Part III. Copyright, Copyleft
Chapter 17.
The Right to Read: A Dystopian Short Story
From The Road to Tycho, a collection of articles about the antecedents of the Lunarian Revolution, published in Luna City in 2096.
From The Road to Tycho, a collection of articles about the antecedents of the Lunarian Revolution, published in Luna City in 2096.
For Dan Halbert, the road to Tycho began in college—when Lissa Lenz asked to borrow his computer. Hers had broken down, and unless she could borrow another, she would fail her midterm project. There was no one she dared ask, except Dan.
This put Dan in a dilemma. He had to help her—but if he lent her his computer, she might read his books. Aside from the fact that you could go to prison for many years for letting someone else read your books, the very idea shocked him at first. Like everyone, he had been taught since elementary school that sharing books was nasty and wrong—something that only pirates would do.
And there wasn’t much chance that the SPA—the Software Protection Authority—would fail to catch him. In his software class, Dan had learned that each book had a copyright monitor that reported when and where it was read, and by whom, to Central Licensing. (They used this information to catch reading pirates, but also to sell personal interest profiles to retailers.) The next time his computer was networked, Central Licensing would find out. He, as computer owner, would receive the harshest punishment—for not taking pains to prevent the crime.
Of course, Lissa did not necessarily intend to read his books. She might want the computer only to write her midterm. But Dan knew she came from a middle-class family and could hardly afford the tuition, let alone her reading fees. Reading his books might be the only way she could graduate. He understood this situation; he himself had had to borrow to pay for all the research papers he read. (Ten percent of those fees went to the researchers who wrote the papers; since Dan aimed for an academic career, he could hope that his own research papers, if frequently referenced, would bring in enough to repay this loan.)
Later on, Dan would learn there was a time when anyone could go to the library and read journal articles, and even books, without having to pay. There were independent scholars who read thousands of pages without government library grants. But in the 1990s, both commercial and nonprofit journal publishers had begun charging fees for access. By 2047, libraries offering free public access to scholarly literature were a dim memory.
There were ways, of course, to get around the SPA and Central Licensing. They were themselves illegal. Dan had had a classmate in software, Frank Martucci, who had obtained an illicit debugging tool, and used it to skip over the copyright monitor code when reading books. But he had told too many friends about it, and one of them turned him in to the SPA for a reward (students deep in debt were easily tempted into betrayal). In 2047, Frank was in prison, not for pirate reading, but for possessing a debugger.
Dan would later learn that there was a time when anyone could have debugging tools. There were even free debugging tools available on CD or downloadable over the net. But ordinary users started using them to bypass copyright monitors, and eventually a judge ruled that this had become their principal use in actual practice. This meant they were illegal; the debuggers’ developers were sent to prison.
Programmers still needed debugging tools, of course, but debugger vendors in 2047 distributed numbered copies only, and only to officially licensed and bonded programmers. The debugger Dan used in software class was kept behind a special firewall so that it could be used only for class exercises.
It was also possible to bypass the copyright monitors by installing a modified system kernel. Dan would eventually find out about the free kernels, even entire free operating systems, that had existed around the turn of the century. But not only were they illegal, like debuggers—you could not install one if you had one, without knowing your computer’s root password. And neither the FBI nor Microsoft Support would tell you that.
Dan concluded that he couldn’t simply lend Lissa his computer. But he couldn’t refuse to help her, because he loved her. Every chance to speak with her filled him with delight. And that she chose him to ask for help, that could mean she loved him too.
Dan resolved the dilemma by doing something even more unthinkable—he lent her the computer, and told her his password. This way, if Lissa read his books, Central Licensing would think he was reading them. It was still a crime, but the SPA would not automatically find out about it. They would only find out if Lissa reported him.
Of course, if the school ever found out that he had given Lissa his own password, it would be curtains for both of them as students, regardless of what she had used it for. School policy was that any interference with their means of monitoring students’ computer use was grounds for disciplinary action. It didn’t matter whether you did anything harmful—the offense was making it hard for the administrators to check on you. They assumed this meant you were doing something else forbidden, and they did not need to know what it was.
Students were not usually expelled for this—not directly. Instead they were banned from the school computer systems, and would inevitably fail all their classes.
Later, Dan would learn that this kind of university policy started only in the 1980s, when university students in large numbers began using computers. Previously, universities maintained a different approach to student discipline; they punished activities that were harmful, not those that merely raised suspicion.
