The Internet and Copyright

Most of you are probably wondering why I have joined with the Libertarian Cause to get rid of Copyright or to reduce it's power.  Why I think the OGL was a good idea, and why I find Wizards of the Coast's handling of 4e so perplexing that I don't know whether to laugh or to cry.  So I just laugh, since crying can invite sadness and depression.

To understand where I am coming from I have to address two issues: Free Content vs. Copyright, and the Cult of Originality, Crappy Products, and Good Products.

The simple answer is: We live in an era of near instantaneous communication which works by way of the Internet.  The Internet is a copy machine.  It's THE perfect copy machine.  You either have to take our Free Speech and Free Press Rights away -- which was granted by the Divine, or you have to learn to live with the fact that this machine exists and use it purely for your benefit without infringing on the Rights to Free Speech and Free Press on others.

The simple answer to the second issue is this: You can't curb Crappy derivative and transformative products.  It's impossible.  Some fan who excercises his creativity in exactly the wrong field will always produce CRAPPY derivatives.

I will deal with part of the Second and the First in this blog post.  And I'll largely deal with the second in a future Blog Post.

To first understand why Libertarians want to abolish copyrights is to understand the History of Copyright in the first place and the Internet's purpose in the second.  Lets start with the internet.
The Internet is the result of Man's advances in the art of Printing for the last 500 to 600 years.  It is the source we go to get our news, to communicate with people over vast distances, and rely on for commerce.  The internet is a communication device because it can copy and transmit vast amounts of data to many different people.  It's a printing device because it can copy and transmit vast amounts of data perfectly to many different people.

The Internet is the culmination of the moveable type printing press technology. Invented by  Johannes Gensfleisch zur Laden zum Gutenberg in and around 1439 A.D.; he first printed the Bible.  It was a best seller.

The Printing Press moved to England, and soon William Tyndale printed the bible in English.  The Catholic Church got in an uproar over his printing of the Bible in English, and burned him to the stake.  That was the first time a Copyright was applied.  Despite this, Tyndale's Bible was copied and progulmated across England.  The Bible was read in the Southern English Dialect and standardized English pronounciation.


Later, the Government of England got nervous about the Printing Press.  Not as nervous as the Catholic Church, but nervous enough.  If someone can print a bible, a human anatomy pop-up book, and a scientific treatise of the Solar System; they can print Seditious and Libelous Tracts against the State.

Parliament and the Crown sought to control such seditious and libelous tracts against the state by creating a guild of private sector censors called the London Company of Stationers.  The London Company of Stationers weren't the first thought police, China has that dubious honor of creating the first recorded instance of a thought police.

Because of the Law, the Stationers were granted a monopoly over all printing in England.  Yes, the Stationers were granted a monopoly over printing in England. Every work, old and new, could be theirs to print as long as they kept a strict eye on what was printed.  As a result, their Charter not only gave them the exclusive right to print but also the right to search out and destroy unauthorized presses and books, and even had the right to burn illegal books.  As a result, the Company of Stationers had effectively become the English Government's private, for profit thought police force.


It gets better.  This system was openly designed to serve the book seller and the English Government, not the author or the reader.  New books were entered in by a company member's name, not the author's. By convention, the member who registered the entry held the "copyright", the exclusive right to publish that book, over other members of the Company, and the Company's Court of Assistants resolved infringement disputes.

This was not simply the latest manifestation of some pre-existing form of copyright. It's not as though authors had formerly had copyrights, which were now to be taken away and given to the Stationers. The Stationers' right was a new right, though one based on a long tradition of granting monopolies to guilds as a means of control. Before this moment, copyright — that is, a privately held, generic right to prevent others from copying — did not exist. People routinely printed works they admired when they had the chance, an activity which is responsible for the survival of many of those works to the present day. One could, of course, be enjoined from distributing a specific document because of its potentially libelous effect, or because it was a private communication, or because the government considered it dangerous and seditious. But these reasons are about public safety or damage to reputation, not about property ownership. There had also been, in some cases, special privileges (then called "patents") allowing exclusive printing of certain types of books. But until the Company of Stationers, there had not been a blanket injunction against printing in general, nor a conception of copyright as a legal property that could be owned by a private party.

This won't Change until the Statute of Anne, and the U.S. Constitution.  The copyright clause: "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." -- was greatly debated by Madison and Jefferson and this was the result.

Notice it says Authors and Inventors not companies.  However, a Copyright Law was enacted with Hamilton suggesting that the Copyright Term lasts to 14 years.  However, Copyright always serves the middle man.  The Printing Company -- the Walt Disney Company, Wizards of the Coast, Harper and Collins, Houston Mifflin, etc -- is benefited the most when it comes to Printing.

This is was the status quo, with Copyright terms being increased in the 20th Century by authors and artists who were brainwashed that Copyright served them.  Then came the invention of the Computer.  The first computers were impossibly huge electronic calculators.   Although Babbage was working on a cipher machine back in the late 19th Century, the first real computer was a monstrosity of vaccuum tubes and wired circuits.

micro-computers were invented, thanks to the Transistor and the integrated circuit.  Then an experiment was conducted by the U.S. Military and a few U.S. Universities taking advantage of XEROX PARC's invention of the ethernet.  This experiment, called ArcNet, was the next stage of evolution in printing and communications technology.  Something that won't take off until Compuserve, America On-line, and eventually ---- the World Wide Web.

The Internet was invented, and the Internet is composed of interlocking, interlinking microcomputers across the Planet.  And the Internet, for the first time, is a cheep, near instantaneous way of sharing information. It was a revolution!  And for the first time, Copyright Law, has been made obsolete by this technology.

Years ago, the Company of Stationers made the argument that if Printing was left in the hands of everyone, printing would be impossible.  Now, Printing is left in the hands of everyone thanks to the Internet.  Now the Company of Stationers argument can be testable.  So, would authors still create without a centralized distribution system to publish their works?  The answer is an emphatic YES!  They already are.  It's as simple as that. :)

Copyright has been borked by the Internet.  Copyright has been destroyed by the Internet.  Copyright allows for a centralized distribution system to publish works.  The Internet has made competition with the middle men possible and profitable.  It also made copying of works possible and profitable.  Therefore, with this reality, it's become a different world.  The Author must work hard to get his thoughts down on paper and to advertise his work.

Now that the internet has been invented, do you think God thinks highly of a centralized distribution system of print?  Of course not.  One time, he commanded Joseph Smith to sell the copyright of his precious Book of Mormon (God owns the copyright on the Book of Mormon).  If God was willing to give it up, don't you think that an author or musician should rethink their position on Copyright?

Shouldn't we all?

The Surprising History of Copyright

So, I guess some of you are confused over rivalrous goods and non-rivalrous goods.  In other words, real property and intellectual "property."  I present the Surprising History of Copyright from QuestionCopyright.org.


There is one group of people not shocked by the record industry's policy of suing randomly chosen file sharers: historians of copyright. They already know what everyone else is slowly finding out: that copyright was never primarily about paying artists for their work, and that far from being designed to support creators, copyright was designed by and for distributors — that is, publishers, which today includes record companies. But now that the Internet has given us a world without distribution costs, it no longer makes any sense to restrict sharing in order to pay for centralized distribution. Abandoning copyright is now not only possible, but desirable. Both artists and audiences would benefit, financially and aesthetically. In place of corporate gatekeepers determining what can and can't be distributed, a much finer-grained filtering process would allow works to spread based on their merit alone. We would see a return to an older and richer cosmology of creativity, one in which copying and borrowing openly from others' works is simply a normal part of the creative process, a way of acknowledging one's sources and of improving on what has come before. And the old canard that artists need copyright to earn a living would be revealed as the pretense it has always been.

None of this will happen, however, if the industry has its way. For three centuries, the publishing industry has been working very hard to obscure copyright's true origins, and to promote the myth that it was invented by writers and artists. Even today, they continue to campaign for ever stronger laws against sharing, for international treaties that compel all nations to conform to the copyright policies of the strictest, and most of all to make sure the public never asks exactly who this system is meant to help.

The reward for these efforts can be seen in the public's reaction to the file-sharing lawsuits. While most people agree that this time the industry went too far, the error is mainly treated as one of degree — as if the record companies had a valid point, but had merely resorted to excessive force in making it.
To read the true history of copyright is to understand just how completely this reaction plays into the industry's hands. The record companies don't really care whether they win or lose these lawsuits. In the long run, they don't even expect to eliminate file sharing. What they're fighting for is much bigger.

They're fighting to maintain a state of mind, an attitude toward creative work that says someone ought to own products of the mind, and control who can copy them. And by positioning the issue as a contest between the Beleaguered Artist, who supposedly needs copyright to pay the rent, and The Unthinking Masses, who would rather copy a song or a story off the Internet than pay a fair price, the industry has been astonishingly successful. They have managed to substitute the loaded terms "piracy" and "theft" for the more accurate "copying" — as if there were no difference between stealing your bicycle (now you have no bicycle) and copying your song (now we both have it). Most importantly, industry propaganda has made it a commonplace belief that copyright is how most creators earn a living — that without copyright, the engines of intellectual production would grind to a halt, and artists would have neither means nor motivation to produce new works.

Yet a close look at history shows that copyright has never been a major factor in allowing creativity to flourish. Copyright is an outgrowth of the privatization of government censorship in sixteenth-century England. There was no uprising of authors suddenly demanding the right to prevent other people from copying their works; far from viewing copying as theft, authors generally regarded it as flattery. The bulk of creative work has always depended, then and now, on a diversity of funding sources: commissions, teaching jobs, grants or stipends, patronage, etc. The introduction of copyright did not change this situation. What it did was allow a particular business model — mass pressings with centralized distribution — to make a few lucky works available to a wider audience, at considerable profit to the distributors.

The arrival of the Internet, with its instantaneous, costless sharing, has made that business model obsolete — not just obsolete, but an obstacle to the very benefits copyright was alleged to bring society in the first place. Prohibiting people from freely sharing information serves no one's interests but the publishers'. Although the industry would like us to believe that prohibiting sharing is somehow related to enabling artists to make a living, their claim does not stand up to even mild scrutiny. For the vast majority of artists, copyright brings no economic benefits. True, there are a few stars — some quite talented — whose works are backed by the industry; these receive the lion's share of distribution investment, and generate a correspondingly greater profit, which is shared with the artist on better than usual terms because the artist's negotiating position is stronger. Not coincidentally, these stars are who the industry always holds up as examples of the benefits of copyright.

But to treat this small group as representative would be to confuse marketing with reality. Most artists' lives look nothing like theirs, and never will, under the current spoils system. That is why the stereotype of the impoverished artist remains alive and well after three hundred years.
The publishing industry's campaign to preserve copyright is waged out of pure self-interest, but it forces on us a clear choice. We can watch as most of our cultural heritage is stuffed into a vending machine and sold back to us dollar by dollar — or we can reexamine the copyright myth and find an alternative.

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The first copyright law was a censorship law. It had nothing to do with protecting the rights of authors, or encouraging them to produce new works. Authors' rights were in no danger in sixteenth-century England, and the recent arrival of the printing press (the world's first copying machine) was if anything energizing to writers. So energizing, in fact, that the English government grew concerned about too many works being produced, not too few. The new technology was making seditious reading material widely available for the first time, and the government urgently needed to control the flood of printed matter, censorship being as legitimate an administrative function then as building roads.

The method the government chose was to establish a guild of private-sector censors, the London Company of Stationers, whose profits would depend on how well they performed their function. The Stationers were granted a royal monopoly over all printing in England, old works as well as new, in return for keeping a strict eye on what was printed. Their charter gave them not only exclusive right to print, but also the right to search out and confiscate unauthorized presses and books, and even to burn illegally printed books. No book could be printed until it was entered in the company's Register, and no work could be added to the Register until it had passed the crown's censor, or had been self-censored by the Stationers. The Company of Stationers became, in effect, the government's private, for-profit information police force [1].

The system was quite openly designed to serve booksellers and the government, not authors. New books were entered in the Company's Register under a Company member's name, not the author's name. By convention, the member who registered the entry held the "copyright", the exclusive right to publish that book, over other members of the Company, and the Company's Court of Assistants resolved infringement disputes [2].

This was not simply the latest manifestation of some pre-existing form of copyright. It's not as though authors had formerly had copyrights, which were now to be taken away and given to the Stationers. The Stationers' right was a new right, though one based on a long tradition of granting monopolies to guilds as a means of control. Before this moment, copyright — that is, a privately held, generic right to prevent others from copying — did not exist. People routinely printed works they admired when they had the chance, an activity which is responsible for the survival of many of those works to the present day. One could, of course, be enjoined from distributing a specific document because of its potentially libelous effect, or because it was a private communication, or because the government considered it dangerous and seditious. But these reasons are about public safety or damage to reputation, not about property ownership. There had also been, in some cases, special privileges (then called "patents") allowing exclusive printing of certain types of books. But until the Company of Stationers, there had not been a blanket injunction against printing in general, nor a conception of copyright as a legal property that could be owned by a private party.

