些作品的使
用并非只能是阅读，这是由于“用户”一词过于遥远和抽象。
### The First Error: “Striking a Balance” {#the-first-error-striking-a-balance .subheading}
### 第一个错误：寻求平衡
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
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.
版权交易将公众置于首要地位：公众读者的利益是其一端；出版商的利益（如果有）
只是达成这一目的的一种方式。因此，读者的利益和出版商的利益首先在质上是不
对等的。对版权的目的的第一步错误解读是将出版商的利益的重要性提升到与读者
的利益相同的级别上来。
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 be equivalent to
the copyright bargain.
通常有这样的说法，美国版权法旨在在出版商和读者的利益之间“寻求平衡”。那些
援引这种解读方式的人们将其呈现为一种对宪法中所陈述的基本立场的复述，换言
之，它应当与所谓的版权交易等价。
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. 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
distinction between the readers’ and publishers’ interests which is at
the root of the government’s participation in the copyright bargain.
但是，这两种解读其实有着天壤之别；它们不仅在概念上截然不同，在涵义上也是
完全不同的。这种“平衡”的概念假设读者和出版商的利益在重要性上的差别只是量
上的，即我们应当分别给予它们多少权重，以及它们适用于哪些场合。“利益相关方”
的概念通常被用于以这种方式描述这一问题。这种观点抹杀了读者和出版商的利益
在质上的区别，而这种区别正是政府参与版权交易的基本点。
The consequences of this alteration are far-reaching, because the great
protection for the public in the copyright bargain—the idea that
copyright privileges can be justified only in the name of the readers,
never in the name of the publishers—is discarded by the “balance”
interpretation. Since the interest of the publishers is regarded as an
end in itself, it can justify copyright privileges; in other words, the
“balance” concept says that privileges can be justified in the name of
someone other than the public.
这种偷换概念的影响是深远的，由于在版权交易中对公众利益的强有力的保护——版
权特权只能以读者之名被合理化，而绝非以出版商之名被合理化这一理念——被这种
“平衡”的解读方式所抛弃了。由于出版商的利益也被视为其中一端，它也可以使版
权特权合理化；换言之，“平衡”概念宣称版权特权可以以公众以外的某人之名被合
理化。
As a practical matter, the consequence of the “balance” concept is to
reverse the burden of justification for changes in copyright law. The
copyright bargain places the burden on the 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. 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.
从实践角度讲，这种“平衡”概念的结果是逆转了在版权法中做出更改所需正当理由
的负担。版权交易将这种负担置于出版商一方，他们需要说服读者转让部分自由。
而平衡概念逆转了这种负担，实事求是地说，由于对于出版商将会通过额外的特权
得到好处这一点没有异议。除非这对读者造成的伤害能够被证实，并且这种伤害大
到了已经超出读者所能得到的好处的程度，我们将会得出结论：出版商被赋予了它
们要求的几乎所有特权。
Since the idea of “striking a balance” between publishers and readers
denies the readers the primacy they are entitled to, we must reject it.
由于在出版商和读者之间“寻求平衡”的理念否定了读者本应拥有的首要位置，我们
必须坚决反对。
### Balancing against What? {#balancing-against-what .subheading}
### 针对什么的平衡？
When the government buys something for the public, it acts on behalf of
the public; its responsibility is to obtain the best possible deal—best
for the public, not for the other party in the agreement.
当政府为公众购买任何东西之时，它是在以公众的名义进行交易；它的责任是试图
得到最佳的可能交易方式——对公众而言的最佳，而非对于交易中的另一方。
For example, when signing contracts with construction companies to build
highways, the government aims to spend as little as possible of the
public’s money. Government agencies use competitive bidding to push the
price down.
例如，当政府与建设公司签署合同以修建高速公路时，政府应当致力于花费尽可能
少的公众资金。相关政府机构将会通过竞争性投标的方式来降低总价。
As a practical matter, the price cannot be zero, because contractors
will not bid that low. Although not entitled to special consideration,
they have the usual rights of citizens in a free society, including the
right to refuse disadvantageous contracts; even the lowest bid will be
high enough for some contractor to make money. So there is indeed a
balance, of a kind. But it is not a deliberate balancing of two
interests each with claim to special consideration. It is a balance
between a public goal and market forces. The government tries to obtain
for the taxpaying motorists the best deal they can get in the context of
a free society and a free market.
