William Patry, one of the most respected online commentators on copyright, has shut down his weblog. His parting observation is stated in the personal, non-analystical style he liked to cultivate online, but it will serve as a declaration of policy (as well as a cry of protest) among artistic and technically creative people for some time to come:
The Current State of Copyright Law is too depressing
It so happens that copyright is a major subject covered in a book recently released by O'Reilly, Van Lindberg's Intellectual Property and Open Source A Practical Guide to Protecting Code. This blog continues with an excerpt from Van's book about how copyright got to the state it's in, then a brief statement of my own.
The movie Antitrust came out at the height of the dot-com boom. Antitrust was Hollywood's take on the geek chic of the late 1990s: the story of a few heroic open source hackers taking on an evil, grasping corporation situated in the Pacific Northwest.
Predictably, it was awful.
Buried among all the things that this movie got wrong, though, was one thing it got right: early in the movie, the protagonist is seen wearing a T-shirt that labels him a "code poet." In one phrase, they captured why software is subject to copyright law--because it is a form of personal expression, not just a means of accomplishing some function.
Understanding the subtle distinctions inherent in that statement is essential to understanding the storms of controversy that inevitably arise around copyright issues.
Copyright is probably the most difficult of the four major branches of intellectual property law. Although patent documents (and some aspects of patent practice) are more complex and intricate than the copyright equivalents, the underlying mechanics of the patent system are relatively simple.
However, copyright has a far more human dimension than the mechanical results of inventive effort; it is much more about who we are than about what we do. As a result, copyright is much more subtle than patent law. In particular, there are two fundamental differences between patents and copyrights:
Patent law covers function; copyright law covers expression.
You have to work to get your invention into the protected space of patents. You have to work to get your expression out of the protected space of copyright.
The social and legal difficulties of copyright law can mostly be traced to one or both of these fundamental principles.
The first fundamental principle is that copyright protects personal expression in all its varieties. This is both the great strength and compelling weakness of copyright. The copyright model creates strong incentives to expand the creator's control in many directions, despite the significant societal benefits that come from sharing copyrightable expression.
Copyrightable expression, by design, is closely tied to the personality of its creator. As a result, people often feel much more strongly connected to their copyrighted works than other forms of intellectual property. Copyright law respects the intimate tie between creator and creation, in part by giving the authors of copyrighted works a very long term of protection--currently the life of the author plus 70 years for most works. During this term, the author is granted control over almost all use of the work as well as rights in derivative works (works adapted from the originally copyrighted item).
This tight control is generally accepted in our society, perhaps because of the personal link between expression and authorship. If you have ever felt ripped off when someone took your idea, your words, or your work and called it their own, you have felt the strong personal pull of copyright.
On the other hand, shared creative expression plays an important role in our society. Human beings are social animals, and we connect with each other through our personal expressions. Considered as a whole, culture is just the product of many personal expressions mixed together.
This is true both on a micro and on a macro level. On the micro level, consider the well-known movie Monty Python and the Holy Grail. This movie is not the result of a single personal expression; rather, it is a collective expression, the result of many people working together. Most obvious is the writing and acting of the Monty Python comedy troupe. There were also, however, creative and expressive inputs from animators, camera operators, costumers, lighting and sound designers, musicians, møøse trainers, and many others. The name "Monty Python and the Holy Grail" is just a shorthand for the collective expressive efforts that went into the movie.
The various movie awards ceremonies are good examples of recognizing the individual creative expressions that went into the whole. In those ceremonies, the collective expression is only recognized once, with the "Best Movie" award. Every other award is given for individual creative expressions incorporated into the whole--the best actors, costumers, editors, directors, and others.
On a macro level, our culture as a whole is tied inseparably to the many bits of expression, both individual and collective, that it contains. Just like Monty Python and the Holy Grail, our "culture" is a shorthand for the expressive efforts of many people. It is not just Picasso, Jane Austen, J.K. Rowling, George Lucas, and Tim Burton. It is not limited to the writers of blogs, the composers of music, the choreographers of plays, and everyone else whose work involves creating copyrighted content. Our culture is also created by you and all the people around you as you talk, write, work, and live each day. It consists entirely of shared copyrightable expression.