For about a century and a third, this partnership worked well for the government and for the Stationers. The Stationers profited from their monopoly, and through the Stationers, the government exercised control over the spread of information. Around the end of the seventeenth century, however, owing to larger political changes, the government relaxed its censorship policies, and allowed the Stationers' monopoly to expire. This meant that printing would return to its former anarchical state, and was of course a direct economic threat to the members of the Company of Stationers, accustomed as they were to having exclusive license to manufacture books. Dissolution of the monopoly might have been good news for long-suppressed authors and independent printers, but it spelled disaster for the Stationers, and they quickly crafted a strategy to retain their position in the newly liberal political climate.

The Stationers based their strategy on a crucial realization, one that has stayed with publishing conglomerates ever since: authors do not have the means to distribute their own works. Writing a book requires only pen, paper, and time. But distributing a book requires printing presses, transportation networks, and an up-front investment in materials and typesetting. Thus, the Stationers reasoned, people who write would always need a publisher's cooperation to make their work generally available. Their strategy used this fact to maximum advantage. They went before Parliament and offered the then-novel argument that authors had a natural and inherent right of ownership in what they wrote, and that furthermore, such ownership could be transferred to other parties by contract, like any other form of property.

Their argument succeeded in persuading Parliament. The Stationers had managed to avoid the odium of censorship, as the new copyrights would originate with the author, but they knew that authors would have little choice but to sign those rights back over to a publisher for distribution. There was some judicial and political wrangling over the details, but in the end both halves of the Stationers' argument survived essentially intact, and became part of English statutory law. The first recognizably modern copyright, the Statute of Anne, was passed in 1709 and took effect in 1710.

The Statute of Anne is often held up by champions of copyright as the moment when authors were finally given the protection they had long deserved. Even today, it continues to be referenced both in legal arguments and in press releases from the publishing industry. But to interpret it as an authors' victory flies in the face of both common sense and historical fact [3]. Authors, having never had copyright, saw no reason now to suddenly demand the rather paradoxical power to prevent the spread of their own works, and did not do so. The only people threatened by the dissolution of the Stationers' monopoly were the Stationers themselves, and the Statute of Anne was the direct result of their lobbying and campaigning. In the memorable words of the contemporary Lord Camden, the Stationers "...came up to Parliament in the form of petitioners, with tears in their eyes, hopeless and forlorn; they brought with them their wives and children to excite compassion, and induce Parliament to grant them a statutory security." [4]  To make their argument more palatable, they had proposed that copyright would originate with the author, as a form of property that could be sold to anyone — anticipating, correctly, that it would most often be sold to a printer.

This proposal was a shrewd tactical move, because one of Parliament's concerns was to prevent the re-establishment of a centralized monopoly in the book trade, with its attendant potential for a renewal of censorship by the crown. Benjamin Kaplan, professor of law emeritus at Harvard University and a respected copyright scholar, describes the Stationers position succinctly:

....The stationers made the case that they could not produce the fragile commodities called books, and thus encourage learned men to write them, without protection against piracy... There is an apparent tracing of rights to an ultimate source in the fact of authorship, but before attaching large importance to this we have to note that if printing as a trade was not to be put back into the hands of a few as subject of monopoly — if the statute was indeed to be a kind of "universal patent" — a [legal] draftsman would naturally be led to express himself in terms of rights in books and hence to initial rights in authors. A draftsman would anyway be aware that rights would usually pass immediately to publishers by assignment, that is, by purchase of the manuscripts as in the past. ... I think it nearer the truth to say that publishers saw the tactical advantage of putting forward authors' interests together with their own, and this tactic produced some effect on the tone of the statute.[5]

The Statute of Anne, taken in historical context, is the smoking gun of copyright law. In it we can see the entire apparatus of modern copyright, but in still-undisguised form. There is the notion of copyright as property, yet the property is really intended for publishers, not authors. There is the notion of benefitting society, by encouraging people to write books, but no evidence was offered to show that they would not write books without copyright. Rather, the Stationers' argument was that publishers could not afford to print books without protection from competition, and furthermore that printers could not be depended to reproduce works faithfully if given unfettered freedom to print. The corollary, they implied, was that without the prospect of reliable distribution, authors would produce fewer new works.

Their argument was not unreasonable, given the technology of the time. Making a perfect copy of a printed work required access to the original press and compositor, anyway; if reliable reproduction were to be encouraged, then a single-holder copyright system had a certain logic to it. And the publishers would now be effectively forced to pay authors in return for exclusive printing rights (although in fact the Stationers had sometimes payed authors even before, simply to guarantee the completion and delivery of a work). The authors who succeeded in selling this new right to printers had no particular motivation to complain — and naturally, we don't hear very much about the authors not so favored. The consolidation of author's copyright probably contributed to the decline of patronage as a source of income for writers [6], and even allowed some authors, though always a small minority, to support themselves solely from the royalties their publishers shared with them. The fact that a given copyright could only be held by one party at a time also helped prevent the proliferation of divergent variations, a problem that had vexed authors perhaps even more than plagiarism, as there was no easy method by which they could endorse or disclaim particular variations.

But the overall historical record is clear: copyright was designed by distributors, to subsidize distributors not creators.

This is the secret that today's copyright lobby never dares say aloud, for once it is admitted, the true purpose of subsequent copyright legislation becomes embarrassingly clear. The Statute of Anne was just the beginning. Having granted the premise that copyrights should exist at all, the English government found themselves under pressure to extend copyright terms further and further. In the long legal saga that ensued, what's important is not the particular sequence of laws and verdicts, but the identity of the plaintiffs: they were just the sort of stable, settled business interest capable of sustaining litigation and lobbying over a period of decades — that is, they were publishers, not authors. They had proposed the author's copyright out of economic interest, and only after the crutch of a censorship-based monopoly had been taken away from them. When it became clear that the tactic worked, they lobbied to strengthen copyright.

And this is still the pattern today. Whenever the U.S. Congress extends copyright terms or powers, it is the result of pressure from the publishing industry. The lobbyists will sometimes trot out a superstar author or musician as an exhibit, a human face for what is essentially an industry effort, but it's always quite clear what's really going on. All you have to do is look at who's paying the lawyer's and lobbyists' bills, and whose names appear in the court dockets — publishers'.

The industry's centuries-long campaign for strong copyright law is not merely a reflexive land grab, however. It's a natural economic response to technological circumstances. The effect of the printing press, and later of analog sound recording technology, was to make creative works inseparable from their means of distribution. Authors needed publishers the way electricity needs wires. The only economically viable method of reaching readers (or listeners) was the bulk print run: to manufacture thousands of identical copies at once, then physically ship them to various points of distribution. Before agreeing to such an investment, any publisher would naturally prefer to buy or lease the copyright from the author, and just as naturally would lobby the government for the strongest possible copyright powers, the better to protect their investment.

There is nothing inherently exploitative about this; it's just straightforward economics. From a business point of view, a print run is a daunting and risky project. It involves the high up-front costs of a physical medium (be it dead tree pulp, magnetic tape, vinyl platters, or pitted optical discs), plus complicated, expensive machinery to imprint the content onto the medium. There's also the unseen investment of vetting the master copy: because a flawed master can reduce the value of the entire run, publishers and authors go to considerable trouble to generate a polished, error-free version of the work before printing. There is little room for an incremental or evolutionary process here; the work must be brought to near-perfection before the public ever sees it. If any mistakes are overlooked, they will have to be tolerated in the finished product, at least until the process is started again for the next print run. The publisher must also negotiate prices and line up distribution paths, which is not only a matter of bookkeeping, but of physical expenses, of trucks and trains and shipping containers. Finally, as if all this weren't enough, the publisher is compelled to spend even more money on marketing and publicity, to have a better chance of at least recovering all these outlays.

When one realizes that all this must happen before the work has generated a penny of revenue, it is little wonder that publishers argue hard for copyright. The publisher's initial investment — that is, their risk — in any individual work is greater, in economic terms, than the author's. Authors by themselves might have no inherent desire to control copying, but publishers do. And in a world filled with publishers' royalty-supported marketing departments, authors, of course, need publishers all the more. The concentration of distribution revenues results, inevitably, in the familiar logic of an arms race.

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The arrival of the Internet fundamentally changed this equation. It has become cliché to say that the Internet is as revolutionary a development as the printing press, and it is. But it is revolutionary in a different way. The printing press may have made it possible to turn one book into a thousand books, but those books still had to travel from the press into the hands of readers. Physical books were not only the medium in which the content was consumed, they were also the medium in which it was transported to the consumer. Thus, a publisher's total expense was proportional to the number of copies distributed. In such a situation, it is reasonable to ask that each user bear a portion of the costs of distribution. Each user is, after all, more or less responsible for her particular quantum of expense. If the book (or record) is in her hands, it must have gotten there somehow, which in turn means someone spent money to get it there. Divide those expenses by the number of copies, add in some amount for profit, and you arrive, roughly speaking, at the book's price.

But today, the medium over which content is distributed can be unrelated to the medium in which it is ultimately consumed. The data can be sent over a wire, at essentially no cost, and the user can print up a copy at her own expense, and at whatever quality she can afford, on the other end [7]. Furthermore, it is no longer important to possess the master; in fact, the concept of the master copy itself is obsolete. To make a perfect copy of a printed work is actually quite hard, although making a corrupt or abridged copy is very easy. Meanwhile, to make a perfect copy of a digital work is trivially easy — it's making an imperfect copy that requires extra effort.

Thus the practice of charging the same fee for each copy, regardless of how many copies there are or who made them, is now unjustifiable. The cost of producing and distributing the work is now essentially fixed, no longer proportional to the number of copies. From society's point of view, every dollar spent beyond the amount needed (if any) to bring the work into existence in the first place is a waste, an impediment to the work's ability to spread on its own merits.

The Internet did something the Company of Stationers never anticipated: it made their argument a testable hypothesis. Would creators still create, without centralized publishers to distribute their works? Even minimal exposure to the Internet is enough to provide the answer: of course they will. They already are. Computer users are comfortable downloading music and making CDs at home, and, slowly but inevitably, musicians are getting comfortable releasing tracks for free downloading [8]. Many short works of both fiction and non-fiction are already available online. Printing and binding entire books on demand is rarer, but only because the equipment to do it is still somewhat expensive. That equipment is getting steadily cheaper, however, and it's only a matter of time before the copy shop down the street has it. There is no fundamental difference between music and text, from a distribution point of view. As printing and binding technology gets cheaper, authors will see more and more clearly that they have the same alternative musicians do, and the result will be the same: more and more material available without restriction, by the choice of the author.

Some might argue that authors are different, that they are more dependent on copyright than musicians. After all, a musician expects to perform, and can therefore gain indirectly by releasing recordings for free — greater exposure leads to more performances. But authors don't perform; they reach their audience only through their works, not in person. If they now had to come up with ways to fund themselves without imposing an artificial scarcity on their works, could they do it?

Imagine the simplest scenario: you walk into the neighborhood print shop and tell the clerk the Web address of the book you want. A couple of minutes later, the clerk comes back with a freshly printed, hardbound book, straight off the Internet. He rings up the sale.

"That'll be eight dollars. Would you like to add the one dollar author's suggested donation?"

Do you say yes? Perhaps you do, perhaps not — but note that when museums charge a voluntary admission fee, people often pay it. The same sort of dynamic is at work in the copy shop. Most people are happy to pay a tiny extra bit on top of some larger amount, if they have their wallet out already and think it's for a good reason. When people fail to make small, voluntary donations to a cause they like, it's more often due to the inconvenience (writing a check, putting it in the mail, etc) than the money. But even if only half, or fewer, of all readers were to make such donations, authors would still earn more than they do under traditional royalty schemes, and furthermore would have the pleasure of finally being the readers' ally in distribution, instead of their enemy.

This is not the only possible system, and it can easily coexist with others. Those not convinced by voluntary donations should consider another method: the Fund and Release system (also called the Threshold Pledge system [9]). This system is designed to solve the classic problem of distributed funding, which is that each contributor wants reassurance that others are also contributing, before putting in her own money. Under fund-and-release, the hopeful creator of a new work states up front how much money will be required to produce it — this is the "threshold". An intermediary organization then collects pledges, in any amounts, from the general public. When the total amount pledged reaches the threshhold (or exceeds it by some standard percentage, to account for bookkeeping and assumption of risk), the intermediary signs a contract with the creator, and the pledges are called in. Only at this stage, when there is enough money to achieve the desired result, is anyone asked to actually pay up. The intermediary holds the money in escrow, paying the creator according to whatever schedule they negotiated. The last of the money is paid when the work is completed and made publically available, not just to the contributors, but to the entire world. If the creator doesn't produce, the intermediary returns the money to the donors.

The fund-and-release system has some interesting properties not found in the monopolistic, copyright-based marketplace. The resultant work is available to everyone in the world, free of charge. Yet the author was also paid enough to produce the work; if she needed more, she would have asked for more and seen if the market would bear it. Those who did choose to pay paid only as much as they were comfortable with, no more. And finally, there was no risk for the contributors — if the threshold is never reached, then no one pays anything.