Lissa did not report Dan to the SPA. His decision to help her led to their marriage, and also led them to question what they had been taught about piracy as children. The couple began reading about the history of copyright, about the Soviet Union and its restrictions on copying, and even the original United States Constitution. They moved to Luna, where they found others who had likewise gravitated away from the long arm of the SPA. When the Tycho Uprising began in 2062, the universal right to read soon became one of its central aims.
The right to read is a battle being fought today. Although it may take 50 years for our present way of life to fade into obscurity, most of the specific laws and practices described above have already been proposed; many have been enacted into law in the US and elsewhere. In the US, the 1998 Digital Millennium Copyright Act (DMCA) established the legal basis to restrict the reading and lending of computerized books (and other works as well). The European Union imposed similar restrictions in a 2001 copyright directive. In France, under the DADVSI law adopted in 2006, mere possession of a copy of DeCSS, the free program to decrypt video on a DVD, is a crime.
In 2001, Disney-funded Senator Hollings proposed a bill called the SSSCA that would require every new computer to have mandatory copy-restriction facilities that the user cannot bypass. Following the Clipper chip and similar US government key-escrow proposals, this shows a long-term trend: computer systems are increasingly set up to give absentees with clout control over the people actually using the computer system. The SSSCA was later renamed to the unpronounceable CBDTPA, which was glossed as the “Consume But Don’t Try Programming Act.”
The Republicans took control of the US senate shortly thereafter. They are less tied to Hollywood than the Democrats, so they did not press these proposals. Now that the Democrats are back in control, the danger is once again higher.
In 2001 the US began attempting to use the proposed Free Trade Area of the Americas (FTAA) treaty to impose the same rules on all the countries in the Western Hemisphere. The FTAA is one of the so-called free trade treaties, which are actually designed to give business increased power over democratic governments; imposing laws like the DMCA is typical of this spirit. The FTAA was effectively killed by Lula, President of Brazil, who rejected the DMCA requirement and others.
Since then, the US has imposed similar requirements on countries such as Australia and Mexico through bilateral “free trade” agreements, and on countries such as Costa Rica through another treaty, CAFTA. Ecuador’s President Correa refused to sign a “free trade” agreement with the US, but I’ve heard Ecuador had adopted something like the DMCA in 2003.
One of the ideas in the story was not proposed in reality until 2002. This is the idea that the FBI and Microsoft will keep the root passwords for your personal computers, and not let you have them.
The proponents of this scheme have given it names such as “trusted computing” and “Palladium.” We call it “treacherous computing” because the effect is to make your computer obey companies even to the extent of disobeying and defying you. This was implemented in 2007 as part of Windows Vista; we expect Apple to do something similar. In this scheme, it is the manufacturer that keeps the secret code, but the FBI would have little trouble getting it.
What Microsoft keeps is not exactly a password in the traditional sense; no person ever types it on a terminal. Rather, it is a signature and encryption key that corresponds to a second key stored in your computer. This enables Microsoft, and potentially any web sites that cooperate with Microsoft, the ultimate control over what the user can do on his own computer.
Vista also gives Microsoft additional powers; for instance, Microsoft can forcibly install upgrades, and it can order all machines running Vista to refuse to run a certain device driver. The main purpose of Vista’s many restrictions is to impose DRM (Digital Restrictions Management) that users can’t overcome. The threat of DRM is why we have established the Defective by Design campaign.
When this story was first written, the SPA was threatening small Internet service providers, demanding they permit the SPA to monitor all users. Most ISPs surrendered when threatened, because they cannot afford to fight back in court. One ISP, Community ConneXion in Oakland, California, refused the demand and was actually sued. The SPA later dropped the suit, but obtained the DMCA, which gave them the power they sought.
The SPA, which actually stands for Software Publishers Association, has been replaced in its police-like role by the Business Software Alliance. The BSA is not, today, an official police force; unofficially, it acts like one. Using methods reminiscent of the erstwhile Soviet Union, it invites people to inform on their coworkers and friends. A BSA terror campaign in Argentina in 2001 made slightly veiled threats that people sharing software would be raped.
The university security policies described above are not imaginary. For example, a computer at one Chicago-area university displayed this message upon login:
This system is for the use of authorized users only. Individuals using this computer system without authority or in the excess of their authority are subject to having all their activities on this system monitored and recorded by system personnel. In the course of monitoring individuals improperly using this system or in the course of system maintenance, the activities of authorized user may also be monitored. Anyone using this system expressly consents to such monitoring and is advised that if such monitoring reveals possible evidence of illegal activity or violation of University regulations system personnel may provide the evidence of such monitoring to University authorities and/or law enforcement officials.