Further, copyrighted expression has become a cultural and symbolic shorthand for communication. For example, saying that someone "is a Homer Simpson" invokes copyrighted expression to communicate a personal point. In a more extreme example, there are people who primarily communicate by quoting other people's expressions; think of those who respond to almost every question with quotes from Monty Python or Napoleon Dynamite.
As Danah Boyd points out in the article "when media becomes culture: rethinking copyright issues," we appropriate more than just words for communication. People use photos and animated "smilies" to show their moods. We associate different ringtones with different people. We display our attitudes, affiliations, and personality by putting logos, pictures, and quotes on our T-shirts. Hip-hop in particular has a long history of sampling--using little bits of other songs remixed into a new composition. We have become like Mrs. Who (from Madeline L'Engle's A Wrinkle In Time) or Bumblebee (from the 2007 Transformers movie), using other people's expressions to express ourselves (it is amusing that this paragraph is itself an example of the point it seeks to communicate).
Boyd's point is that, to a certain extent, the "content" industries are victims of their own success. They have successfully managed to get their work incorporated into popular culture. They have done this in part by building upon the cultural heritage of prior shared expression, and in turn, their works have become part of our shared culture, available for a new generation of authors and artists to use.
The problem is that the strong personal protections of copyright are in conflict with the shared nature of culture. The economic benefits of copyright are built on controlling expression, while the social and cultural benefits of copyright are based upon sharing expression.
This problem of control puts copyright into a difficult economic position, comparable to the original market failure that prompted the development of copyright. Of course this is an issue with patents too, but the much shorter term of patent protection mitigates the problem. In the copyright world, the combination of strong controls, long terms, and widespread incentives to share sets up a persistent unstable dynamic.
The powerful individual inclination toward control of copyrightable material has resulted in political pressure for the strengthening of copyright protection. In fact, the story of copyright from the 1700s until about 1990 has been almost entirely a story of lengthening terms (from 14 years to life plus 70 years), increasing scope (from only particular types of works to almost all works), and stronger protections (from restrictions on publishing rights only to restriction of almost all uses).
Only recently have people started feeling a contrary pull toward less restriction on copyrighted material. The primary reason for this shift is the Internet, and more broadly, the rise of digital media. This new technology has empowered a larger percentage of the population to create new works and express themselves artistically, but as new people have entered into the creative space, they have found the well of our common culture increasingly dry.
The "content" industries, having ridden a century-long wave of popular support of strong copyright, have established legal and business models that depend on the existing copyright regime. Meanwhile, popular sentiment is shifting away from support of strong copyright, and people are "voting with their feet" by sharing music and movies, remixing and mashing up content from other providers, and generally disregarding many of the established boundaries of copyright.
The second primary driver of copyright is that expressions are copyrighted by default. This is a relatively new development, and it has changed the fundamental balance of copyright in our economy and in our society.
Defaults have enormous power. Just ask Microsoft; its enormous market share in operating systems and web browsers is almost entirely due to the power of defaults. When you buy a computer, it is possible to get any operating system you want. You can go to apple.com and get a Macintosh, or find someplace that is willing to sell you a computer with Linux (or even other operating systems) preinstalled.
If you take no unusual steps, however, and just buy the first acceptable computer that you see, you will end up buying Microsoft Windows. It is the default choice, and because it works well enough, and is available, it has become most people's preferred choice.
Similarly, when Internet Explorer came out in the mid-1990s, most people agreed that it wasn't as good a browser as Netscape Navigator. Besides, those who were interested in the Internet had already downloaded Netscape; there was usually no reason to change.
As people upgraded their computers and their operating systems, however, they were faced with a choice: go to extra trouble to download Netscape onto the new computer, or just use the pre-installed Internet Explorer. The key market share driver for Internet Explorer, at least initially, wasn't the quality of the browser; it was the browser's simple presence on the desktop. It may not have been the best, but it was there, it was good enough, and it worked. In three years' time, Internet Explorer went from an also-ran to overwhelmingly dominant, largely by the power of being the default.
Defaults are also a key part of the history of copyright. There are two aspects of copyright where the default has changed over time: in the application of copyright protection to a work, and in the nature of works eligible for protection.