Not all methods will be so pleasantly high-minded, of course. A couple of years ago, the established author Fay Weldon famously accepted money from Bulgari jewelry to write a novel that featured Bulgari products prominently. She did so, titling the book "The Bulgari Connection". The book was originally intended as a limited edition to be given away at a corporate function, but having written it, Weldon took it to a publisher for general release. Does this mean that in the future we'll have to scrutinize all creative works for signs of hidden corporate sponsorship? Perhaps, but this is nothing new — product placement was invented in the context of traditional copyright, and has flourished there, as it probably would anywhere. Copyright is neither the cause of corporate sponsorship nor its antidote. To look to the publishing industry as a force for decommercialization would be weirdly out of touch indeed.

These are just a few examples of ways to support creative work without copyright. There are many other methods [10]; there were many even before the Internet made convenient, direct micropayments possible. Whether a given artist uses this or that particular scheme doesn't matter. The important thing is that with little or no friction to impede the payment of tiny amounts, authors will find ways to make such payments happen on the scale they need. Those economists who are enamoured of markets as a solution to everything should be in love with the possibilities here (but, predictably, many are not, because they hate to see anything become depropertized).

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To see a glimpse of the future, it may be most helpful to look not at net-savvy musicians, but at software. The flourishing Free Software movement is probably the best example we have today of a post-copyright world. Free software (some also call it "Open Source") is the brainchild of Richard Stallman, a programmer who had the idea of releasing software under a deliberately reversed copyright. Instead of prohibiting sharing, the software's license explicitly permits and encourages it. A number of others soon caught on to his idea, and because they were able to share and modify each other's programs without limit, they quickly produced a large body of working code.

Some predicted that this initial success would quickly level off as the software increased in size and complexity and required centralized, hierarchical organizations to maintain. But instead of foundering, the Free Software movement has grown so quickly that even its own participants are surprised, and it shows no signs of stopping. It now produces software whose functionality rivals that available in the proprietary market. Free software is widely used by banks, corporations, and governments, as well as individual computer users. More web sites run the free Apache web server than run all other web servers combined. Free operating systems are now the fastest-growing segment of the operating system market. Although some free software authors are paid for their work (after all, their services provide a benefit to those who use the software, and some of those users are willing to pay for it), others volunteer their time. Each software project has its own reasons for existing, and each programmer their own reasons for contributing. But the cumulative effect is a direct flaunting of copyright's entire justification: a thriving community of intellectual production now exists without enforcing copyrights, yet achieves substantially the same results as its mainstream counterpart.

According to the traditional justification of copyright, this shouldn't be happening. The software is essentially in the public domain; its copyright serves mainly to identify the original authors, and in some cases to prevent anyone else from imposing a stricter license. The authors have given up every exclusive right except the right to be identified as the authors. They have voluntarily returned to a world before copyright law: they enforce no royalties, and have no control over the distribution and modification of their works. The software's license gives everyone automatic permission both to use and to redistribute it. You can simply start handing out copies, there's no need to notify anyone or ask permission. If you want to modify it, you're free to do that too. You can even sell it, though naturally it's difficult to charge much, since you'd be competing with others handing out the same goods at no cost. A more common model is to encourage people to download the software for free, and instead sell services such as technical support, training, and customization. These models are not fantasies, they are the basis for profitable businesses that exist right now, paying real programmers competitive salaries to work on free software. But the point is not that people are paid to do it — some are, but many more are not, and yet write it anyway. The real point is that a tremendous amount of free software is produced and maintained every year, at a rate that grows quickly even by the standards of the software industry.

If this phenomenon were isolated to software, it would be explainable as an aberration — software is different, programmers are overpaid, and so on. But it's not just software; if you look carefully, there are signs of it happening everywhere. Musicians are starting to release their tracks online for free downloading, and the quantity of freely available writing on the Internet — starting with reference and non-fiction works, but now including fiction and poetry — long ago passed the point of measurability. Software is not fundamentally different from these other forms of information. Like poems, songs, books, and movies, it can be transmitted digitally. It can be copied in whole or in part; it can be excerpted for use in other works; it can be modified and edited; it can even be satirized.

The abandonment of copyright is farthest along in software mainly because programmers were among the first groups to have Internet access, not because of anything special about the nature of software. Gradually, creators in other areas are realizing that they too can disseminate their works without publishers or centralized distribution chains, by simply allowing the freedom to copy. And increasingly, they are choosing to do so, because they have little to lose, and because it's the easiest way for their work to find its way to an appreciative audience. Far from being especially dependent on copyright law, creators gain the most by abandoning the copyright monopoly.

Even in their early stages, these trends raise an obvious question. If copyright is not really needed to stimulate original creation, then what purpose does it serve today? For it is quite clear that if copyright did not exist already, we wouldn't invent it now. We just finished building ourselves a gigantic copying machine (the Internet) that doubles as a communications device, and incidentally makes it convenient to transfer small amounts of money between people. Sharing is now the most natural thing in the world. The idea that artists are somehow harmed by it is demonstrated false every day, by the thousands of new works that appear online, credited and fully acknowledged by their authors, yet free for the taking. If someone were to argue that creativity would soon dry up unless we immediately institute a system of strict controls over who can copy what, we could reasonably look on them as insane. Yet, in slightly more diplomatic language, this is essentially the argument used by the copyright lobby to press for ever stronger laws.

Creativity is not what's at stake here, and in its more honest moments the publishing industry even tacitly admits this. Although for public relations purposes industry leaders make token declarations about the need for poor artists to earn a living, their most detailed and compelling statements are usually about the business effects of copyright. Larry Kenswil of Universal Music Group, the world's largest record company, was quoted in the New York Times of Jan. 5th, 2003, in an article about digital copy protection schemes, saying "You're not buying music, you're buying a key. That's what digital rights management does: it enables business models."

It's hard to imagine a more succinct statement of the industry credo. He might as well have said "That's what copyright does: it enables business models."

Unfortunately, not all of the propaganda put out by the industry is as straightforward and honest as Kenswil's. The Recording Industry Association of America, for example, explains copyright this way on their web site at http://www.riaa.org/:

You don't need to be a lawyer to be a musician, but you do need to know one legal term — copyright. To all creative artists — poets, painters, novelists, dancers, directors, actors, musicians, singers, and songwriters — the term matters dearly.
To all artists, "copyright" is more than a term of intellectual property law that prohibits the unauthorized duplication, performance or distribution of a creative work. To them, "copyright" means the chance to hone their craft, experiment, create, and thrive. It is a vital right, and over the centuries artists have fought to preserve that right; artists such as John Milton, William Hogarth, Mark Twain, and Charles Dickens. Twain traveled to England to protect his rights, and Dickens came to America to do the same.

Recognize that? It's a page straight out of the Stationers' playbook — an undisguised retelling of the copyright myth, complete with references to individual authors, designed to arouse our support for struggling artists valiantly fighting for their artistic integrity. Apparently, all those artists throughout history who did just fine without copyright aren't included in "all creative artists" as far as the RIAA is concerned. Professor Patterson's comments, about the Stationers' similar use of authors as a foil in front of the eighteenth century English parliament, are equally applicable today: "They [the Stationers] did so by arguments intended to elicit sympathy for the author (conveniently ignoring their role in creating the poor plight of the author that they bemoaned) and avoided sound logic and reason." [11].
The next paragraph in the RIAA's introduction to copyright is even worse. It's a brief — very brief — introduction to the origins of copyright law, heavy with the cadence of historical inevitability, but rather loose with the facts:

Copyright law all started with the "The Statute of Anne," the world's first copyright law passed by the British Parliament in 1709. Yet the principle of protecting the rights of artists predates this. It may sound like dry history at first blush, but since there was precedent to establish and rights to protect, much time, effort, and money has been spent in legal battles over the centuries.

This breathless summary is the copyright equivalent of "Christopher Columbus sailed to America to prove the Earth was round and make friends with the Indians". Yes, much money has indeed been spent in legal battles, but the RIAA is careful not to say who spent it, nor are any further details given about the "principle of protecting the rights of artists" that is alleged to predate these developments.
The rest of their page continues in a similar vein, with so many omissions, mischaracterizations, and outright lies that it's hard to imagine how anyone doing even a modicum of research could have written it. It is, basically, low-grade supporting propaganda in their ongoing campaign to convince the public that copyright is as fundamental to civilization as the laws of thermodynamics.

The RIAA also indulges in one of the favorite tactics of the modern copyright lobby: equating illegal copying with the unrelated, and much more serious, offense of plagiarism. For example, Hilary Rosen, the (now former) head of the RIAA, used to speak at schools and colleges, urging the students to adopt the industry's views about information ownership. Here is her own description of how she presents the case:

Analogies are what really work best. I ask them, "What have you done last week?" They may say they wrote a paper on this or that. So I tell them, "Oh, you wrote a paper, and you got an A? Would it bother you if somebody could just take that paper and get an A too? Would that bug you?" So this sense of personal investment does ring true with people.

Since people who duplicate CDs do not usually replace the artist's name with their own, let's ask the question Hilary Rosen should have asked: "Would it bother you if somebody could just show a copy of your paper around, so other people could benefit from what you wrote, and see that you got an A?" Of course, the students would have answered "No, we aren't bothered by that at all," which isn't what Rosen wanted to hear.

The RIAA is extreme only in the clumsiness of their propaganda. Their message is, in essence, the same one offered by the rest of the copyright industry, which maintains a constant drumbeat of warnings that online content swapping will deprive creators of their reputations and their ability to work, despite overwhelming evidence that copyright never provided them with much of a livelihood anyway, and that they would happily continue to create without it as long as they have a way to distribute their works. The campaign might sound harmless or silly when described as I have described it here, but because they are fighting for survival, with large budgets and skilled publicity departments, the publishers have succeeded in shaping public opinion to a surprising degree. Consider this poor woman, from the International Herald Tribune of Sep. 11th, 2003, in an article about the RIAA file-sharing lawsuits:

One woman who has received a subpoena from the recording industry association said she had struggled to explain to her 13-year-old son why file-sharing was wrong.
"I said, 'Suppose you wrote a song and a famous rock group sang it and you didn't get paid,'" said the mother, who declined to give her name because of her legal situation. "He said: 'I wouldn't care. That would be awesome.' They're still just in that young age where money doesn't matter."

The mother said she had better results when she compared taking someone's song to plagiarizing a school paper.

(One can only hope the sensible 13-year-old manages to keep his head, when so many around him are apparently losing theirs.)

The combination of a still-sympathetic public and deep pockets has unfortunately allowed the copyright industry to exercise dangerous influence at the legislative level. The result is a disturbing trend: mutually reinforcing physical and legal barriers that, while ostensibly designed to combat illegal copying, have the inevitable effect of interfering with all copying. Digital copy-protection schemes are increasingly enforced by your computer's hardware itself, rather than by malleable and replaceable programs. And the same companies that own content often also manufacture the hardware that makes distribution possible. Have you bought a computer from Sony? What about a CD from Sony's music division? That's the same company, and its left hand knows what its right hand is doing. With government cooperation, this combination becomes even more powerful. In the United States we now have a law — the Digital Millennium Copyright Act — that makes it illegal to circumvent a digital protection scheme, or even to produce software that helps others circumvent a digital protection scheme. Unfortunately, since much hardware and software automatically imprints such schemes on any media it produces, the Act effectively stifles authorized copying and many other activities that would otherwise fall into the category of "fair use" under current copyright law.

It is vital to understand that these side effects are not accidents, not unexpected consequences of an otherwise well-intentioned effort to protect artists. Rather, they are an integral part of a strategy that, at bottom, has nothing to do with encouraging creativity. The purpose of this three-pronged industry effort — the publicity campaign, the legal campaign, and the hardware "protections" — is simply this: to prevent the Internet experiment from being carried out to completion. Any organization that is deeply invested in the concept of copy control cannot be pleased to see a system arise that makes copying as easy as clicking a mouse. To the extent possible, such organizations would like to see the same pay-per-copy model that we've been using for centuries continue, even though the fundamental physics of information have changed to make pay-per-copy obsolete.

Although the copyright lobby succeeds in getting new laws passed, and even in winning some court cases, these victories rest on a disintegrating foundation. How much longer will the public continue to believe in the copyright myth, the notion that copyright was invented to make creative work possible? The myth has been maintainable so far because it always had a tiny a grain of truth: although copyright was not inspired by authors, and was not enacted to protect them, it did enable the widespread distribution of many original works. Furthermore, there are still many publishers (generally the smaller or individually-owned ones) who behave with an admirable sense of cultural stewardship, subsidizing unprofitable but important works with money earned by stronger sellers, sometimes even losing money outright in order to print things they think worthwhile. But because they are all bound by the economics of large-scale printing, they are all ultimately dependent on copyright.

---

There won't be a dramatic battle between the publishing industry and the copying public, with a climax, a denouement, and a clear winner striding out of the dust. Instead, what we will see — are already seeing — is the emergence of two parallel streams of creative work: the proprietary stream, and the free stream. Every day, more people join the free stream, of their own volition, for all sorts of reasons. Some enjoy the fact that there are no gatekeepers, no artificial barriers. A work can succeed by its merits and word of mouth alone: although there's nothing to stop traditional marketing techniques from being used in the free stream, there's less to subsidize them, so word of mouth and peer-review networks are taking on a greater importance there. Others enter the free stream as crossovers from the proprietary, releasing a portion of their work into the free domain as an advertisement or an experiment. Some simply realize that they have no chance of success in the proprietary world anyway, and figure they might as well release what they have to the public.