从实践角度讲，这一价格不可能为零，因为承包商不可能叫出那么低的价格。尽管
没有获得特别报酬的资格，他们在自由社会中仍然享有通常的公民权利，包括拒绝
对其不利的合同的权利；即使最低竞价也足以使某些承包商有利可图。因此，这里
确实存在着某种平衡。但这并非由于利益双方各自要求得到特殊报酬而达成的一种
蓄意的平衡。这是一种在公众目标和市场力量之间达成的平衡。政府试图为驾车的
纳税人获得他们在自由社会和自由市场的大背景下可能得到的最佳交易。
In the copyright bargain, the government spends our freedom instead of
our money. Freedom is more precious than money, so government’s
responsibility to spend our freedom wisely and frugally is even greater
than its responsibility to spend our money thus. Governments must never
put the publishers’ interests on a par with the public’s freedom.
在版权交易中，政府花费的是我们的自由而非我们的钱财。自由远比金钱更加珍贵，
因此政府对于理性而节约地花费我们的自由的责任更重于花钱的责任。政府绝不应
该将出版商的利益与公众的自由相提并论。
### Not “Balance” but “Trade-Off” {#not-balance-but-trade-off .subheading}
### 不是平衡，而是折中
The idea of balancing the readers’ interests against the publishers’ is
the wrong way to judge copyright policy, but there are indeed two
interests to be weighed: two interests *of the readers.* Readers have an
interest in their own freedom in using published works; depending on
circumstances, they may also have an interest in encouraging publication
through some kind of incentive system.
将读者利益与出版商利益进行平衡是对版权政策的错误判断，但是，此处确实有两
种利益需要被权衡：关于读者的两种利益。读者自身有其关于使用出版作品的自由
的利益；取决于所处环境，他们还可能拥有通过某种激励系统鼓励发表作品的权利。
The word “balance,” in discussions of copyright, has come 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.[(2)](#FOOT2) We need another
term.
由于在讨论版权问题时，“平衡”一词被用于指代在读者和出版商之间“寻求平衡”这
一理念。因此，对于读者自身的两种利益使用“平衡”一词将会产生歧义[(2)](#FOOT2)。
我们需要另一个术语。
In general, when one party has two goals that partly conflict, and
cannot completely achieve both of them, we call this a “trade-off.”
Therefore, rather than speaking of “striking the right balance” between
parties, we should speak of “finding the right trade-off between
spending our freedom and keeping it.”
通常意义上，当某一团体拥有两种部分冲突的目标而不能两全之时，我们称之为“折
中”。因此，与其说在两个团体之间“寻求正确的平衡”，不如说“在花费与保留我们
的自由之间寻求最佳的折中”。
### The Second Error: Maximizing One Output {#the-second-error-maximizing-one-output .subheading}
### 第二个错误：最大化一项输出
The second mistake in copyright policy consists of adopting the goal of
maximizing—not just increasing—the number of published works. The
erroneous concept of “striking a balance” elevated the publishers to
parity with the readers; this second error places them far above the
readers.
版权政策中的第二个错误包括将最大化——而非仅仅是增加——出版作品数量作为最终
目标。第一个错误概念“寻求平衡”将出版商的地位提升到与读者对等的位置，而这
第二个错误则将他们的地位进一步提升到远在读者之上的位置。
When we purchase something, we do not generally buy the whole quantity
in stock or the most expensive model. Instead we conserve funds for
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 an inefficient allocation of
resources; we generally choose to keep some money for another use.