It used to be that expressions were not copyrighted by default. As with patents, the creator had to explicitly register the work with the United States Copyright Office. Failure to register the work didn't only mean that it was not copyrighted when it was published, it meant that it could not ever be copyrighted, even later.
Further, copyrighting the work took effort. Not much effort, but it was not economically profitable to spend the few dollars required to copyright each work unless your business model depended upon your legal control of the expression. Therefore, the great majority of the stories, songs, jokes, sayings, and paintings that imbued American culture were in the public domain and freely shared.
This changed with the Copyright Act of 1976. The 1976 Act removed the requirement that new works be registered to receive copyright protection. Instead, the Act created a system of protection for all "original works of authorship," published or unpublished, from the moment they were "fixed in a tangible medium of expression."
This change in defaults was profound; it shifted the landscape around copyright. Before the Act, people needed to expend time and effort to have copyright applied to their works. This minimal barrier of registration resulted in a significant drop-off in the application of copyright; only a percentage of all works were copyrighted. Immediately after the implementation of the 1976 Act, people needed to expend time and effort to keep copyright from applying to their works. The result was that essentially all new works were copyrighted--copyright became the natural state of new creative expression.
The change in expectations was so pervasive that a few people started to argue about the existence of the public domain. Under the new law, the public domain was defined in the negative as the absence of copyright protection. According to one scholar, you couldn't place works into the public domain; you could only decline to enforce your copyright. Similarly, works with expired copyrights weren't in a place called the "public domain" because there was no such place. Instead, they were works with no-longer-enforceable copyrights.
The second change to the defaults in copyright has been the types of works that are eligible for copyright protection. This is a different issue from the defaults in the application of copyright law, but the changes are similar in their reach.
By way of analogy, think of defaults in the area of network security. Assume that you have a default that "a security policy must be applied to all incoming traffic." That is like the default application of copyright discussed earlier; every new work is measured against the copyright standard, just as every incoming packet is inspected as it comes into a secure network.
On the other hand, simply saying that, "a security policy must be applied" does not tell you anything about which traffic will ultimately be allowed through the firewall. That depends on a completely different set of factors that must be analyzed independently.
When deciding which sort of traffic should be allowed through your firewall, there are two basic choices. You can have a default allow policy, which grants access unless there is a rule in place denying the connection, or you can have a default deny policy, which forbids access unless there is a rule allowing the connection. Default deny policies are considered safer, but they are more work to configure and maintain; any time some new application has to access the network, the firewall rules must be changed to allow the new connection.
The history of copyright in the United States can also be seen as a movement from a default deny to default allow policy for copyright. Specifically, under previous copyright acts, only specifically enumerated types of works were eligible for copyright protection. For example, the Copyright Act of 1790 (the first copyright act instituted in the United States) only allowed protection for books, maps, and charts. If you created something else, it was ineligible for copyright protection.
This was the default deny policy of copyright at work. Unless there was a specific provision in the law allowing copyright protection for your category of work, you had no protection at all.
The result of this policy was tremendous pressure on Congress to amend the Copyright Act to allow new types of protections and new types of works. For example, the Copyright Act was amended in 1802 to allow "historical and other prints." Then it was amended to provide protection for paintings and musical compositions. It was amended again to provide protection for dramatic works, photographs, and sculptures. Each time a new medium came to the forefront of the copyright scene, the law had to be amended to allow protection.
The tipping point came in the early 1900s. You may be familiar with player pianos that read piano rolls--sheets of paper with perforations representing different notes. Although piano rolls allowed the reproduction of pieces of music, a 1908 court case called White-Smith v. Apollo decided that they were not in the allowed category of sheet music, and were thus not protectable. The court stated:
"These perforated rolls are parts of a machine which, when duly applied and properly operated in connection with the mechanism to which they are adapted, produce musical tones in harmonious combination. But we cannot think that they are copies within the meaning of the copyright act."
Sheet music publishers were outraged. Partially as a result of this decision, Congress passed a revision to the Copyright Act the next year. The Copyright Act of 1909 gave the copyright owner of a musical work the exclusive right "to make any arrangement or record in which the thought of an author may be recorded and from which it may be read or reproduced." Recording studios are still vigorously applying the controls this Act granted them when they prosecute people for exchanging MP3 files.