This is an interesting approach to the Fourth Amendment: pressure most everyone to agree, in advance, to waive their rights under it.
• United States Patent and Trademark Office, Intellectual Property [sic] and the National Information Infrastructure: The Report of the Working Group on Intellectual Property [sic] Rights, Washington, DC: GPO, 1995.
• Samuelson, Pamela, “The Copyright Grab,” Wired, January 1996, n. 4.01.
• Boyle, James, “Sold Out,” New York Times, 31 March 1996, sec. 4, p. 15.
• Editorial, Washington Post, “Public Data or Private Data,” 3 November 1996, sec. C, p. 6.
• Union for the Public Domain—an organization that aims to resist and reverse the overextension of copyright and patent powers.
Copyright © 1996, 2002, 2007, 2009, 2010 Richard Stallman
This essay was written in 1996 and was published in Communications of the ACM, vol. 40, n. 2, February 1997. This version is part of Free Software, Free Society: Selected Essays of Richard M. Stallman, 2nd ed. (Boston: GNU Press, 2010).
Verbatim copying and distribution of this entire chapter are permitted worldwide, without royalty, in any medium, provided this notice is preserved.
Chapter 18.
Misinterpreting Copyright—A Series of Errors
Something strange and dangerous is happening in copyright law. Under the US Constitution, copyright exists to benefit users—those who read books, listen to music, watch movies, or run software—not for the sake of publishers or authors. Yet even as people tend increasingly to reject and disobey the copyright restrictions imposed on them “for their own benefit,” the US government is adding more restrictions, and trying to frighten the public into obedience with harsh new penalties.
How did copyright policies come to be diametrically opposed to their stated purpose? And how can we bring them back into alignment with that purpose? To understand, we should start by looking at the root of United States copyright law: the US Constitution.
Copyright in the US Constitution
When the US Constitution was drafted, the idea that authors were entitled to a copyright monopoly was proposed—and rejected. The founders of our country adopted a different premise, that copyright is not a natural right of authors, but an artificial concession made to them for the sake of progress. The Constitution gives permission for a copyright system with this clause (Article I, Section 8, Clause 8):
[Congress shall have the power] to promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
The Supreme Court has repeatedly affirmed that promoting progress means benefit for the users of copyrighted works. For example, in Fox Film v. Doyal,[1] the court said,
The sole interest of the United States and the primary object in conferring the [copyright] monopoly lie in the general benefits derived by the public from the labors of authors.
This fundamental decision explains why copyright is not required by the Constitution, only permitted as an option—and why it is supposed to last for “limited times.” If copyright were a natural right, something that authors have because they deserve it, nothing could justify terminating this right after a certain period of time, any more than everyone’s house should become public property after a certain lapse of time from its construction.
The “Copyright Bargain”
The copyright system works by providing privileges and thus benefits to publishers and authors; but it does not do this for their sake. Rather, it does this to modify their behavior: to provide an incentive for authors to write more and publish more. In effect, the government spends the public’s natural rights, on the public’s behalf, as part of a deal to bring the public more published works. Legal scholars call this concept the “copyright bargain.” It is like a government purchase of a highway or an airplane using taxpayers’ money, except that the government spends our freedom instead of our money.
But is the bargain as it exists actually a good deal for the public? Many alternative bargains are possible; which one is best? Every issue of copyright policy is part of this question. If we misunderstand the nature of the question, we will tend to decide the issues badly.
The Constitution authorizes granting copyright powers to authors. In practice, authors typically cede them to publishers; it is usually the publishers, not the authors, who exercise these powers and get most of the benefits, though authors may get a small portion. Thus it is usually the publishers that lobby to increase copyright powers. To better reflect the reality of copyright rather than the myth, this article refers to publishers rather than authors as the holders of copyright powers. It also refers to the users of copyrighted works as “readers,” even though using them does not always mean reading, because “the users” is remote and abstract.
The First Error: “Striking a Balance”
The copyright bargain places the public first: benefit for the reading public is an end in itself; benefits (if any) for publishers are just a means toward that end. Readers’ interests and publishers’ interests are thus qualitatively unequal in priority. The first step in misinterpreting the purpose of copyright is the elevation of the publishers to the same level of importance as the readers.
It is often said that US copyright law is meant to “strike a balance” between the interests of publishers and readers. Those who cite this interpretation present it as a restatement of the basic position stated in the Constitution; in other words, it is supposed to be equivalent to the copyright bargain.
