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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}
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):
> \[Congress shall have the power\] 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.
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,
> 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.
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.
@firstcopyingnotice{{@footnoterule@smallskip Copyright © 2002, 2003,
2007, 2009–2011 Free Software Foundation, Inc.\
{This essay was first published on , in 2002. This
version is part of @fsfsthreecite}
### The “Copyright Bargain” {#the-copyright-bargain .subheading}
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.
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.
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.
### The First Error: “Striking a Balance” {#the-first-error-striking-a-balance .subheading}
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.
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.
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.
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.
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.
Since the idea of “striking a balance” between publishers and readers
denies the readers the primacy they are entitled to, we must reject it.
### Balancing against What? {#balancing-against-what .subheading}
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.
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.
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.
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.
### Not “Balance” but “Trade-Off” {#not-balance-but-trade-off .subheading}
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.
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.
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.”
### The Second Error: Maximizing One Output {#the-second-error-maximizing-one-output .subheading}
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.
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.
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.
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.
### The Rhetoric of Maximization {#the-rhetoric-of-maximization .subheading}
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.
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.
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.
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.
### The Third Error: Maximizing Publishers’ Power {#the-third-error-maximizing-publishers-power .subheading}
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.
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.
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.
### 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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