In addition, the 1909 Act took the first step toward a default allow policy for copyright. Rather than just setting up a new protected statutory category for piano rolls, Congress decided to try to handle this situation in a more flexible and permanent manner. Specifically, the 1909 Copyright Act was much more expansive in its language when it described what would be considered a "Copyrightable Work" (some individual classifications are omitted here; emphasis in original):
"The works for which copyright may be secured under this Act shall include all the writings of an author.
"[The] application for registration shall specify to which of the following classes the work in which copyright is claimed belongs: Books, ... Periodicals, ... Works of art,... Photographs, ...
"Provided nevertheless, That the above specifications shall not be held to limit the subject-matter of copyright as defined in section four of this Act, not shall any error in classification invalidate or impair the copyright protection secured under this Act."
Under this new, more flexible language, all works were swept into one basic category--the "copyrighted work." All copyrighted works received the same basic protection. There were a few classes of works, such as dramatic works, that received additional protection. However, the creation of an omnibus class of copyrighted works significantly simplified the administration of copyright under the 1909 Act. When new forms of art were developed, such as films, they could be included under "all the writings of an author" and would be covered by copyright.
The Copyright Act of 1976 was the culmination of this evolution. Just as the 1976 Act changed the defaults for the application of copyright to new works, it also completed the transition from a default deny to a default allow policy for the types of works eligible for copyright protection. The 1976 Act declared that copyright protection could apply (and would apply) to all "original works of authorship." This intentionally broad and inclusive language was designed to include any work that showed originality--the result of decisionmaking by a creative mind.
Many people don't realize that for most of the history of copyright, it was legal for people to make as many personal copies of books works as they wanted, as long as it was strictly for personal use. The restriction on personal copying is of relatively recent vintage, only dating back to 1915 or so.
The reason is that "copy" has multiple meanings: it is both a noun and a verb. As a verb, copy has the common meaning, "to reproduce or imitate." As a noun, copy is "a collection of written material or a complete work." The word is still used in the noun sense in the publishing industry: a "copy editor" is somebody who edits written material (the "copy"), not somebody who manages the reproduction of content.
In its original sense, copyright was a publishing right. Only somebody who had rights over the work as a whole (the "copy" as a noun) was able to publish and distribute the work. Individual use was not even addressed; if a person wanted to copy (the verb) an entire book, he or she was free to do so. Individual reproduction was not an economic threat to content publishing because it didn't scale.
Section two of the Copyright Act of 1831 makes this clear: those granted a copyright had "the sole right and liberty of printing, reprinting, publishing, and vending" the work (in other words, all publishing-related rights. Obviously, reproduction (copy as a verb) was required for publication of the work (copy as a noun), but they were two different things. This small distinction is important to understanding the state of copyright today.
When paintings and statues were added to the list of works that could be copyrighted, there was some concern as to how the copyright on something like a statue might be infringed. Statues couldn't be mechanically reproduced and "published" like books.
The problem was that a second artist could get around the exclusive rights granted under the law by creating a new work that was for all intents and purposes a copy--a republication--of the existing copyrighted work. To prevent this sort of gaming of the system, Congress inserted the word "copy" (verb sense) into the Copyright Act of 1870 as a specific protection against the violation of the rights of artistic reproduction. The following excerpt is from the Restated Copyright Act of 1874:
A contemporary reading of this passage would suggest that all copying would be prohibited. However, there were different penalties imposed for the infringement of books and the infringement of other artistic works. Significantly, copying was not listed as a trigger for the infringement of books. Therefore, the turn-of-the-century understanding of copyright law was that artistic works could not be copied, but there was no limitation on the private copying of books--only on publication.
More specifically, only copies of books that were sold in competition to the publisher were considered to infringe the copyright. The following image shows an excerpt from an influential copyright treatise at the time (Evan James MacGillivray, A Treatise Upon the Law of Copyright: In the United Kingdom and the United States, J. Murray, 1902, at 287-288).
In contrast, the rights reserved to authors and creators of artistic works were much broader. The next image shows the difference:
The significant difference between these two passages is that all copying of artistic works was explicitly forbidden, but there was an implicit acceptance of private, personal-use copies of books and other literary materials.