As the stream of freely available material gets bigger, its stigma will slowly vanish. It used to be that the difference between a published author and an unpublished one was that you could obtain the former's books, but not the latter's. Being published meant something. It had an aura of respectability; it implied that someone had judged your work and given it an institutional stamp of approval. But now the difference between published and unpublished is narrowing. Soon, being published will mean nothing more than that an editor somewhere found your work worthy of a large-scale print run, and possibly a marketing campaign. This may affect the popularity of the work, but it won't fundamentally affect its availability; and there will be so many "unpublished" but worthwhile works, that the lack of a publishing pedigree will no longer be considered an automatic strike against an author. Although the free stream does not use traditional copyright, it does observe, and unofficially enforce, a "credit right". Works are frequently copied and excerpted with attribution — but attempts to steal credit are usually detected speedily, and decried publicly. The same mechanisms that make copying easy make plagiarism very difficult. It's hard to secretly use someone else's work when a Google search can quickly locate the original. For example, teachers now routinely do Google searches on representative phrases when they suspect plagiarism in student papers.

The proprietary stream cannot survive forever, in the face of such competition. The abolition of copyright law is optional; the real force here is creators freely choosing to release their works for unrestricted copying, because it's in their interests to do so. At some point, it will be obvious that all the interesting stuff is going on in the free stream, and people will simply cease dipping into the proprietary one. Copyright law may remain on the books formally, but it will fade away in practice, atrophied from disuse.

Or, we can sit back and allow this process to be halted, by permitting manufacturers to build in hardware "protections" that interfere with our ability to copy legitimately; by allowing the copyright lobby to capture our legislatures, to the point where we are constantly looking over our shoulders for the copyright police; and by hesitating to use the free stream to its full potential, because we've been taught a false story of what copyright is all about.

We can, if we choose, have a world where concepts like "out of print" or "rare book" are not only obsolete, but actually meaningless. We can live in a fertile and vibrant garden of constantly evolving works, created by people who wanted deeply to make them available, not mandated by a publisher's market research. Schools would never be forced to stay with out-of-date textbooks because of the per-copy prices set by publishers, and your computer would always let you share songs with your friends.

One way to get there is to question the copyright myth. Copying isn't theft, and it isn't piracy. It's what we did for millenia until the invention of copyright, and we can do it again, if we don't hobble ourselves with the antiquated remnants of a censorship system from the sixteenth century.

This article is released under free copyright, and may be redistributed, excerpted, and modified without restriction. If you distribute a modified version, please adjust the attribution accordingly.

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REFERENCES

[1] These events can be read in any history of copyright. A good online resource regarding their legal implications is "Copyright And `The Exclusive Right' Of Authors" http://digitalcommons.law.uga.edu/cgi/viewcontent.cgi?article=1342&context=fac_artchop Journal of Intellectual Property, Vol. 1, No.1, Fall 1993, by Professor Lyman Ray Patterson, Pope Brock Professor of Law at the University of Georgia and a noted copyright scholar. His description of this earliest copyright is concise and revealing:

The event in the history of Anglo-American copyright that led to the shaping events of the seventeenth and eighteenth centuries was the Charter of the Stationers' Company granted in 1556 by Philip and Mary .... The Charter gave the stationers the power to make "ordinances, provisions, and statutes" for the governance of "the art or mistery of [s]tationery," as well as the power to search out illegal presses and books and things with the power of "seizing, taking, or burning the foresaid books or things, or any of them printed or to be printed contrary to the form of any statute, act, or proclamation ...."
The power to burn offending books was a benefit to the sovereign (a weapon against unlawful publications), and a boon to the stationers (a weapon against competition). The book-burning power thus shows the real motivation for the Charter, to secure the allegiance of the stationers as policemen of the press for the sovereign in an uncertain world.


[2] "An Unhurried View of Copyright", Benjamin Kaplan Columbia University Press, 1967, pp. 4-5.


[3] Patterson, in [1], goes so far as to say "The characterization of the statutory copyright as an author's copyright, however, is one of the great canards of history."


[4] Kaplan, p. 6.


[5] Kaplan, pp. 7-9.


[6] "Five Hundred Years of Printing" pp. 218-230, S. H. Steinberg, Penguin Books, 1955, revised 1961


[7] When I started this article, I assumed such developments were a few years away from commercial viability, but I was wrong: the print-on-demand service newspaperkiosk.com launched (note: it later apparently folded, but then came lulu.com, which is still going strong).


[8] See www.mp3.com, for one example. (Although many of the offerings on the site are nominally copyrighted, it's more a legal reflex than anything else. The tracks are meant to be freely downloaded, listened to, and shared -- and that's exactly what people do with them.)


[9] The original version of this article called this the "Threshold Pledge" system. However, Brandt Cannici of strayform.com, who independently invented the same system, came up with the much better name "Fund and Release", and I now try to use that term instead.


[10] For a description of one funding technique, and a survey of others, see "The Street Performer Protocol and Digital Copyrights" by John Kelsey and Bruce Schneier, at http://firstmonday.org/htbin/cgiwrap/bin/ojs/index.php/fm/article/view/673/583.


[11] Patterson; see [1].

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RECOMMENDED READING

• See our Copyright Bibliography
• The writings of Eben Moglen, Professor of Law and Legal History, Columbia Law School: http://moglen.law.columbia.edu/
• The Free Software Foundation philosophy pages: http://www.fsf.org/philosophy/philosophy.html

When Copyright Goes Bad

Here's a new video that should scare you.



Copyright Law has been expanding.

The Industry that killed the Internet

Seriously, do you want your Computer to work for you, or Disney?  Wierdos like Disney want to put survelliance on the Internet, including 3 strikes law that England has become famous for.  Although B.S. in the White House (Barry Soetoro, a.k.a. Barrack Obama) wants to shut down the Internet.  Which is just as bad, if not worse.

Here is Nina Paley's newest Minute Mime, celebrating the Electronic Frontier Foundation; which explains what happens if you support DRM from a company like Sony.  Here is a link, instead of putting up on my blog.  One of the best things about Copyright is that it's government sponsored.  But the bad thing about Copyright is that people think they own our culture.  Our culture is owned by a few instead by all.

Happy birthday, Electronic Frontier Foundation.

Copyright Law hurts the Economy

Did you know that Copyrights actually hurt rather than help the Economy?   Did you know that sending a DMCA hurts rather than help the economy?  Did you know that Big Media is the only industry that hurts it's own consumers?  Can you really conceive of an industry that hurts it's consumers in such a way?

Copyright laws hurt the Economy and they hurt Free Enterprise.  Two serious videos -- one out of Canada and one that interviews two economists from the Washington University in Saint Louis.





Copyright harms the economy, it harms the consumer, and it prevents a man or a woman to participate in the political process of the American Republic.

Intellectual Property Myths

The people at deoxy.org said this is public domain and can be distributed freely.

Intellectual property is an ancient principle.

Not true. Intellectual property is an explicitly modern notion, having made its debut quite recently. The first patent law was enacted in 1623, and the precursor of modern copyright—the Statute of Anne—came into being in 1710. These early laws were limited in scope and restricted to only a few types of information; the broader interperatation of these principles used today in the western world is quite modern, certain elements having been added only within the last few years.

Intellectual property is recognized worldwide.

As the US's recent standoff with China demonstrates, intellectual property is not a concept which has worldwide acceptance. Indeed, a major foreign policy objective of the United States has been to force other nations to comply with its own intellectual property agenda—an unwelcome form of intellectual imperialism which is all too frequently ignored by watchdog groups.

Without intellectual property, no one will produce original work.

Given that intellectual property law made its debut in 1623, we may correctly consider any work produced before this time to dispell the myth. Man created for millenia before the advent of intellectual property; he will create for many more millenia after it is abandoned.

Intellectual property is necessary to create incentives for the production of original works.

This intellectual property myth has become the mantra of IP supporters. Often repeated, never questioned, the idea that creativity depends on a government granted monopoly needs no justification in the minds of most IP boosters. Sadly, however, they are mistaken: intellectual property "rights" are not essential to creation, and in some circumstances even deter it. Consider, for instance, the software industry. Free for years from the limitations of intellectual property, the industry flourished, becoming by all accounts one of the most creative of environments in the modern world. With the recent introduction of patent law into computing, however, many individual programmers live in fear of lawsuits from large corporations who claim "ownership" of techniques such as the scroll-buffer. Who benefits from this? Certainly not the creator! Intellectual property law, from its inception, has been about publishers and other powerful firms as much as it has been about creative individuals; the latter often find their interests poorly defended by IP.

Even if people did create works without intellectual property protections, the quality of these works would be substandard.

Only if "Julius Caesar", Plutarch's "Lives", "The Last Supper", and Handel's "Messiah" are "substandard"! All of these, including such pivotal creations as the Bible, the Koran, and the hundreds of Sutras were created in a world without intellectual property. IP boosters claim that weakening intellectual property law means giving up great literature, music, and art; in fact, history shows us that this is not the case.

The "best" creators won't work without intellectual property protections.

Once again, history proves this to be false. Shakespeare, Plato, Confucius, Hero, Chaucer, Handel, and many others of the finest names in world literature, music, art, and invention worked in an environment free of intellectual property restrictions. Clearly, genius does not require copyright to produce!

To take away intellectual property rights is to deny creators the right to profit from their labors.

This myth is based on the idea that the only way to make money off of creation is to "sell" the ideas which are produced. In fact, this is not true. Consulting, support, performance, service: these are all ways in which creators can make money off of their abilities without appealing to intellectual property rights. Even if there were no copyright, a band could still make money by charging for live performances, for instance; an even better example is found in academia, where a great deal of idea production takes place without the ideas being "sold" to the universities which sponsor their creators. Removing intellectual property rights would not deny creators the right to profit from their labors; it would, however, allow all of society to share in the benefits of their work.

Intellectual property follows directly from the notion of physical property.

Physical property rights are derived from the basic fact that a physical object can't be in two places at once. In order to keep people from squabbling over material objects, we use a system of rights to say "who gets what". Information, however, differs from physical property in a number of ways, one of which being that it can be in many places at the same time. Let's say that Fred gives Barney an apple; after this, Fred no longer has the apple. If, on the other hand, Fred tells Barney about the apple, Fred still knows about the apple. Fred gave the information to Barney, but Fred still has it! Clearly, then, there is no need for Fred and Barney to squabble over who "owns" the information about the apple: to do such would be to try to treat information like an object, an idea which is clearly flawed.

As the debate over the future of intellectual property unfolds, it will be more important than ever for participants, and bystanders, to have good information concerning the nature of IP. By removing the myths and misconceptions which surround intellectual property, we can make better decisions as to its proper status in our society.

So, What do we lose when we embrace IP?

Danny Colligan has written a fine essay on what we lose when we embrace Copyright.  I happen to agree with him.  This article is taken from Question Copyright dot org and has a creative commons license attached.

-- Elton Robb.

  What We Lose When We Embrace Copyright

by Danny Colligan

Table of contents

• Scope of this article
• Introduction
• What is copyright?
• What is copyright not?
• A brief aside on computers and computer networks
• Why copyright is detrimental to society
  
  • Copyright enforcement necessarily entails monitoring of all computer communications, and therefore the destruction of online privacy
  • Copyright law criminalizes a large percentage of the population
  • Copyright law chills academic research
  • Copyright law's reach already extends to many things, and is expanding with no end in sight
  • Copyright law creates a corporate information police, undermining accountability and due process
  • Copyright law erodes the public domain and free culture
  • Copyright law poses large economic costs to society
  • Copyright law prevents the Internet from fulfilling its promise
• Conclusion
• Responses
  
  • "But how will X make money?"
  • "Couldn't we tweak copyright law?"
  • "Aren't your complaints actually about DRM?"
  • "What about the advantages of copyright?"
  • "Is anyone actually advocating Deep Packet Inspection on the Internet, or is that just a straw man you set up?"
  • "Doesn't copyleft depend on copyright?"
• References and Further Reading
• Acknowledgments
• License
• Version

Scope of this article

This article is intended for a general audience. No technical nor legal background is assumed. Also, I only examine American copyright law here.

Introduction

With the advent of computers and computer network technology, copyright law has become increasingly relevant in the average American's life. One of the themes in the relationship between technology and law has been that law frequently lags behind technology. Copyright law, however, goes even further — it plainly contradicts the realities of modern technology. Specifically, computers and computer networks copy information, often without the explicit consent of any person, and copyright law criminalizes such copying. This mismatch of legality and reality poses devastating consequences.
The downsides to copyright law are legion. Not only does copyright pose large economic costs to society, but it degrades fundamental civic institutions as well. Privacy and due process are significantly eroded under copyright law. Furthermore, academic research is stalled, the public domain is curtailed and the Internet is handicapped. The relentless expansion in the scope of copyright law threatens to take additional victims. Alleviating these problems will require nothing less than the complete elimination of copyright law.

What is copyright?