But the two interpretations are far from equivalent; they are different conceptually, and different in their implications. The balance concept assumes that the readers’ and publishers’ interests differ in importance only quantitatively, in how much weight we should give them, and in what actions they apply to. The term “stakeholders” is often used to frame the issue in this way; it assumes that all kinds of interest in a policy decision are equally important. This view rejects the qualitative distinction between the readers’ and publishers’ interests which is at the root of the government’s participation in the copyright bargain.
The consequences of this alteration are far-reaching, because the great protection for the public in the copyright bargain—the idea that copyright privileges can be justified only in the name of the readers, never in the name of the publishers—is discarded by the “balance” interpretation. Since the interest of the publishers is regarded as an end in itself, it can justify copyright privileges; in other words, the “balance” concept says that privileges can be justified in the name of someone other than the public.
As a practical matter, the consequence of the “balance” concept is to reverse the burden of justification for changes in copyright law. The copyright bargain places the burden on the publishers to convince the readers to cede certain freedoms. The concept of balance reverses this burden, practically speaking, because there is generally no doubt that publishers will benefit from additional privilege. Unless harm to the readers can be proved, sufficient to “outweigh” this benefit, we are led to conclude that the publishers are entitled to almost any privilege they request.
Since the idea of “striking a balance” between publishers and readers denies the readers the primacy they are entitled to, we must reject it.
Balancing against What?
When the government buys something for the public, it acts on behalf of the public; its responsibility is to obtain the best possible deal—best for the public, not for the other party in the agreement.
For example, when signing contracts with construction companies to build highways, the government aims to spend as little as possible of the public’s money. Government agencies use competitive bidding to push the price down.
As a practical matter, the price cannot be zero, because contractors will not bid that low. Although not entitled to special consideration, they have the usual rights of citizens in a free society, including the right to refuse disadvantageous contracts; even the lowest bid will be high enough for some contractor to make money. So there is indeed a balance, of a kind. But it is not a deliberate balancing of two interests each with claim to special consideration. It is a balance between a public goal and market forces. The government tries to obtain for the taxpaying motorists the best deal they can get in the context of a free society and a free market.
In the copyright bargain, the government spends our freedom instead of our money. Freedom is more precious than money, so government’s responsibility to spend our freedom wisely and frugally is even greater than its responsibility to spend our money thus. Governments must never put the publishers’ interests on a par with the public’s freedom.
Not “Balance” but “Trade-Off”
The idea of balancing the readers’ interests against the publishers’ is the wrong way to judge copyright policy, but there are indeed two interests to be weighed: two interests of the readers. Readers have an interest in their own freedom in using published works; depending on circumstances, they may also have an interest in encouraging publication through some kind of incentive system.
The word “balance,” in discussions of copyright, has come to stand as shorthand for the idea of “striking a balance” between the readers and the publishers. Therefore, to use the word “balance” in regard to the readers’ two interests would be confusing. We need another term.
In general, when one party has two goals that partly conflict, and cannot completely achieve both of them, we call this a “trade-off.” Therefore, rather than speaking of “striking the right balance” between parties, we should speak of “finding the right trade-off between spending our freedom and keeping it.”
The Second Error: Maximizing One Output
The second mistake in copyright policy consists of adopting the goal of maximizing—not just increasing—the number of published works. The erroneous concept of “striking a balance” elevated the publishers to parity with the readers; this second error places them far above the readers.
When we purchase something, we do not generally buy the whole quantity in stock or the most expensive model. Instead we conserve funds for other purchases, by buying only what we need of any particular good, and choosing a model of sufficient rather than highest quality. The principle of diminishing returns suggests that spending all our money on one particular good is likely to be an inefficient allocation of resources; we generally choose to keep some money for another use.
Diminishing returns applies to copyright just as to any other purchase. The first freedoms we should trade away are those we miss the least, and whose sacrifice gives the largest encouragement to publication. As we trade additional freedoms that cut closer to home, we find that each trade is a bigger sacrifice than the last, while bringing a smaller increment in literary activity. Well before the increment becomes zero, we may well say it is not worth its incremental price; we would then settle on a bargain whose overall result is to increase the amount of publication, but not to the utmost possible extent.
Accepting the goal of maximizing publication rejects all these wiser, more advantageous bargains in advance—it dictates that the public must cede nearly all of its freedom to use published works, for just a little more publication.
The Rhetoric of Maximization
In practice, the goal of maximizing publication regardless of the cost to freedom is supported by widespread rhetoric which asserts that public copying is illegitimate, unfair, and intrinsically wrong. For instance, the publishers call people who copy “pirates,” a smear term designed to equate sharing information with your neighbor with attacking a ship. (This smear term was formerly used by authors to describe publishers who found lawful ways to publish unauthorized editions; its modern use by the publishers is almost the reverse.) This rhetoric directly rejects the constitutional basis for copyright, but presents itself as representing the unquestioned tradition of the American legal system.