This ignores state common law copyright, which applied to works immediately upon fixation (and sometimes even before). Nevertheless, publication terminated all common law rights, and after publication, the work became either public domain or federally copyrighted and governed by the law quoted above.
This changed with the Copyright Act of 1909. The 1909 Act was the first step toward the "protectable by default" standard described earlier, and as such, it was much more expansive in its language when it described what would be considered a "copyrightable work." Again from the Act:
"The works for which copyright may be secured under this Act shall include all the writings of an author.
[The] application for registration shall specify to which of the following classes the work in which copyright is claimed belongs: Books, ... Periodicals, ... Works of art,... Photographs, ..."
Notice that books, periodicals, works of art, and other sorts of works were all included under the same "copyrighted work" umbrella. Further, all copyrighted works received the same basic protection; they were subject to the copyright holder's exclusive right "to print, reprint, publish, copy, and vend the copyrighted work" (Copyright Act of 1909, Section 1a, emphasis added).
In one stroke, the creation of a single base standard for copyrighted works reserved to copyright holders the right to restrict all copies of literary works, even those made exclusively for personal, unpublished use.
Stepping aside from the history for a moment, I noted before that this situation is not too different from designing a security policy or writing a regular expression. Having personally made the mistake of being overinclusive in those other contexts, it is my personal opinion that the 1909 prohibition on private copying of literary works was a mistake. Not necessarily a mistake in the sense that "they should not have done that," but rather a mistake in the sense that it was an unintended extension of the law.
It is possible that the expansion of the prohibition on personal-use copying was an intended consequence of the 1909 Act, but there is no discussion in the Congressional Record about that change. Instead, the discussions were focused on the simplification of the statute and the mechanical reproduction of music, specifically, on reversing the White-Smith decision about piano rolls.
Regardless of whether it was a mistake, however, the language of the statute made copying in all contexts subject to the restrictions of copyright. In the 1917 publication of A Treatise on the Law of Copyright and Literary Property (American Law Book Co.), William Benjamin Hale noted that, "Strictly, even a single copy made for private use is an infringement." By the mid-1920s, restrictions on personal copying were regularly upheld by the courts.
The restriction on personal-use copying of books is essential to the copyright protection of software today. Software is copyrighted as a literary work, in the same category as books. There is no restriction, even today, on reading or using a copyrighted work.
In the computer world, the analogue to reading is executing a program. As a result, there is no restriction whatsoever in copyright law on executing a program written and copyrighted by someone else. However, to read or execute something on a computer, you must copy it. Copying, in fact, is one of the most fundamental operations of a computer.
For example, imagine you are using your web browser to read something on the Internet. The text you are reading had copyright applied to it when it hit the disk, or maybe even the RAM, on the author's computer. Then a copy of that information was brought into memory and sent over the network to the web server. The web server put a copy in RAM and then another copy on disk. When you asked for a copy of the HTML file, the web server copied the information into RAM again, sent another copy over the network (creating intermediate copies in caching servers) until it got to your computer. Your computer made a copy in RAM, maybe cached a copy on the disk, and then sent another copy to the video memory, where it finally shows up for you to read.
The copyright statute tries to deal with this issue by allowing "the owner of a copy of a computer program to make or authorize the making of another copy or adaptation of that computer program provided... that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner." Nevertheless, some companies (and courts) have used the existence of these various copying mechanisms to apply copyright protections to the running of software.
For example, Vivendi Universal and Blizzard software have sued a company called MDY to prevent the distribution of a program that automates certain aspects of Blizzard's World of Warcraft game. Blizzard argues that its license agreement prohibits the use of unapproved software connected to the game. Use of MDY's program violates the license, because making a copy of the game residing in RAM is an infringement on Blizzard's copyrights. This case is still in the courts and will probably be decided sometime in 2008.
The primary limitation copyright owners' control of the use of copyrighted material is a principle called fair use. In general, fair use allows the copying, distribution, and use of copyrighted material, without permission, for transformative or important purposes. Courts created the doctrine of fair use in an effort to balance the rights of copyright holders with the rights of society at large. Courts recognized that there was value in allowing some copying of copyrighted material, particularly for important functions such as teaching, scholarship, and political speech. Some of the principles around fair use were finally codified as part of the Copyright Act of 1976.