To quote from the US Copyright Office:

"Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works... [copyright] protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed... work is under copyright protection the moment it is created and fixed in a tangible form that it is perceptible either directly or with the aid of a machine or device." [27]

This explanation (taken from the FAQ of the US Copyright Office) is probably the clearest, most concise official explanation of copyright. Even so, it is rather complex. Let us review the more salient points, for clarity:

• Copyright covers artistic works
• Copyright on an artistic work is automatically granted once it is fixed in a tangible medium (Electronic Frontier Foundation co-founder John Perry Barlow draws the analogy: "In other words, the bottle [containing the wine is] protected, not the wine." [2])
• Copyright has its basis in the US Constitution

The FAQ neglects to mention what form of protection a copyright affords an author or why this protection might be desirable. A different document of the Copyright Office, "Copyright Basics," provides the answer:

"[Copyright] generally gives the owner of copyright the exclusive right to do and to authorize others to do the following:

• To reproduce the work in copies or phonorecords;
• To prepare derivative works based upon the work;
• To distribute copies or phonorecords of the work to the public by sale or other transfer 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 and other audio-visual works;
• To display the work publicly, in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audio-visual work; and
• In the case of sound recordings... to perform the work publicly by means of a digital audio transmission.

... It is illegal for anyone to violate any of the rights provided by the copyright law to the owner of copyright." [28]

Again, penetrating the US Copyright Office's legalese can prove a difficult task, so let us decipher what this really says in layman's terms. The essential point is that copyright is a monopoly on distribution. The holder of the copyright on a work may do a variety of things with that work (distribute it, reproduce it, perform it, derive other works from it, display it publicly, etc.). Others may do those same things with that work only with the explicit permission of the copyright holder. Any unauthorized distribution, reproduction, or performance (etc.) is a violation of the copyright holder's monopoly on those things and is therefore illegal. Violation can expose the infringer to both civil and criminal penalties.
The real rules can be found in Title 17 of the US legal code. [22]
Why does copyright exist?
Copyright exists because it is believed that monopolistic financial incentives stimulate artistic production. The same mentality held during the writing of the Constitution, when the Framers penned Article I, Section 8 Clause 8, which empowers the US Congress "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." [31]
Many scholars speak of a copyright "balance" between the rights that publishers have vs the rights that consumers have with regard to copyrighted works. But that term does not accurately capture the exchange that is taking place here. As Free Software Foundation founder Richard Stallman points out, the best analogy is that of a trade-off. Namely, society trades some of its freedoms (the freedom to distribute copies, to make derivative works, etc.) for a limited period of time in which the creator/monopolist has the exclusive right to all of these actions. After that period of time, the work falls into the public domain, at which time the monopoly is rescinded and anyone can do whatever they please with the work. [32]

What is copyright not?

Just as important as defining what copyright is is stating what it is not. Often, people wrongly conflate copyright with the very different issues of patents, trademarks, etc. with the umbrella term of "intellectual property." As Stallman puts it,

"The term 'intellectual property' is at best a catch-all to lump together disparate laws. Nonlawyers who hear one term applied to these various laws tend to assume they are based on a common principle and function similarly.
Nothing could be further from the case. These laws originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues." [13]

Furthermore, advocates of copyright often draw confusing analogies that attempt to equate copyright infringement with actual social ills such as plagiarism [A]. These comparisons are invalid, and pointing them out as such will help to focus the discussion on the real issues.
Copyright has nothing to do with patents
Roughly speaking, copyright (US code title 17) applies to art whereas patents (US code title 35) apply to inventions. As an example, James Watt patented the steam engine since it was an invention, but would not have been able to patent a song that he wrote; a song falls into the legal domain of copyright. Patents, as opposed to copyrights, are not automatically granted by virtue of a work coming into existence — purported inventors must apply for and be granted a patent by the US Patent and Trademark Office. Patent law has its own serious problems and is also in desperate need of reform. But that is a topic for another article. The important thing for our purposes is to understand that patent and copyright laws cover completely different arenas. [B]
Copyright has nothing to do with trademarks and identity
Essentially, trademark is a protection against fraud. When one buys a can of Coca-Cola off of the supermarket shelf, the Coca-Cola trademark informs the buyer that the can is a legitimate product of the Coca-Cola company. If another soda manufacturer put a Coca-Cola label on its own cans, that would be a deceptive practice — the one that the legal protections of trademark were explicitly designed to prevent. Trademark law protects identity: it allows parties (such as sellers and buyers) to interact with one another with a certain assurance — the assurance that they are conducting transactions with whom they believe they are conducting transactions. There is no overlap in what trademark law and copyright law cover. [F]
Copyright has nothing to do with attribution or plagiarism
Copyright infringement is also unrelated to plagiarism. Plagiarism is the act of passing someone else's work off as one's own; that is, failing to properly attribute the work to the correct creator. Copyright infringement is the act of distributing a work without the copyright holder's permission. To infringe on the copyright for the Beatles' "Hey Jude," I could, for instance, copy the song over a computer network to another location. In contrast, to plagiarize the Beatles' "Hey Jude," I would have to go around attempting to convince others that I actually wrote the song. [G]
Plainly, misattribution and copyright infringement are different things, but you would not know that from listening to, say, Hilary Rosen of the RIAA. Plagiarism is the cardinal academic and artistic sin, so it is no surprise that the content industry attempts to channel the outrage directed at plagiarizers for their own purposes:

The RIAA also indulges in one of the favorite tactics of the modern copyright lobby: equating illegal copying with the unrelated, and much more serious, offense of plagiarism. For example, Hilary Rosen, the (now former) head of the RIAA, used to speak at schools and colleges, urging the students to adopt the industry's views about information ownership. Here is her own description of how she presents the case:

Analogies are what really work best. I ask them, "What have you done last week?" They may say they wrote a paper on this or that. So I tell them, "Oh, you wrote a paper, and you got an A? Would it bother you if somebody could just take that paper and get an A too? Would that bug you?" So this sense of personal investment does ring true with people.

Since people who duplicate CDs do not usually replace the artist's name with their own, let's ask the question Hilary Rosen should have asked: "Would it bother you if somebody could just show a copy of your paper around, so other people could benefit from what you wrote, and see that you got an A?" Of course, the students would have answered "No, we aren't bothered by that at all," which isn't what Rosen wanted to hear. [12] [26]

Deliberate attempts to confuse copyright infringement with plagiarism only obscure the real issues behind the two distinct concepts, to the detriment of anyone attempting to understand them.
Copyright infringement is not "stealing" nor "theft" nor "piracy"
Copyright advocates will often use derogatory terms such as "stealing" or "theft" or "piracy" to describe copyright infringement. Many in the mainstream media use these terms without questioning the implicit assumptions in these words, which biases the discussion from the outset. It is worthwhile to conduct an examination to see if these phrases are apt descriptions of the activity their users seek to characterize.
Theft is the taking of another person's property without that person's consent. Does, say, transmitting a copyrighted music file over a computer network — a clear case of copyright infringement — fit this definition of theft? (Note neither the sender nor the recipient is the owner of the copyright for that file in this example.) It does not, for a few reasons. First, the music file is non-rivalrous and non-excludable — technical terms in economics that mean nobody has less music after a copy is made, and both people can still enjoy use of the file. Contrast this with, for instance, a car: if it is stolen, the owner clearly can not use it. But no one really "took" the file because nobody was deprived of the use of it. Second, both parties must consent to the transaction for the file to be transmitted. Thus consent is clearly given, in contrast to theft.
What people really mean when they say "Copyright infringement is theft" is "The copyright owner is not getting paid per-copy for this particular transaction, and he would have been paid if this had been a conventional commercial transaction to obtain the information, such as the sale of a CD at Tower Records." This statement rests on a set of shaky assumptions. In particular, if the recipient needed to pay for the information, would he have sought to obtain it in the first place? In more personal terms, would you have bought a CD at retail price if you couldn't have gotten it for free? Other economic and psychological objections to this premise are discussed in [44].
The meaning of "piracy" has changed over the years, depending on who is flinging the insult at whom. In its modern incarnation, it is tantamount to an accusation of "theft" via copyright infringement. [29] [9]

A brief aside on computers and computer networks

Before the advent of computer technology, making copies of any kind of work (a book, a film, musical notation for a song) was laborious and potentially expensive. [C] But copying is an activity that personal computer users do many times a day, whether they know it or not. Copyright laws regulate much of this copying, thus making copyright law much more applicable to the average person than before. Since the nature of modern computer technology is core to the main arguments of this article, it is useful to quickly review what computers do with regard to copying and transmission of information.
The nature of information
On a computer, "information" is anything that can be digitized — that is, encoded in a sequence of zeros and ones ("bits"). This definition includes, but is not limited to, movies, music, software, photographs, and books. Physical objects like furniture, land or clothing can't be digitized and so don't fit this definition.
Information has two important properties: it is both non-exclusive and non-rivalrous. "Non-exclusive" means that any number of people can access and use it simultaneously. "Non-rivalrous" means that one person having more information doesn't imply that another person has less. The matrix below gives some examples of other goods to put things in perspective: [30] [D]

	Excludable	Non-excludable
Rivalrous	Private goods: food, clothing, toys, furniture, cars	Common goods (Common-pool resources): fish, hunting game, water
Non-rivalrous	Club goods: satellite television	Public goods: national defense, free-to-air television, air, information

The nature of computers
Computers fundamentally depend on copying to successfully operate. Without the ability to copy, computers would be stripped of much of their functionality. Computers copy in two cases: upon the instruction of the user, and as a performance enhancement.
In the first case, a user often commands a computer to copy bits from one location to another. Usually this is done in the context of a file. A file is nothing but a stream of bits (and therefore information) which happens to be managed by a particular software abstraction called a "file system". Of course, users can copy bits across file systems as well, as when a user copies a music file to an iPod or other digital media device.
The second case: most computer users are familiar with files, but not all are familiar with how computers copy information without the explicit permission of a user. For performance reasons that are beyond the scope of this article, computers are continuously moving information back and forth through the "memory-storage hierarchy." This hierarchy consists of various physical components that make up a computer: the hard disk, main memory (RAM), caches, registers, etc. Each level of this hierarchy has different performance characteristics: hard disks are large but slow, whereas registers are very fast but also scarce. Pre-emptive copying between levels of the hierarchy, called "caching," is necessary for good computer performance. Caching is real copying, and it happens automatically and very frequently (perhaps hundreds of times a second) without any user control.
The nature of computer networks
Computer networks also fundamentally depend on copying to successfully operate. If you are viewing this article over a computer network, then several copies of this text were made in the process of displaying it on your screen.
The information that is this text was probably copied from disk to main memory in the remote server computer. The information was then sent over the Internet via many hops between routers. Routers are the computers that enable the flow of information on the Internet. When a router receives information, it determines the destination of the information and then copies the information over a network connection to the next closest router to the destination (much like a central post office might inspect the destination street address of a letter and then deliver it to a closer branch office). Finally, when the information reached your computer, your computer copied the data from the network into main memory, and perhaps created a temporary file for that information. To display the text on your screen, the information was transformed in a way that would be legible and copied into a "frame buffer" — the part of main memory that controls what you see on the screen.
But there is even more copying going on than that! Just as computers "cache" information within the memory-storage hierarchy for performance reasons, computer networks also "cache" information at special computers at various points on the network to achieve good performance. It takes time to travel around the world to fetch information, so there are a variety of caches deployed throughout the world that remember certain information for a brief period of time. The result is this: for the period of time that a piece of information is cached, the distance that your computer needs to travel to get that information is significantly shortened — it only needs to go as far as the nearest cache, rather than the original source of the information. Again, this caching results in further copying of information automatically taking place without the explicit instruction of any user.
The nature of the Internet
The largest and best-known of all computer networks is, of course, the Internet. The Internet connects a multitude of disparate computer networks together to form a super-network where any computer that speaks IP ("Internet Protocol," not "Intellectual Property") can communicate with each other. Transmission of information over the Internet has four main properties: it is instantaneous, perfect, global and free.

Instantaneous:

Of course, transmission of information over the Internet is not instantaneous in the strict sense. Network latency is still bounded by the speed of light, and transmitting a large file like a DVD over a network still takes a non-negligible amount of time because bandwidth capacity is not infinite. However, network bandwidth is exponentially improving and is currently at the point where most Internet transmissions (web sites, images, etc.) are effectively instantaneous from a human perspective.

Perfect:

The Internet makes perfect copies of information. When a file is copied from one computer to another, the sequence of bits in that file at the destination computer is exactly the same as the sequence of bits in the origin computer. This is a marked contrast to older forms of copying (by hand, printing press, etc.) where a perfect copy was exceedingly difficult, if not outright impossible, to produce.

Global:

The Internet has no physical boundaries. Any computer connected to the Internet can contact any other computer on the Internet, regardless of its physical location.

Free:

Transmitting information over the Internet is essentially free in the gratis [E] sense. From the perspective of the end user, there is no marginal cost to sending an additional bit over the Internet.

Why copyright is detrimental to society

When it was invented, copyright seemed like a relatively benign legal instrument. Today, however, the implications of preventing copying of certain materials are downright insidious. What begins as a measure ostensibly for the public good instead leads to profound negative consequences for society. In this section I will enumerate some of these consequences.