当我们购买物品时，我们通常不会买空所有库存或者只买最贵的型号。与之相反，
我们将会为其他购买需求预留资金，对于任意特定的物品，只买我们所需要的，并
且选择一种能够满足需求的型号而非最高端的型号。根据报酬递减原理，将我们的
所有可用资金花在某一特定物品上很可能是一种低效的资源分配方式；我们一般会
选择将部分资金留作他用。
Diminishing returns applies to copyright just as to any other purchase.
The first freedoms we should trade away are those we miss the least, 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 say it is not worth its incremental price; we would then
settle on a bargain whose overall result is to increase the amount of
publication, but not to the utmost possible extent.
报酬递减原理也适用于版权交易，如同它适用于任何其他购买行为。我们应当最先
卖出的自由是那些使我们失去得最少的那部分自由，并且这部分自由的牺牲能够换
取对作品出版的最大激励。随着我们继续卖出的自由越来越关乎自身核心利益，我
们将会发现每一笔新的交易相对于上一笔都是更大的牺牲，同时它们所能带来的出
版活力增量越来越小。而当这种增量远未减到零之前，我们就会说不值得为之付出
不断增加的代价；而后我们将会达成某种交易，其最终结果是增加了出版量，但并
未达到可能的极限程度。
Accepting the goal of maximizing publication rejects all these wiser,
more advantageous bargains in advance—it dictates that the public must
cede nearly all of its freedom to use published works, for just a little
more publication.
将最大化出版量作为最终目标将会预先拒绝所有这些更加明智、更加有利的交易方
式——它强制规定公众必须出卖几乎全部自由来使用出版作品，而仅仅是为了换取一
点点出版量的增加。
### The Rhetoric of Maximization {#the-rhetoric-of-maximization .subheading}
### 具有欺骗性的最大化
In practice, the goal of maximizing publication regardless of the cost
to freedom is supported by widespread rhetoric which asserts that public
copying is illegitimate, unfair, and intrinsically wrong. For instance,
the publishers call people who copy “pirates,” a smear term designed to
equate sharing information with your neighbor 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, but presents itself as
representing the unquestioned tradition of the American legal system.
在实践中，将最大化出版量作为最终目标而全然不顾自由的代价这一理念是由一系
列具有欺骗性的说法所支撑的。这种说法宣称公众对出版物进行复制的行为是非法、
不公平、并且本质上错误的。例如，出版商将复制出版物的人们称为“盗版者”，这
种诽谤性的称谓将与您的邻居分享信息的行为与攻击船只的行为等同起来。（这一
诽谤性的称谓最初被作者用于描述那些找到了以某种合法方式出版未经授权许可的
版本的出版商；而它被出版商所使用的现代用法几乎与其原意完全相反。）这种欺
骗性的说法直接抹杀了版权的宪法基础，而是如同表现美国法律体系中那些公认的
传统那样呈现其自身。
The “pirate” rhetoric is typically accepted because 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 challenged to show why publishers
should not receive some additional power, the most important reason of
all—“We want to copy”—is disqualified in advance.
“盗版”这一具有欺骗性的说法之所以被普遍接受，是由于它充斥于各种媒体，以至
于极少有人意识到它到底有多么重要。它是如此地强有力，由于如果由公众进行复
制是根本非法的，我们将完全不能对抗出版商强制要求我们牺牲自己的自由的行为。
换言之，当公众被威胁给出理由以证明为何出版商不应获得某些额外权力之时，所
有理由当中最重要的一条——“我们想要复制”——已经被预先否决了。
This leaves no way to argue against increasing copyright power except
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.
这封死了通过争论反对与日俱增的版权权力的所有出路，除了一些细枝末节的问题。
因此，今天对于日益强大的版权权力的反对几乎只能援引一些旁枝问题，并且从来
不敢援引本应作为一种合法的公众价值的再分发副本的自由。
As a practical matter, the goal of maximization enables publishers to
argue that “A certain practice is reducing our sales—or we think it
might—so we presume it diminishes publication by 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 USA.