The “pirate” rhetoric is typically accepted because it so pervades the media that few people realize how radical it is. It is effective because if copying by the public is fundamentally illegitimate, we can never object to the publishers’ demand that we surrender our freedom to do so. In other words, when the public is challenged to show why publishers should not receive some additional power, the most important reason of all—“We want to copy”—is disqualified in advance.
This leaves no way to argue against increasing copyright power except using side issues. Hence, opposition to stronger copyright powers today almost exclusively cites side issues, and never dares cite the freedom to distribute copies as a legitimate public value.
As a practical matter, the goal of maximization enables publishers to argue that “A certain practice is reducing our sales—or we think it might—so we presume it diminishes publication by some unknown amount, and therefore it should be prohibited.” We are led to the outrageous conclusion that the public good is measured by publishers’ sales: What’s good for General Media is good for the USA.
The Third Error: Maximizing Publishers’ Power
Once the publishers have obtained assent to the policy goal of maximizing publication output at any cost, their next step is to infer that this requires giving them the maximum possible powers—making copyright cover every imaginable use of a work, or applying some other legal tool such as “shrink wrap” licenses to equivalent effect. This goal, which entails the abolition of “fair use” and the “right of first sale,” is being pressed at every available level of government, from states of the US to international bodies.
This step is erroneous because strict copyright rules obstruct the creation of useful new works. For instance, Shakespeare borrowed the plots of some of his plays from works others had published a few decades before, so if today’s copyright law had been in effect, his plays would have been illegal.
Even if we wanted the highest possible rate of publication, regardless of cost to the public, maximizing publishers’ power is the wrong way to get it. As a means of promoting progress, it is self-defeating.
The Results of the Three Errors
The current trend in copyright legislation is to hand publishers broader powers for longer periods of time. The conceptual basis of copyright, as it emerges distorted from the series of errors, rarely offers a basis for saying no. Legislators give lip service to the idea that copyright serves the public, while in fact giving publishers whatever they ask for.
For example, here is what Senator Hatch said when introducing S. 483,[2] a 1995 bill to increase the term of copyright by 20 years:
I believe we are now at such a point with respect to the question of whether the current term of copyright adequately protects the interests of authors and the related question of whether the term of protection continues to provide a sufficient incentive for the creation of new works of authorship.[3]
This bill extended the copyright on already published works written since the 1920s. This change was a giveaway to publishers with no possible benefit to the public, since there is no way to retroactively increase now the number of books published back then. Yet it cost the public a freedom that is meaningful today—the freedom to redistribute books from that era.
The bill also extended the copyrights of works yet to be written. For works made for hire, copyright would last 95 years instead of the present 75 years. Theoretically this would increase the incentive to write new works; but any publisher that claims to need this extra incentive should be required to substantiate the claim with projected balance sheets for 75 years in the future.
Needless to say, Congress did not question the publishers’ arguments: a law extending copyright was enacted in 1998. It was officially called the Sonny Bono Copyright Term Extension Act, named after one of its sponsors who died earlier that year. We usually call it the Mickey Mouse Copyright Act, since we presume its real motive was to prevent the copyright on the appearance of Mickey Mouse from expiring. Bono’s widow, who served the rest of his term, made this statement:
Actually, Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. I invite all of you to work with me to strengthen our copyright laws in all of the ways available to us. As you know, there is also Jack Valenti’s[4] proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress.[5]
The Supreme Court later heard a case that sought to overturn the law on the grounds that the retroactive extension fails to serve the Constitution’s goal of promoting progress. The court responded by abdicating its responsibility to judge the question; on copyright, the Constitution requires only lip service.
Another law, passed in 1997, made it a felony to make sufficiently many copies of any published work, even if you give them away to friends just to be nice. Previously this was not a crime in the US at all.
An even worse law, the Digital Millennium Copyright Act (DMCA), was designed to bring back copy protection (which computer users detest) by making it a crime to break copy protection, or even publish information about how to break it. This law ought to be called the “Domination by Media Corporations Act” because it effectively offers publishers the chance to write their own copyright law. It says they can impose any restrictions whatsoever on the use of a work, and these restrictions take the force of law provided the work contains some sort of encryption or license manager to enforce them.