Copyright enforcement necessarily entails monitoring of all computer communications, and therefore the destruction of online privacy

Laws exist to be enforced, otherwise they cease to have any power. The logical conclusion of enforcing copyright law is perfect monitoring of all systems that could potentially copy any copyrighted information. In the previous section, I established that computers are particularly good at making copies and the Internet is particularly good at distributing copies. Therefore, any enforcement of current copyright law would require surveillance of anything that goes in or out of a computer — a total monitoring of network communications. [H]
How would complete surveillance be implemented?
Routers and other computers on the Internet that copy information from source to destination don't actually look at the contents of the information to route the transmission. Instead, they only look at the headers — other information attached to the transmission which tells routers where to send the packet (the equivalent of the address on the outside of the envelope). Doing any additional inspection of the transmission beyond this simple routing is known as "Deep Packet Inspection" (DPI). DPI is the equivalent of the postman opening up envelopes sent through the postal service to look at their contents. With the use of DPI, any monitoring agent could determine the contents of the transmission and, perhaps with a little extra work, if those contents were copyrighted.
But the collateral damage of this scheme is huge. The fact is that there is no way to monitor for copyrighted content without monitoring all content. There is a reason why opening others' mail is a federal offense — postal privacy is necessary to preserve the confidence of those who use the postal service. The DPI of all Internet transmissions would be a similar offense, eliminating the privacy of any non-encrypted transaction over the Internet. [10]

Copyright law criminalizes a large percentage of the population

It should be clear at this point that anyone using computers, and especially computer networks, is probably guilty of some sort of copyright infringement. Every artistic work that is fixed in a tangible medium is automatically copyrighted, and computers copy things indiscriminately, often without the explicit approval of their users. This is a recipe for massive copyright infringement.
Infringement Nation
It might be surprising, however, just how much copyright law has permeated our lives, especially outside of the context of computer networks. In "Infringement Nation: Copyright Reform and the Law/Norm Gap," John Tehranian illustrates the ubiquity of copyright law by giving the hypothetical example of a law professor going through his day unknowingly accumulating copyright infringements. He doesn't do anything particularly out of the ordinary, but singing, taking photographs, etc. all somehow constitute a copyright infringement in their own unique way. At the end of the day, even without the use of file-sharing networks, Tehranian's hypothetical professor is liable for up to $12.45 million in civil damages, to say nothing of any criminal charges that might be brought against him. It is a demonstration that many normal activities, even offline, serve to implicate a person in copyright infringement. [1]
The effects of large-scale criminality
Clearly, the United States is not prepared to throw a sizable percentage of its population into jail (if only for the lack of jail cell space). But a more subtle change has already taken place. Any kind of criminality erodes one's civil liberties on an individual level. If one is suspected of a crime, one might have one's phone tapped or house under surveillance or computer seized for inspection. If one is convicted of a crime, one might lose other privileges — travel, voting, etc. But a society in which everyone is presumptively guilty of a particular crime (copyright infringement, in this case) is a society in which individual rights can be revoked at the whim of the authorities. This state of affairs is a profound blow to personal security and civil liberties. Electronic Frontier Foundation attorney Fred von Lohmann elaborates:

"If you can treat someone as a putative lawbreaker... then all of a sudden a lot of basic civil liberty protections evaporate to one degree or another... If you're a copyright infringer, how can you hope to have any privacy rights? If you're a copyright infringer , how can you hope to be secure against seizures of your computer? How can you hope to continue to receive Internet access? ... Our sensibilities change as soon as we think, "Oh, well, but that person's a criminal, a lawbreaker." Well, what this campaign against file sharing has done is turn a remarkable percentage of the American Internet-using population into "law-breakers." ... So when we're talking about numbers like forty to sixty million Americans that are essentially copyright infringers, you create a situation where the civil liberties of those people are very much in peril in a general matter. [I don't] think [there is any] analog where you could randomly choose any person off the street and be confident that they were committing an unlawful act that could put them on the hook for potential felony liability or hundreds of millions of dollars of civil liability. Certainly we all speed, but speeding isn't the kind of an act for which we routinely forfeit civil liberties. Some people use drugs, and I think that's the closest analog, [but] many have noted that the war against drugs has eroded all of our civil liberties because it's treated so many Americans as criminals. Well, I think it's fair to say that file sharing is an order of magnitude larger number of Americans than drug use... If forty to sixty million Americans have become lawbreakers, then we're really on a slippery slope to lose a lot of civil liberties for all forty to sixty million of them." [25 p.207]

Copyright law chills academic research

Copyright has evolved from merely being a prohibition of distribution for commercial profit in certain cases to a device used to censor free speech when that speech is counter to a copyright holder's financial interests. Researchers, in particular, have been affected. Two examples of this are the cases of Ed Felten and Dmitry Sklyarov.
Ed Felten
Ed Felten was a computer science professor who in April 2001 was preparing to submit a paper on the weaknesses in an encryption scheme developed by the Secure Digital Music Initiative. SDMI had previously invited anyone who thought they could break the encryption to attempt to do so, but only if they reported the results back to SDMI so they could improve the product. Felten and colleagues took up the challenge. But before presenting a paper documenting their exploits at an academic conference, Felten et al received a threat from SDMI that releasing their research could be illegal under the Digital Millennium Copyright Act. The logic behind this injunction was that "By publishing a paper describing how a copyright protection system could be circumvented, the RIAA lawyer suggested, Felten himself was distributing a circumvention technology. Thus, even though he was not himself infringing anyone's copyright, his academic paper was enabling others to infringe others' copyright." [25 p.155-158] [23]
Dmitry Sklyarov
In July 2001, Russian programmer Dmitry Sklyarov was arrested during the Defcon security conference in Las Vegas. At the conference he had publicized a way to circumvent the copy protection on Adobe System's eBooks. Sklyarov was eventually acquitted and allowed to return to Russia, but the case can hardly be seen as a conclusive victory for copyright law scope limitations. The jury acquitted Sklyarov on very narrow grounds that never really addressed the legitimacy or legality of copyright law itself: "Because both the defense and prosecution agreed that ElcomSoft [Sklyarov's employer] sold software designed to crack copyright protections, the case essentially turned on ElcomSoft's state of mind during the period it was offering the software." [38]
Not only does this intimidation suppress active research that the targets of the injunctions are doing, it also discourages future endeavors in the academic area. Sklyarov said he would make sure any more computer security research he did would have to decisively fall within the realm of legality (never mind how vaguely defined legality is in this space). [39] For a more exhaustive list of uses of DMCA notices to halt security research, see [40].

Copyright law's reach already extends to many things, and is expanding with no end in sight

The original provisions for copyright were very narrow. The original Copyright Act in the 18th century only endowed the authors of maps, charts and books with copyrights for fourteen years (28 with an optional one-time renewal), and only under certain conditions (authors had to be American, authors had to register their works, etc.). However, as copyright scholar Lawrence Lessig remarks in The Future of Ideas, "The distinctive feature of modern American copyright law is its almost limitless bloating — its expansion both in scope and in duration." [24 p.106]
Expansion in duration
Copyright's duration has expanded rapidly in the past half century after remaining relatively stagnant since the founding of the country. In 1831, Congress extended the maximum copyright term to 42 years and again in 1909 to 56 years. Since 1962, however, Congress has taken the liberty of extending copyright eleven times, with the Sonny Bono Copyright Term Extension Act of 1998 being the most recent extension. Congress also abolished the "renewal periods" in 1976, so that copyrighted works would not pass into the public domain even if the copyright holder had no interest in keeping his or her copyright (or was otherwise unable to renew it). If that sounds like a negligible change, consider that in 1973, more than 85 percent of copyright owners failed to renew their copyright. Today, the maximum term of copyright stands at 95 years. [25 p.131-135]
Expansion in scope
The expansion in duration of copyright has mirrored its expansion in scope. As previously mentioned, only maps, charts and books were originally protected. Now, the question seems to be "What is not protected?" Protection extends to architecture, drama, performances, software, etc. The original Copyright Act only prohibited republishing, but modern copyright law prohibits any derivative works, performance or transformation of the original work. Renewals have been completely abolished. Registration for copyright has also been completely abolished — now it is automatically granted. Lessig writes:

"If you write a book, your book is automatically protected. Indeed, not just your book. Every e-mail, every note to your spouse, every doodle, every creative act that's reduced to a tangible form — all of this is automatically copyrighted. There is no need to register or mark your work. The protection follows the creation, not the steps you take to protect it." [25 p.136-139]

Furthermore, original copyright law restricted only commercial activity. Modern copyright law restricts both commercial and noncommercial activity. [25 p.170-171]
Examples of copyright law expansion
The following three episodes demonstrate just how poisonous dramatically expanding copyright law can be.

1. The Sonny Bono Copyright Term Extension Act of 1998 was an especially egregious law because it implemented a retroactive copyright extension, meaning that it extended the copyright term for works that had already been created. This flies in the face of copyright's ostensible purpose, which is incentivize creation of works that had not already been brought into existence. It makes no sense to give more of a financial incentive to someone to create something that has already been created.
   
2. The state of Oregon is not unique, but particularly aggressive, in enforcing copyright law with regard to the reproduction of its own state law. Restricting the distribution of laws which one must follow in order to avoid becoming a criminal raises serious public policy concerns. How is one supposed to follow the law if copies of the law are not widely accessible and available? Furthermore, the public paid for these laws already, through taxes, not copyright royalties. [33]
   
3. The AACS Licensing Authority (tasked with administering the AACS copy protection scheme) issued Digital Millennium Copyright Act takedown notices — letters officially requesting the removal of material on copyright grounds — targeting a variety of sites. Those sites' infractions? Publishing a number that the AACS LA thought it had exclusive distribution of because the number was integral to its copy protection scheme [34]. Ed Felten, no stranger to the DMCA himself, explains why claiming ownership over a number seems so orthogonal to the original purpose of copyright law:
   

   "Giving a private party ownership of a number seems deeply wrong to people versed in mathematics and computer science. Letting a private group pick out many millions of numbers (like the AACS secret keys), and then simply declare ownership of them, seems even worse.
   "While it's obvious why the creator of a movie or a song might deserve some special claim over the use of their creation, it's hard to see why anyone should be able to pick a number at random and unilaterally declare ownership of it. There is nothing creative about this number — indeed, it was chosen by a method designed to ensure that the resulting number was in no way special. It's just a number they picked out of a hat. And now they own it? ...
   "When the great mathematician Leopold Kronecker wrote his famous dictum, "God created the integers; all else is the work of man", he meant that the basic structure of mathematics is part of the design of the universe. What God created, AACS LA now wants to take away." [45]
   

For further examples of DMCA takedowns issued for supposed online infractions of copyright law, see [35].
What does the future hold?
If the past serves as a good predictor of the future, the reach of copyright law will arbitrarily extend in scope and duration. However, we don't even need to speculate about what legislators might consider implementing because many of the bills have already been introduced. Consider the INDUCE Act, which would effectively outlaw peer to peer networks [36]. Or the Intellectual Property Protection Act, which does not simply criminalize copyright infringement but attempted copyright infringement as well [37]. For even more copyright proposals, see the list on page 246 of Against Intellectual Monopoly [3].

Copyright law creates a corporate information police, undermining accountability and due process

The Digital Millennium Copyright Act empowers every content owner to be responsible for enforcing his or her copyrights. Large content corporations, such as the constituent members of the Motion Picture Association of America and Recording Industry Association of America, have not been timid about doing so. Their objective is not fairness nor justice; their objective is profit. Copyright law puts enforcement of the law in the hands of an ad hoc corporate information police who have a history of abusing their power.
Abusive, vindictive litigation
Violators of copyright infringement are liable for up to $150,000 in damages per work under current copyright law. Needless to say, it is rare to find someone who can pay this amount. Using massive, unpayable potential damages as a cudgel, content industry lawyers often manage to convince would-be defendants to pay them around $4,000 to avoid a lawsuit. In the case where this generous offer fails, the content industry has shown itself to be more than willing to bring the full brunt of its lawyers down on hapless folks including:

• Brittany Chan, who allegedly engaged in file sharing when she was 13 years old
• Defendants who are disabled and incapable of using a computer
• At least one defendant who was deceased — the RIAA intended to continue to move forward with the case before negative publicity caused the organization to withdraw the case [41]

The cards in these cases are incredibly stacked against the defendants. The content industry is suing under laws that they themselves pressed for passage in Congress. They are almost ensured a victory, since copying copyrighted content is something of which virtually every computer user is guilty. And the pockets of the content industry are deeper than those of the average defendant, since the plaintiffs tend not to pick wealthy people to sue. This dynamic flips the concept of due process on its head: guilt is assumed, and innocence must be proven.
A lack of accountability
Various studies have shown that the content industry lawyers are overzealous to the point of being irresponsible in issuing DMCA notices. Their strategy depends on the very imprecise practice of harvesting IP addresses from peer to peer networks and then attempting to identify a person based on his or her IP address. IP addresses usually do not have a one-to-one mapping to people. In fact, a research group at the University of Washington managed to receive 500 DMCA takedown notices for a printer on their network, which is incapable of any file sharing. [42] Similarly, a Princeton professor received many nonsensical DMCA takedown requests for services that were not running on his content distribution network. [21] The requirement to send one of these notices is a "good faith" belief that copyright infringement is taking place. However, there is no regulatory authority that needs to approve a sending of a notice. Additionally, copyright owners have an incentive to send out as many notices as possible, given that there is no downside for misidentification and the upside could be several thousand dollars or more. They are essentially a form of targeted spam, but unfortunately one that the recipient cannot afford to ignore.