从实践角度讲，出版量最大化这一最终目标使得出版商可以如此论述：“某种行为正
在削减我们的销量——或者我们认为它将会这样——因此，我们假定它使得出版量下降
了一定的未知数量，因此它应当被禁止。”我们将会得到这样一种不可容忍的结论：
公众的利益应当以出版商的销量来衡量，大凡对大众媒体公司有利的东西，对美国
也都是好的。
### The Third Error: Maximizing Publishers’ Power {#the-third-error-maximizing-publishers-power .subheading}
### 第三个错误：最大化出版商的权力
Once the publishers have obtained assent to the policy goal of
maximizing publication output at any cost, their next step is to infer
that this requires giving them the maximum possible powers—making
copyright cover every imaginable use of a work, or applying some other
legal tool such as “shrink wrap” licenses to 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 US to international bodies.
一旦出版商得到了这样的许可，即为了达到出版输出最大化的政策目标可以不计任
何代价，它们的下一步就是推断出这需要赋予它们最大可能的权力——使得版权覆盖
对于一篇作品的任何可想象的使用方式，或者应用某些其他法律工具诸如“拆封包装”
许可证来实现同样的效果。这一目标涉及废除“合理使用”和“首次销售权”，它已经
被各级政府强制执行，从美国各州到国际机构。
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 works others had published a few decades
before, so if today’s copyright law had been in effect, his plays would
have been illegal.
这一步骤是错误的，由于严酷的版权规则阻碍了新的有益作品的创作。例如，莎士
比亚从其他人于数十年前发布的作品中借用情节用于自己的剧本，因此，如果今天
的版权法在当时有效，他的剧本将成为非法。
Even if we wanted the highest possible rate of publication, regardless
of cost to the public, maximizing publishers’ power is the wrong way to
get it. As a means of promoting progress, it is self-defeating.
即使我们真的想要最大可能的出版量而无视公众为之付出的代价，最大化出版商的
权力也是达成这一目标的错误方式。作为一种本意在于促进进步的方式，这种做法
是自相矛盾的。
### The Results of the Three Errors {#the-results-of-the-three-errors .subheading}
The current trend in copyright legislation is to hand publishers broader
powers for longer periods of time. The conceptual basis of copyright, as
it emerges distorted from the series of errors, rarely offers a basis
for saying no. Legislators give lip service to the idea that copyright
serves the public, while in fact giving publishers whatever they ask
for.
For example, here is what Senator Hatch said when introducing S.
483,[(3)](#FOOT3) a 1995 bill to increase the term of copyright by 20
years:
> I believe we are now at such a point with respect to the question of
> whether the current term of copyright adequately protects the
> interests of authors and the related question of whether the term of
> protection continues to provide a sufficient incentive for the
> creation of new works of authorship.[(4)](#FOOT4)
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
public a freedom that is meaningful today—the freedom to redistribute
books from that era. Note the use of the propaganda term,
“protect,”[(5)](#FOOT5) which embodies the second of the three errors.
The bill also extended the copyrights of works yet to be written. For
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 be required to substantiate the claim with projected
balance sheets for 75 years in the future.
Needless to say, Congress did not question the publishers’ arguments: a
law extending copyright was enacted in 1998. It was officially called
the Sonny Bono Copyright Term Extension Act, named after one of its
sponsors who died earlier that year. We usually call it the Mickey Mouse
Copyright Act, since we presume its real motive was to prevent the
copyright on the appearance of Mickey Mouse from expiring. Bono’s widow,
who served the rest of his term, made this statement:
> Actually, Sonny wanted the term of copyright protection to last
> forever. I am informed by staff that such a change would violate the
> Constitution. I invite all of you to work with me to strengthen our
> copyright laws in all of the ways available to us. As you know, there
> is also Jack Valenti’s[(6)](#FOOT6) proposal for term to last forever
> less one day. Perhaps the Committee may look at that next
> Congress.[(7)](#FOOT7)
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.
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 US at all.
An even worse law, the Digital Millennium Copyright Act (DMCA), was
designed to bring back what was then called “copy protection”—now known
as DRM (Digital Restrictions Management)[(8)](#FOOT8)—which users
already detested, by making it a crime to defeat the restrictions, or
even publish information about how to defeat them. This law ought to be
called the “Domination by Media Corporations Act” because it effectively
offers publishers the chance to write their own copyright law. It says
they can impose any restrictions whatsoever on the use of a work, and
these restrictions take the force of law provided the work contains some
sort of encryption or license manager to enforce them.