One of the arguments offered for this bill was that it would implement a recent treaty to increase copyright powers. The treaty was promulgated by the World “Intellectual Property” Organization, an organization dominated by copyright- and patent-holding interests, with the aid of pressure from the Clinton administration; since the treaty only increases copyright power, whether it serves the public interest in any country is doubtful. In any case, the bill went far beyond what the treaty required.
Libraries were a key source of opposition to this bill, especially to the aspects that block the forms of copying that are considered fair use. How did the publishers respond? Former representative Pat Schroeder, now a lobbyist for the Association of American Publishers, said that the publishers “could not live with what [the libraries were] asking for.” Since the libraries were asking only to preserve part of the status quo, one might respond by wondering how the publishers had survived until the present day.
Congressman Barney Frank, in a meeting with me and others who opposed this bill, showed how far the US Constitution’s view of copyright has been disregarded. He said that new powers, backed by criminal penalties, were needed urgently because the “movie industry is worried,” as well as the “music industry” and other “industries.” I asked him, “But is this in the public interest?” His response was telling: “Why are you talking about the public interest? These creative people don’t have to give up their rights for the public interest!” The “industry” has been identified with the “creative people” it hires, copyright has been treated as its entitlement, and the Constitution has been turned upside down.
The DMCA was enacted in 1998. As enacted, it says that fair use remains nominally legitimate, but allows publishers to prohibit all software or hardware that you could practice it with. Effectively, fair use is prohibited.
Based on this law, the movie industry has imposed censorship on free software for reading and playing DVDs, and even on the information about how to read them. In April 2001, Professor Edward Felten of Princeton University was intimidated by lawsuit threats from the Recording Industry Association of America (RIAA) into withdrawing a scientific paper stating what he had learned about a proposed encryption system for restricting access to recorded music.
We are also beginning to see e-books that take away many of readers’ traditional freedoms—for instance, the freedom to lend a book to your friend, to sell it to a used book store, to borrow it from a library, to buy it without giving your name to a corporate data bank, even the freedom to read it twice. Encrypted e-books generally restrict all these activities—you can read them only with special secret software designed to restrict you.
I will never buy one of these encrypted, restricted e-books, and I hope you will reject them too. If an e-book doesn’t give you the same freedoms as a traditional paper book, don’t accept it!
Anyone independently releasing software that can read restricted e-books risks prosecution. A Russian programmer, Dmitry Sklyarov, was arrested in 2001 while visiting the US to speak at a conference, because he had written such a program in Russia, where it was lawful to do so. Now Russia is preparing a law to prohibit it too, and the European Union recently adopted one.
Mass-market e-books have been a commercial failure so far, but not because readers chose to defend their freedom; they were unattractive for other reasons, such as that computer display screens are not easy surfaces to read from. We can’t rely on this happy accident to protect us in the long term; the next attempt to promote e-books will use “electronic paper”—book-like objects into which an encrypted, restricted e-book can be downloaded. If this paper-like surface proves more appealing than today’s display screens, we will have to defend our freedom in order to keep it. Meanwhile, e-books are making inroads in niches: NYU and other dental schools require students to buy their textbooks in the form of restricted e-books.
The media companies are not satisfied yet. In 2001, Disney-funded Senator Hollings proposed a bill called the “Security Systems Standards and Certification Act” (SSSCA),[6] which would require all computers (and other digital recording and playback devices) to have government-mandated copy-restriction systems. That is their ultimate goal, but the first item on their agenda is to prohibit any equipment that can tune digital HDTV unless it is designed to be impossible for the public to “tamper with” (i.e., modify for their own purposes). Since free software is software that users can modify, we face here for the first time a proposed law that explicitly prohibits free software for a certain job. Prohibition of other jobs will surely follow. If the FCC adopts this rule, existing free software such as GNU Radio would be censored.
To block these bills and rules requires political action.[7]
Finding the Right Bargain
What is the proper way to decide copyright policy? If copyright is a bargain made on behalf of the public, it should serve the public interest above all. The government’s duty when selling the public’s freedom is to sell only what it must, and sell it as dearly as possible. At the very least, we should pare back the extent of copyright as much as possible while maintaining a comparable level of publication.
Since we cannot find this minimum price in freedom through competitive bidding, as we do for construction projects, how can we find it?
One possible method is to reduce copyright privileges in stages, and observe the results. By seeing if and when measurable diminutions in publication occur, we will learn how much copyright power is really necessary to achieve the public’s purposes. We must judge this by actual observation, not by what publishers say will happen, because they have every incentive to make exaggerated predictions of doom if their powers are reduced in any way.
Copyright policy includes several independent dimensions, which can be adjusted separately. After we find the necessary minimum for one policy dimension, it may still be possible to reduce other dimensions of copyright while maintaining the desired publication level.