Copyright law erodes the public domain and free culture

Copyright law exists, in theory, so that artistic works can be contributed to the public domain. When virtually no works are entering the public domain, however, the theoretical argument for copyright largely disappears. This is the case today: large content owning corporations own vast swaths of copyrights that they refuse to license to independent artists (or only do so at a high to unreasonably high rate [50]). The result is a culture controlled by the few corporate entities lucky enough to have amassed the necessary copyrights to reuse and remix the culture of the past one hundred years. These corporations profit from the government-enabled monopolistic largess flowing into their pockets, and the public loses. As Lessig puts it in Free Culture, "Never in our history have fewer had a legal right to control more of the development of our culture than now." [25 p.170]
But what about "fair use"?
Written into copyright law is an exception called "fair use." This provides a potential user of a copyrighted work the right to use that work, within limits. What these limits are, however, are not clearly defined. There exists a formula, written into the legal code, to determine whether a use of a copyrighted work is "fair" or not. Regardless of the input to the formula, the output is always the same: maybe it's fair use; talk to an attorney. This protection is decidedly flimsy. The case of filmmaker Jon Else is typical:

"I did, in fact, speak with one of your colleagues at Stanford Law School ... who confirmed that [my use of a clip from The Simpsons] was fair use. He also confirmed that Fox would "depose and litigate you to within an inch of your life," regardless of the merits of my claim. He made clear that it would boil down to who had the bigger legal department and the deeper pockets, me or them." [25 p.98]

(Aside: "Fair use" is a term that I put in the same category as "intellectual property" and "piracy" as phrases that decidedly bias a discussion in favor of the interests of content owners. What makes use of a work unfair, by default? Why is use that is fair the exception? To unquestioningly use the term "fair use" is to not seriously address these important questions.)

Copyright law poses large economic costs to society

Not only does copyright law take a toll on privacy and due process, it also burdens society in terms of dollars. It is difficult to quantify the economic cost to society of having, maintaining, and enforcing copyright and I am not aware of any study that attempts to do so. However, it can be established that the costs are significant.
Costs come in two forms. The first is the actual transfer in dollars from one party to the other. The second cost is in time, which can be converted into dollars by considering the opportunity cost of dealing with copyright. Opportunity cost is the value of the next-best choice available for how that time could have been spent. For instance, the next-best choice for an artist to clearing the rights for a new work of art (which is a legal necessity) is making more art. The opportunity cost for the artist, therefore, is the profit he would have gained by making more art.
Here is a partial list of costs incurred to support the present American copyright apparatus:

• The cost of maintaining a US copyright office (and all time spent by individuals interacting with the office)
• The time spent by elected officials in crafting, debating and passing new copyright laws
• The cost to comply with copyright law by schools, libraries, photocopying businesses, etc.
• The time spent by US attorneys prosecuting criminal copyright cases
• The schooling and training of privately employed copyright lawyers
• The salaries of privately employed copyright lawyers
• The salaries of managers who oversee intellectual property divisions within a corporation
• The salaries of judges, bailiffs, stenographers, policemen, and other court employees when copyright cases are heard
• Royalties paid for copyright licenses
• Damages awarded in civil copyright lawsuits
• The salaries of lobbyists who advocate additional copyright reform
• Lastly and most importantly, the economic activity that would have occurred if the transmission, modification and/or redistribution of certain information were not prohibited

Copyright law prevents the Internet from fulfilling its promise

The Internet is the most powerful mechanism for human communication ever devised. The potential uses of free, instantaneous, global, perfect information distribution are practically limitless. Limitless, that is, if we do not hinder ourselves with the restrictions of copyright law.
Per-copy royalties are nonsensical when copying is free and unlimited
The marginal cost of making a copy of information on the network is essentially zero. Since there is no quota on maximal copying, one can make as many copies as one wants of particular information; the supply is infinite. A supply and demand model of economics dictates that if supply is infinite, prices drop to zero. The only reason that anyone should pay for a copy of anything is that there is a limited number of copies. In other words, copies are scarce because there is a finite supply. Charging for every copy might make sense in certain kinds of markets, but not one for non-rivalrous, non-excludable goods like information.
John Gilmore's take
Electronic Frontier Foundation co-founder John Gilmore has similar sentiments:

"What is wrong is that we have invented the technology to eliminate scarcity, but we are deliberately throwing it away to benefit those who profit from scarcity. We now have the means to duplicate any kind of information that can be compactly represented in digital media. We can replicate it worldwide, to billions of people, for very low costs, affordable by individuals. We are working hard on technologies that will permit other sorts of resources to be duplicated this easily, including arbitrary physical objects ("nanotechnology"; see http://www.foresight.org). The progress of science, technology, and free markets have produced an end to many kinds of scarcity. A hundred years ago, more than 99% of Americans were still using outhouses, and one out of every ten children died in infancy. Now even the poorest Americans have cars, television, telephones, heat, clean water, sanitary sewers — things that the richest millionaires of 1900 could not buy. These technologies promise an end to physical want in the near future.
"We should be rejoicing in mutually creating a heaven on earth! Instead, those crabbed souls who make their living from perpetuating scarcity are sneaking around, convincing co-conspirators to chain our cheap duplication technology so that it won't make copies — at least not of the kind of goods they want to sell us. This is the worst sort of economic protectionism — beggaring your own society for the benefit of an inefficient local industry. The record and movie distribution companies are careful not to point this out to us, but that is what is happening." [23]

Conclusion

Lessig once wrote that "No one serious in this debate is promoting the abolition of copyright." [24 p.xvi] Those words were already not true when he wrote them, and they are even less true now. With the downsides to copyright law so apparent and consequential, many are becoming decidedly more serious about this proposal. Copyright is a trade-off that the public makes with specific authors — a trade-off in which the public has recently been getting shortchanged. If the public is not reaping any benefit from a policy — indeed, massively suffering from it — it is only reasonable and responsible to advocate for its reversal. The time has come to seriously consider putting an end to copyright.

Responses

"But how will X make money if copyright is eliminated?"

This question, in my experience, is the most frequent response to the suggestion that copyright should be eliminated. X could be anyone that supposedly profits from the current copyright regime: artists, software engineers, etc. It is important to recognize that this question carries along with it an assumption about the copyright system which is wrong — namely, the belief that the objective of copyright is to subsidize certain professions. So before answering the original question, I will discuss the assumption.
Copyright is a means, not an end
Copyright is a means to an end, the end being the creation of artistic works. The monopoly given out via a copyright is not an end unto itself — in fact, any monopoly is a nonoptimal and undesirable economic arrangement, all other things being equal. So it is wrong to be primarily concerned about the revenue of people that may have profited under this scheme because their earnings were not the point of the policy of copyright in the first place. There is no Constitutional right to the success of a particular business model.
Perhaps an analogy will clarify. Suppose a government determines that national defense is a priority for the country. Because defense is so important, the government will consider granting nonoptimal economic arrangements to certain entities to further defense. Accordingly, monopolies are granted to certain defense contractors to build helicopters, cruise missiles and stealth bombers. Suppose further that, subsequently, an era of world peace dawns and the government decides that national defense is no longer as high of a priority. The government therefore dramatically cuts the defense budget which terminates the aforementioned contracts with the defense contractors. At this point someone comes along and asks, "But how will the defense contractors continue to make money now that world peace has been achieved?" The answer is that it is beside the point: giving public funds to defense contractors was only useful to the end of defense. But since the same objectives have been achieved by other means, there is no further need for this arrangement.
The point is there is no a priori obligation on the part of society to ensure that a certain profession is subsidized. That is not to say that what people that profit from copyright do is not important; of course it is. They just will have to play by the rules that all the professions that do not benefit from copyright play by — competition and innovation under the free market.
Freedom of information does not imply economic ruin
So can artists, software engineers, etc. continue to make money without artificial constraints on the distribution of information? Of course they can!
In Against Intellectual Monopoly, Boldrin and Levine point out several instances where the absence of copyright has not led to bankruptcy — quite the opposite, in fact. They give the example of authors in the nineteenth century who demanded an advance from a book publisher in return for a promise of sending the publisher the first finished work, enabling the publisher to get a first-mover advantage that would ensure profits. In modern times, they point to similar arrangements on works that are not copyrighted such as the 9-11 Commission Report that still bring in healthy earnings for publishers (even when the text is freely, legally downloadable from a web site). For breaking news stories, they argue, many often pay to get access to the headlines first, even though the same will eventually be available to the public at a later time. Other examples of industries that became profitable in the absence of copyright include the nineteenth century printed sheet music industry, the early twentieth century movie industry and the modern pornography industry. [3 p.22-39] Finally, it is worth recognizing that copyright is a relatively recent invention, and much material that would now be copyrighted was still being created before copyright's advent:

"For at least three thousand years, musical and literary works have been created in pretty much every society, and in the complete absence — in fact, often under the explicit prohibition — of any kind of copyright protection. For the economic and legal theories of "no innovation without monopolization," this plain fact is as inexplicable a mystery as the Catholic dogma of virginitas ante partum is for most of us." [3 p.30]

Kevin Kelly takes a different approach in demonstrating potential profitability in an age of unrestricted copying: "When copies are free, you need to sell things which can not be copied... Well, what can't be copied?" He offers the example of trust as something that is incapable of being copied. Also, he continues, immediacy, personalization, interpretation, authenticity, accessibility, embodiment, patronage, and findability are avenues to profit since none of them can be copied, either. Kelly also mentions advertising (which he does not elaborate on in his article) as a proven method of monetization. [5]
Karl Fogel points out a variety of current and future models that are working and could potentially work as businesses. He gives the example of the Free Software movement as an example of a successful post-copyright movement. Many companies, including Red Hat, Sun, IBM, and Google utilize the freely (as in libre [E]) available software for their own ends — some to sell support, and some to build web applications. He believes that as other industries start to come to grips with a post-copyright reality, those industries will start looking more like the modern software industry. Fogel highlights a few alternate business models that could sustain workers in a post-copyright world: fund-and-release, corporate patronage and micropayment patronage. [12]
Some, including Swedish Pirate Party founder Rick Falkvinge, go as far as to assert that the elimination of copyright will not change any business practices significantly. As he says, "What makes a profit today will make a profit tomorrow." [11] For instance, performing artists reap concert revenues from performances without the aid of copyright.
Finally, it is worth noting that there will be many business methods and opportunities that we can not foresee. The innovation that a competitive free market demands of its participants will undoubtedly produce previously unimagined ways of doing things as it has in the past. Our inability to presently enumerate them does not imply their future nonexistence.

"It is true that certain present aspects of copyright are undesirable, but the basic idea seems sound. Couldn't we tweak copyright law to eliminate your objections?"

No.
Certainly there are improvements that could be made to copyright law to mitigate some of the damage I discuss. For instance, one could imagine reinstating copyright renewals and mandatory registration so that much more work would fall into the public domain sooner. There is also room for improvement in the DMCA takedown process; perhaps the requirement of getting a judge's approval to proceed with the notice would reduce the number of fraudulent takedowns issued.
However, the vast majority of the problems would be unsolved even with legislative modifications, because the problems are intrinsic to copyright law. That is, they derive at the most basic level from the restrictions that copyright law puts in place. Further copyright laws would not fix copyright's economic costs, the erosion of privacy, the large-scale criminalization of the populace, the information police problem, etc.
Also, as a practical matter, one wonders how these enlightened reforms would be passed and upheld in the first place. Remember that both the legislature and the judiciary have presided over bloating increases in both the scope and duration of copyright.

"Aren't your complaints more about the DMCA and/or DRM than copyright itself?"

No.
It is true that some of the problems I discuss follow from the application of DRM and the DMCA. DRM ("Digital Rights Management") is a technology that allows companies to enforce their own arbitrary copyright policies. Circumvention of these policies by users of DRM'ed devices is prohibited by the DMCA. In the case of Dmitry Sklyarov, the intersection of these two phenomena caused his arrest. The DMCA is a case in point for the dramatic expansion in scope of copyright law.
However, my response is similar my response to the question of whether we could simply eliminate the undesirable parts of copyright law. Would eliminating or rewriting the DMCA make things better? Perhaps, but it wouldn't address the problems intrinsic to copyright itself. Furthermore, given the expanding tentacles of copyright, it is not hard to imagine that if the DMCA did not exist copyright would soon grow to cover essentially the same things as the DMCA does now.

"Your article's coverage of the advantages of copyright is lacking. How can you expect readers to fairly judge the value of copyright if you only present one side?"