The most important factor in fair use analysis is the effect of the fair use upon the market (or potential market) for the original work. This factor is more important than all the others, and copyright holders can almost always make an argument that any particular use of copyrighted material can negatively affect the market, or again, a potential market, for the copyrighted work.
In one case, for example, a sculptor made a sculpture based upon a photograph from another artist. Even though the original photographer could not sculpt and therefore could not have created the sculpture, the court ruled that this was not a fair use because it negatively affected the market for authorized sculptures related to the photograph.
To make things simpler, the easiest way to reason about copyright is assume that any use of a copyrightable work is legally reserved to the copyright owner. That is the power of defaults at work. The control granted by copyright isn't quite that broad, but identifying specific uses as being outside of copyright can be difficult and tricky, and the law can change under you if your application pushes the boundaries of what is acceptable.
For example, you may be familiar with the Grokster case, MGM Studios, Inc. v. Grokster, Ltd. When the Grokster peer-to-peer network was created, the established rule in copyright law was that a technology sometimes used for copyright infringement would not be prohibited if it had substantial noninfringing uses as well (the "Sony" rule, named after Sony Corp. v. Universal City Studios). The owners of the Grokster network felt that they were safe, because the underlying peer-to-peer technology was used for legitimate content, swarm distribution of material, and dissident political expression--all substantial noninfringing uses.
In the Supreme Court's decision in this case, the court created the new doctrine that inducing copyright infringement was prohibited under the same terms as copyright infringement itself. Because Grokster encouraged and derived revenue from the massive amounts of copyright infringement happening during use of its system, Grokster itself was liable and had to shut down.
It is unfortunate that under the current copyright law, the most accurate predictions about prospective cases usually come from borrowing from the branch of academia known as legal realism. Legal realism is a cynical interpretive strategy that sees all law in terms of political power structures; the reasoning behind individual decisions is nothing more than window dressing for underlying political biases and power struggles.
Under a legal realist analysis, any use of copyrighted material that was objectionable or questionable would be struck down as infringing. Nonobjectionable use of copyrighted material would be allowed only if the political and economic interests in support of the use were more powerful than the political and economic interests against the use. Unfortunately, this is, in my opinion, the best guide to the outcome of any future copyright case.
Now, back to Andy's comments.
Van's book has the admirable goal of educating the public--particularly those who work creatively with computers and digital media, which is an awful lot of people--about copyrights and other legal artifacts of the digital age. (Read the book itself to see why Van used the words "Intellectual Property" in the title.)
Sometimes education--which contributes to what Lawrence Lessig and other law professors call "norms"--is not enough. To keep people from lying, cheating, and stealing, one needs law. Law can have give effects as well as bad ones--sometimes in the same clause--so we must try to change the laws with bad effects. Education and norms have limited success in the face of bad law, such as the current copyright regime.
Lessig's noble defense of the public domain in the 2003 Eldred v. Ashcroft case ended in a disappointing defeat, demonstrating that the public interest has a limited impact in an environment dominated by entrenched powers. The court actually cited the international Berne Convention in its ruling against Eldred, showing that these powers have the money to work on a worldwide stage and cannot be defeated merely by action in the U.S.
I say this as an employee of a company that tries the mantain the centrism that Patry, Van, and Moody mention: to exert reasonable rights in order to extract a reasonable profit, while supporting forward-looking efforts such as the Creative Commons Founders' Copyright and Google's book scanning initiative.
We currently need copyright because it gives us a space in which to exercise our expertise and make a living by adding to the world's collection of high-quality content. Don't forget that most of the companies supporting the current copyright regime (companies so derided by copyright critics) also produce high-quality content that people love.
But we all need a challenge to keep evolving long with changes across society. Education, such as Lessig and Van Lindberg and many other lawyers offer (I recommend Jessica Litman's Digital Copyright also to people who care about these issues) can eventually produce change. It can help us find a way out of the debilitating battles that companies carry on currently with their customers, and proceed to forms of contributions more congruent with the tremendous potential of digital networks. I'll be reporting on more initiatives in this space soon.