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”[(9)](#FOOT9) 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.
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 \[the libraries
were\] 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.
Congressman Barney Frank, in a meeting with me and others who opposed
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 “industries.” I asked him, “But is this
in the public interest?” His response was telling: “Why are you talking
about the public interest? These creative people don’t have to give up
their rights for the public interest!” The “industry” has been
identified with the “creative people” it hires, copyright has been
treated as its entitlement, and the Constitution has been turned upside
down.
The DMCA was enacted in 1998. As enacted, it says that fair use remains
nominally legitimate, but allows publishers to prohibit all software or
hardware that you could practice it with. Effectively, fair use is
prohibited.
Based on this law, the movie industry has imposed censorship on free
software for reading and playing DVDs, and even on the information about
how to read them. In April 2001, Professor Edward Felten of Princeton
University was intimidated by lawsuit threats from the Recording
Industry Association of America (RIAA) into withdrawing a scientific
paper stating what he had learned about a proposed encryption system for
restricting access to recorded music.
We are also beginning to see e-books that take away many of readers’
traditional freedoms—for instance, the freedom to lend a book to your
friend, to sell it to a used book store, to borrow it from a library, to
buy it without giving your name to a corporate data bank, even the
freedom to read it twice. Encrypted e-books generally restrict all these
activities—you can read them only with special secret software designed
to restrict you.
I will never buy one of these encrypted, restricted e-books, and I hope
you will reject them too. If an e-book doesn’t give you the same
freedoms as a traditional paper book, don’t accept it!
Anyone independently releasing software that can read restricted e-books
risks prosecution. A Russian programmer, Dmitry Sklyarov, was 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.
Mass-market e-books have been a commercial failure so far, but not
because readers chose to defend their freedom; they were unattractive
for other reasons, such as that computer display screens are not easy
surfaces to read from. We can’t rely on this happy accident to protect
us in the long term; the next attempt to promote e-books will use
“electronic paper”—book-like objects into which an encrypted, restricted
e-book can be downloaded. If this paper-like surface proves more
appealing than today’s display screens, we will have to defend our
freedom in order to keep it. Meanwhile, e-books are making inroads in
niches: NYU and other dental schools require students to buy their
textbooks in the form of restricted e-books.
The media companies are not satisfied yet. In 2001, Disney-funded
Senator Hollings proposed a bill called the “Security Systems Standards
and Certification Act” (SSSCA),[(10)](#FOOT10) which would require all
computers (and other digital recording and playback devices) to have
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 purposes). Since
free software is software that users can modify, we face here for the
first time a proposed law that explicitly prohibits free software for a
certain job. Prohibition of other jobs will surely follow. If the FCC
adopts this rule, existing free software such as GNU Radio would be
censored.
To block these bills and rules requires political action.[(11)](#FOOT11)
### Finding the Right Bargain {#finding-the-right-bargain .subheading}
What is the proper way to decide copyright policy? If copyright is a
bargain made on behalf of the public, it should serve the public
interest above all. The government’s duty when selling the public’s
freedom is to sell only what it must, and sell it as dearly as possible.
At the very least, we should pare back the extent of copyright as much
as possible while maintaining a comparable level of publication.
Since we cannot find this minimum price in freedom through competitive
bidding, as we do for construction projects, how can we find it?
One possible method is to reduce copyright privileges in stages, and
observe the results. By seeing if and when measurable diminutions in
publication occur, we will learn how much copyright power is really
necessary to achieve the public’s purposes. We must judge this by actual
observation, not by what publishers say will happen, because they have
every incentive to make exaggerated predictions of doom if their powers
are reduced in any way.
Copyright policy includes several independent dimensions, which can be
adjusted separately. After we find the necessary minimum for one policy
dimension, it may still be possible to reduce other dimensions of
copyright while maintaining the desired publication level.