One important dimension of copyright is its duration, which is now typically on the order of a century. Reducing the monopoly on copying to ten years, starting from the date when a work is published, would be a good first step. Another aspect of copyright, which covers the making of derivative works, could continue for a longer period.
Why count from the date of publication? Because copyright on unpublished works does not directly limit readers’ freedom; whether we are free to copy a work is moot when we do not have copies. So giving authors a longer time to get a work published does no harm. Authors (who generally do own the copyright prior to publication) will rarely choose to delay publication just to push back the end of the copyright term.
Why ten years? Because that is a safe proposal; we can be confident on practical grounds that this reduction would have little impact on the overall viability of publishing today. In most media and genres, successful works are very profitable in just a few years, and even successful works are usually out of print well before ten. Even for reference works, whose useful life may be many decades, ten-year copyright should suffice: updated editions are issued regularly, and many readers will buy the copyrighted current edition rather than copy a ten-year-old public domain version.
Ten years may still be longer than necessary; once things settle down, we could try a further reduction to tune the system. At a panel on copyright at a literary convention, where I proposed the ten-year term, a noted fantasy author sitting beside me objected vehemently, saying that anything beyond five years was intolerable.
But we don’t have to apply the same time span to all kinds of works. Maintaining the utmost uniformity of copyright policy is not crucial to the public interest, and copyright law already has many exceptions for specific uses and media. It would be foolish to pay for every highway project at the rates necessary for the most difficult projects in the most expensive regions of the country; it is equally foolish to “pay” for all kinds of art with the greatest price in freedom that we find necessary for any one kind.
So perhaps novels, dictionaries, computer programs, songs, symphonies, and movies should have different durations of copyright, so that we can reduce the duration for each kind of work to what is necessary for many such works to be published. Perhaps movies over one hour long could have a 20-year copyright, because of the expense of producing them. In my own field, computer programming, three years should suffice, because product cycles are even shorter than that.
Another dimension of copyright policy is the extent of fair use: some ways of reproducing all or part of a published work that are legally permitted even though it is copyrighted. The natural first step in reducing this dimension of copyright power is to permit occasional private small-quantity noncommercial copying and distribution among individuals. This would eliminate the intrusion of the copyright police into people’s private lives, but would probably have little effect on the sales of published works. (It may be necessary to take other legal steps to ensure that shrink-wrap licenses cannot be used to substitute for copyright in restricting such copying.) The experience of Napster shows that we should also permit noncommercial verbatim redistribution to the general public—when so many of the public want to copy and share, and find it so useful, only draconian measures will stop them, and the public deserves to get what it wants.
For novels, and in general for works that are used for entertainment, noncommercial verbatim redistribution may be sufficient freedom for the readers. Computer programs, being used for functional purposes (to get jobs done), call for additional freedoms beyond that, including the freedom to publish an improved version. See “The Free Software Definition,” in this book, for an explanation of the freedoms that software users should have. But it may be an acceptable compromise for these freedoms to be universally available only after a delay of two or three years from the program’s publication.
Changes like these could bring copyright into line with the public’s wish to use digital technology to copy. Publishers will no doubt find these proposals “unbalanced”; they may threaten to take their marbles and go home, but they won’t really do it, because the game will remain profitable and it will be the only game in town.
As we consider reductions in copyright power, we must make sure media companies do not simply replace it with end-user license agreements. It would be necessary to prohibit the use of contracts to apply restrictions on copying that go beyond those of copyright. Such limitations on what mass-market nonnegotiated contracts can require are a standard part of the US legal system.
A Personal Note
I am a software designer, not a legal scholar. I’ve become concerned with copyright issues because there’s no avoiding them in the world of computer networks, such as the Internet. As a user of computers and networks for 30 years, I value the freedoms that we have lost, and the ones we may lose next. As an author, I can reject the romantic mystique of the author as semidivine creator, often cited by publishers to justify increased copyright powers for authors—powers which these authors will then sign away to publishers.
Most of this article consists of facts and reasoning that you can check, and proposals on which you can form your own opinions. But I ask you to accept one thing on my word alone: that authors like me don’t deserve special power over you. If you wish to reward me further for the software or books I have written, I would gratefully accept a check—but please don’t surrender your freedom in my name.
Copyright © 2002, 2003, 2007, 2009, 2010 Free Software Foundation, Inc.Copyright c 1996, 2002, 2007, 2009, 2010 Richard Stallman
This essay was first published on http://gnu.org, in 2002. This version is part of Free Software, Free Society: Selected Essays of Richard M. Stallman, 2nd ed. (Boston: GNU Press, 2010).