(Why does no one ask this question when the copyright lobby claims that copyright is necessary to preserve civilization?)
If my article's coverage of copyright's upsides are lacking, that is only because there are so few advantages to begin with, not because of deliberate omission on my part. I gave these upsides short treatment in the "Why does copyright exist?" section, but will elaborate here.
Copyright has two supposed advantages. The first is the monopoly that the author enjoys; this is an advantage to the author (more realistically, the publisher) alone. It is a disadvantage to the rest of society, which must pay the monopoly-determined price to obtain, redistribute or transform the work (or, not pay the price at all if the author refuses to distribute/license it). The second advantage is to society when artistic works are produced that would not have been otherwise. As my response to the question "But how will X make money if copyright is eliminated?" shows, this is a dubious advantage since there is no evidence that artistic production suffers without copyright law. In summary, the first advantage only benefits the monopolist to the detriment of society and the second is not an advantage at all.
In any case, the point of this article is to point out the copyright's problems, which often go unacknowledged. In light of the limited benefits copyright might bring, it is my opinion that the loss of privacy, elimination of due process, erosion of accountability, huge economic cost, imposition of criminality, public domain deterioration and Internet limitations that copyright imposes are not worth the bargain.

"Is anyone actually advocating Deep Packet Inspection on the Internet, or is that just a straw man you set up?"

I said in the referenced section, "The logical conclusion of enforcement of copyright law is perfect monitoring of all systems that could potentially copy any copyrighted information." What exists right now is a crude approximation to that logical conclusion. The tactic for detecting copyright infringement presently seems to be harvesting the IP addresses of file sharers via monitoring of the P2P application networks themselves. This is a far from perfect tactic, and DPI would certainly be more effective. DPI is also not the only way that perfect monitoring could be achieved: instead of monitoring the network, the end hosts (that is all users' computers) could instead be monitored. By mandating installation of spyware to detect copyrighted material, the same perfect surveillance would be achieved. See [48] for a discussion of these issues.
The content industry has been lobbying for stricter enforcement of copyright law, the logical conclusion of which is total surveillance (done by DPI, for instance), so there is reason to believe that the era of DPI-enabled copyright enforcement is not far off. See the French Three Strikes copyright law for an example. [47] Rock musician Bono's opinion is typical of those in the content industry who advocate for total surveillance to prevent copyright infringement: "We’re the post office, [the Internet Service Providers] tell us; who knows what’s in the brown-paper packages? But we know from America’s noble effort to stop child pornography, not to mention China’s ignoble effort to suppress online dissent, that it’s perfectly possible to track content." [49]
DPI is a multi-use technology, and detection of copyright infringement is not how the majority of DPI equipment is used (for the time being). Mostly it is used for "traffic shaping" to make some information flow through the network faster than other information, for a variety of reasons. See [46] for a good overview of DPI technology and the DPI industry.

"Wouldn't eliminating copyright also void copyleft licenses?"

Some licenses, including the GNU General Public License (which covers the GNU/Linux kernel) and the Creative Commons Attribution Share Alike license (which covers Wikipedia), are "copyleft" licenses. In contrast to copyright licenses, copyleft licenses state that no one has an exclusive right to distribute the work. Copyleft licenses further stipulate that additional distribution of the work (or derivations) must be done under the same terms as the original work.
Copyleft licenses do depend on copyright for enforcement. So it is technically correct that abolition of copyright, all other things being equal, would void all copyleft licenses. However, it seems rather unlikely that Congress, having become sufficiently informed to realize the need for serious copyright law reform or abolition, would fail to take copyleft licences under consideration. Congress could abolish copyright but preserve copyleft provisions under a different legal mechanism.

References and Further Reading

[1] Tehranian, John. "Infringement Nation: Copyright Reform and the Law/Norm Gap." Utah Law Review Vol.2007 (2007): p.537. Also available at https://www.law.utah.edu/_webfiles/ULRarticles/155/155.pdf

[2] Barlow, John Perry. "The Economy of Ideas." Wired March 1994. http://www.wired.com/wired/archive/2.03/economy.ideas_pr.html

[3] Boldrin, Michele and Levine, David K. Against Intellectual Monopoly. Cambridge: Cambridge University Press, 2008. Also available at http://levine.sscnet.ucla.edu/general/intellectual/againstfinal.htm

[4] Abelson, Hal and Ledeen, Ken and Lewis, Harry. Blown To Bits. Upper Saddle Rivier, NJ: Addison-Wesley, 2008.

[5] Kelly, Kevin. "Better than Free." 2 May 2008. http://www.edge.org/3rd_culture/kelly08/kelly08_index.html

[6] Stallman, Richard. "The Right to Read." Communications of the ACM Volume 40, Number 2 (1997). Also available at http://www.gnu.org/philosophy/right-to-read.html

[7] Stallman, Richard. Free Software, Free Society. Boston: GNU Press, 2002. Note: other articles by Stallman that I used and cited separately are also included in this book, which is also available at http://www.gnu.org/philosophy/fsfs/rms-essays.pdf

[8] Clarke, Ian. "Freenet Philosophy." http://freenetproject.org/philosophy.html

[9] Stallman, Richard. "Words to Avoid." http://www.gnu.org/philosophy/words-to-avoid.html

[10] Schneier, Bruce. "The Value of Privacy." 19 May 2006. http://www.schneier.com/blog/archives/2006/05/the_value_of_pr.html

[11] Falkvinge, Rick. "Copyright Regime vs Civil Liberties." http://video.google.com/videoplay?docid=4472314929478865652#

[12] Fogel, Karl. "The Surprising History of Copyright and The Promise of a Post-Copyright World." 9 October 2005. http://questioncopyright.org/promise

[13] Stallman, Richard. "Did you say 'Intellectual Property'? It's a Seductive Mirage." 2004. http://www.gnu.org/philosophy/not-ipr.html

[14] Stallman, Richard. "Why Software Should Not Have Owners." 1994. http://www.gnu.org/philosophy/why-free.html

[15] "The Problem." Digital Freedom Web Site http://www.digitalfreedom.org/the_issue/index.html

[16] Doctorow, Cory. Authors@Google http://www.youtube.com/watch?v=xgXwmXpaH2Q

[17] Shapiro, Samantha M. "Hip-Hop Outlaw (Industry Version)." New York Times Magazine 18 February 2007. http://www.nytimes.com/2007/02/18/magazine/18djdrama.t.html

[18] Anderson, Nate. "100 Years of Big Content fearing technology — in its own words." Ars Technica. 11 October 2009. http://arstechnica.com/tech-policy/news/2009/10/100-years-of-big-content-fearing-technologyin-its-own-words.ars

[19] "Photoshop of Horrors" The Rachel Maddow Show http://www.youtube.com/watch?v=tFaSzOJ92zU&NR=1

[20] "Apology for singing shop worker" BBC News. 21 October 2009. http://news.bbc.co.uk/2/hi/uk_news/scotland/tayside_and_central/8317952.stm

[21] Freedman, Mike. "Inaccurate Copyright Enforcement: Questionable "best" practices and BitTorrent specification flaws" Freedom to Tinker. 23 November 2009. http://www.freedom-to-tinker.com/blog/mfreed/inaccurate-copyright-enforcement-questionable-best-practices-and-bittorrent-specificatio

[22] US copyright law. http://www.law.cornell.edu/uscode/17/

[23] Gilmore, John. "What's Wrong With Copy Protection." 16 February 2001. http://www.toad.com/gnu/whatswrong.html

[24] Lessig, Lawrence. The Future of Ideas. New York: Vintage Books, 2001. Also available at http://www.the-future-of-ideas.com/

[25] Lessig, Lawrence. Free Culture. New York: The Penguin Press, 2004. Also available at http://www.free-culture.cc/freecontent/

[26] Fogel, Karl. "New York University Confuses File Sharing with Plagiarism." QuestionCopyright.org 7 August 2007. http://questioncopyright.org/nyu_note_on_illegal_downloading

[27] US Copyright Office. "Copyright in General." http://www.copyright.gov/help/faq/faq-general.html

[28] US Copyright Office. "Copyright Basics." http://www.copyright.gov/circs/circ1.pdf

[29] Stallman, Richard. "Copyright and Globalization in the Age of Computer Networks." 2001. http://www.gnu.org/philosophy/copyright-and-globalization.html

[30] Wikipedia — Rivalry (Economics) http://en.wikipedia.org/wiki/Rivalry_(economics)

[31] US Constitution Copyright Clause. http://topics.law.cornell.edu/constitution/articlei#section8

[32] Stallman, Richard. "Misinterpreting Copyright — A Series of Errors." 2002. http://www.gnu.org/philosophy/misinterpreting-copyright.html

[33] Doctorow, Cory. "Oregon: our laws are copyrighted and you can't publish them." BoingBoing. 15 April 2008. http://www.boingboing.net/2008/04/15/oregon-our-laws-are.html

[34] Felten, Ed. "AACS Plays Whack-a-Mole with Extracted Key." Freedom to Tinker. 1 May 2007. http://freedom-to-tinker.com/blog/felten/aacs-plays-whack-mole-extracted-key

[35] Chilling Effects chillingeffects.org

[36] McCullagh, Declan. "Senate bill would ban P2P networks." CNET News. 23 June 2004. http://news.cnet.com/Senate-bill-bans-P2P-networks/2100-1027_3-5244796.html

[37] McCullagh, Declan. "Gonzales proposes new crime: 'Attempted' copyright infringement." CNET News. 15 May 2007. http://news.cnet.com/8301-10784_3-9719339-7.html

[38] Bowman, Lisa M. "ElcomSoft verdict: Not guilty." CNET News. 17 December 2002. http://news.cnet.com/2100-1023-978176.html

[39] Bowman, Lisa M. "Sklyarov reflects on DMCA travails." CNET News. 20 December 2002. http://news.cnet.com/2100-1023-978497.html

[40] Electronic Frontier Foundation. "Unintended Consequences: Ten Years Under the DMCA." http://www.eff.org/wp/unintended-consequences-ten-years-under-dmca

[41] Beckerman, Ray. "How the RIAA Litigation Process Works." 9 April 2008. http://beckermanlegal.com/pdf/?file=/howriaa.htm

[42] Anderson, Nate. "Study paints grim picture of automated P2P enforcement." Ars Technica. 5 June 2008. http://arstechnica.com/old/content/2008/06/study-paints-grim-picture-of-automated-dmca-notice-accuracy.ars

[43] Tummon, Jacob. "The case for the Death of Copyright." The Vancouver Sun. 20 February 2008. http://www.canada.com/vancouversun/news/editorial/story.html?id=9c7df727-ab6e-4427-9281-0e2eac3f2643&p=1

[44] Oberholzer-Gee, Felix and Strumpf, Koleman S. "The Effect of File Sharing on Record Sales: An Empirical Analysis." Journal of Political Economy, Vol. 115, pp. 1-42, February 2007. Also available at www.unc.edu/~cigar/papers/FileSharing_June2005_final.pdf

[45] Felten, Ed. "Why the 09ers Are So Upset." Freedom to Tinker. 3 May 2007. http://freedom-to-tinker.com/blog/felten/why-09ers-are-so-upset

[46] Anderson, Nate. "Deep packet inspection meets 'Net neutrality, CALEA." Ars Technica. 26 July 2007. http://arstechnica.com/hardware/news/2007/07/Deep-packet-inspection-meets-net-neutrality.ars

[47] Anderson, Nate. "French anti-P2P law toughest in the world." Ars Technica. 10 March 2009. http://arstechnica.com/tech-policy/news/2009/03/french-anti-p2p-law-toughest-in-the-world.ars

[48] Freedman, Mike. "Erroneous DMCA notices and copyright enforcement, part deux." Freedom to Tinker. 15 December 2009. http://www.freedom-to-tinker.com/blog/mfreed/erroneous-dmca-notices-and-copyright-enforcement-part-deux

[49] Bono. "Ten for the Next Ten." The New York Times. 2 Jan 2010. http://www.nytimes.com/2010/01/03/opinion/03bono.html

[50] Paley, Nina and Fogel, Karl. "How Copyright Restrictions Suppress Art: An Interview With Nina Paley About "Sita Sings The Blues" QuestionCopyright.org 11 November 2008. http://questioncopyright.org/nina_paley_sita_interview

[A] See [12] for a particularly egregious example of this tactic by Hilary Rosen, former head of the RIAA.

[B] See [3] for a good discussion of patent reform

[C] See [29] for a brief overview

[D] For more properties of bits, see the "Koans" in [4 p.4-13]

[E] "Free" has two meanings in English. The first meaning (as in "free beer") and the one used here corresponds to the French gratis. The second meaning (as in "free to control your own destiny") corresponds to the French libre. Often the French is used to disambiguate.

[F] Trademark, as it happens, stands alone as the one member of the "intellectual property" club that needs little to no reform.

[G] The proper type of law to protect against plagiarism would be trademark law, since plagiarism steals the author's identity, thus depriving both the author and the public of the benefits of accurate attribution. This is exactly what trademark is designed to prevent. Unauthorized copying, on the other hand, reinforces the author's identity: regardless of whether copies are legal, they still accurately give the true author's name, and thus reinforce the author's connection to the work.

[H] This anti-surveillance argument was one of the main planks of Sweden's Pirate Party, a serious political party which went on to win two seats in the European Parliament in 2009 largely on the basis of concerns about digital civil liberties.

Acknowledgments

Thanks to the following people for their comments on this article: Mark Sauchelli, Diego Ongaro, Kyle Knutson, Aston Motes, Avi Flamholz, Lewis Marshall, Bud Colligan, Daniel Matthews, Todd Davies, Erick Hachenburg, Karl Fogel.

License

What We Lose When We Embrace Copyright by Danny Colligan is licensed under a Creative Commons Attribution 3.0 United States License.