One important dimension of copyright is its duration, which is now
typically on the order of a century. Reducing the monopoly on copying to
ten years, starting from the date when a work is published, would be a
good first step. Another aspect of copyright, which covers the making of
derivative works, could continue for a longer period.
Why count from the date of publication? Because copyright on unpublished
works does not directly limit readers’ freedom; whether we are free to
copy a work is moot when we do not have copies. So giving authors a
longer time to get a work published does no harm. Authors (who generally
do own the copyright prior to publication) will rarely choose to delay
publication just to push back the end of the copyright term.
Why ten years? Because that is a safe proposal; we can be confident on
practical grounds that this reduction would have little impact on the
overall viability of publishing today. In most media and genres,
successful works are very profitable in just a few years, and even
successful works are usually out of print well before ten. Even for
reference works, whose useful life may be many decades, ten-year
copyright should suffice: updated editions are issued regularly, and
many readers will buy the copyrighted current edition rather than copy a
ten-year-old public domain version.
Ten years may still be longer than necessary; once things settle down,
we could try a further reduction to tune the system. At a panel on
copyright at a literary convention, where I proposed the ten-year term,
a noted fantasy author sitting beside me objected vehemently, saying
that anything beyond five years was intolerable.
But we don’t have to apply the same time span to all kinds of works.
Maintaining the utmost uniformity of copyright policy is not crucial to
the public interest, and copyright law already has many exceptions for
specific uses and media. It would be foolish to pay for every highway
project at the rates necessary for the most difficult projects in the
most expensive regions of the country; it is equally foolish to “pay”
for all kinds of art with the greatest price in freedom that we find
necessary for any one kind.
So perhaps novels, dictionaries, computer programs, songs, symphonies,
and movies should have different durations of copyright, so that we can
reduce the duration for each kind of work to what is necessary for many
such works to be published. Perhaps movies over one hour long could have
a 20-year copyright, because of the expense of producing them. In my own
field, computer programming, three years should suffice, because product
cycles are even shorter than that.
Another dimension of copyright policy is the extent of fair use: some
ways of reproducing all or part of a published work that are legally
permitted even though it is copyrighted. The natural first step in
reducing this dimension of copyright power is to permit occasional
private small-quantity noncommercial copying and distribution among
individuals. This would eliminate the intrusion of the copyright police
into people’s private lives, but would probably have little effect on
the sales of published works. (It may be necessary to take other legal
steps to ensure that shrink-wrap licenses cannot be used to substitute
for copyright in restricting such copying.) The experience of Napster
shows that we should also permit noncommercial verbatim redistribution
to the general public—when so many of the public want to copy and share,
and find it so useful, only draconian measures will stop them, and the
public deserves to get what it wants.
For novels, and in general for works that are used for entertainment,
noncommercial verbatim redistribution may be sufficient freedom for the
readers. Computer programs, being used for functional purposes (to get
jobs done), call for additional freedoms beyond that, including the
freedom to publish an improved version. See “The Free Software
Definition,” in this book, for an explanation of the freedoms that
software users should have. But it may be an acceptable compromise for
these freedoms to be universally available only after a delay of two or
three years from the program’s publication.
Changes like these could bring copyright into line with the public’s
wish to use digital technology to copy. Publishers will no doubt find
these proposals “unbalanced”; they may threaten to take their marbles
and go home, but they won’t really do it, because the game will remain
profitable and it will be the only game in town.
As we consider reductions in copyright power, we must make sure media
companies do not simply replace it with end-user license agreements. 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 US legal system.
### A Personal Note {#a-personal-note .subheading}
I am a software designer, not a legal scholar. I’ve become concerned
with copyright issues because there’s no avoiding them in the world of
computer networks, such as the Internet. As a user of computers and
networks for 30 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—powers which these
authors will then sign away to publishers.
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 you to
accept one thing on my word alone: that authors like me don’t deserve
special power over you. If you wish to reward me further for the
software or books I have written, I would gratefully accept a check—but
please don’t surrender your freedom in my name. @endgroup
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