Verbatim copying and distribution of this entire chapter are permitted worldwide, without royalty, in any medium, provided this notice is preserved.
Something strange and dangerous is happening in copyright law. Under the US Constitution, copyright exists to benefit users—those who read books, listen to music, watch movies, or run software—not for the sake of publishers or authors. Yet even as people tend increasingly to reject and disobey the copyright restrictions imposed on them “for their own benefit,” the US government is adding more restrictions, and trying to frighten the public into obedience with harsh new penalties.
How did copyright policies come to be diametrically opposed to their stated purpose? And how can we bring them back into alignment with that purpose? To understand, we should start by looking at the root of United States copyright law: the US Constitution.
Copyright in the US Constitution
When the US Constitution was drafted, the idea that authors were entitled to a copyright monopoly was proposed—and rejected. The founders of our country adopted a different premise, that copyright is not a natural right of authors, but an artificial concession made to them for the sake of progress. The Constitution gives permission for a copyright system with this clause (Article I, Section 8, Clause 8):
[Congress shall have the power] to promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.
The Supreme Court has repeatedly affirmed that promoting progress means benefit for the users of copyrighted works. For example, in Fox Film v. Doyal,[1] the court said,
The sole interest of the United States and the primary object in conferring the [copyright] monopoly lie in the general benefits derived by the public from the labors of authors.
This fundamental decision explains why copyright is not required by the Constitution, only permitted as an option—and why it is supposed to last for “limited times.” If copyright were a natural right, something that authors have because they deserve it, nothing could justify terminating this right after a certain period of time, any more than everyone’s house should become public property after a certain lapse of time from its construction.
The “Copyright Bargain”
The copyright system works by providing privileges and thus benefits to publishers and authors; but it does not do this for their sake. Rather, it does this to modify their behavior: to provide an incentive for authors to write more and publish more. In effect, the government spends the public’s natural rights, on the public’s behalf, as part of a deal to bring the public more published works. Legal scholars call this concept the “copyright bargain.” It is like a government purchase of a highway or an airplane using taxpayers’ money, except that the government spends our freedom instead of our money.
But is the bargain as it exists actually a good deal for the public? Many alternative bargains are possible; which one is best? Every issue of copyright policy is part of this question. If we misunderstand the nature of the question, we will tend to decide the issues badly.
The Constitution authorizes granting copyright powers to authors. In practice, authors typically cede them to publishers; it is usually the publishers, not the authors, who exercise these powers and get most of the benefits, though authors may get a small portion. Thus it is usually the publishers that lobby to increase copyright powers. To better reflect the reality of copyright rather than the myth, this article refers to publishers rather than authors as the holders of copyright powers. It also refers to the users of copyrighted works as “readers,” even though using them does not always mean reading, because “the users” is remote and abstract.
The First Error: “Striking a Balance”
The copyright bargain places the public first: benefit for the reading public is an end in itself; benefits (if any) for publishers are just a means toward that end. Readers’ interests and publishers’ interests are thus qualitatively unequal in priority. The first step in misinterpreting the purpose of copyright is the elevation of the publishers to the same level of importance as the readers.
It is often said that US copyright law is meant to “strike a balance” between the interests of publishers and readers. Those who cite this interpretation present it as a restatement of the basic position stated in the Constitution; in other words, it is supposed to be equivalent to the copyright bargain.
But the two interpretations are far from equivalent; they are different conceptually, and different in their implications. The balance concept assumes that the readers’ and publishers’ interests differ in importance only quantitatively, in how much weight we should give them, and in what actions they apply to. The term “stakeholders” is often used to frame the issue in this way; it assumes that all kinds of interest in a policy decision are equally important. This view rejects the qualitative distinction between the readers’ and publishers’ interests which is at the root of the government’s participation in the copyright bargain.
The consequences of this alteration are far-reaching, because the great protection for the public in the copyright bargain—the idea that copyright privileges can be justified only in the name of the readers, never in the name of the publishers—is discarded by the “balance” interpretation. Since the interest of the publishers is regarded as an end in itself, it can justify copyright privileges; in other words, the “balance” concept says that privileges can be justified in the name of someone other than the public.
As a practical matter, the consequence of the “balance” concept is to reverse the burden of justification for changes in copyright law. The copyright bargain places the burden on the publishers to convince the readers to cede certain freedoms. The concept of balance reverses this burden, practically speaking, because there is generally no doubt that publishers will benefit from additional privilege. Unless harm to the readers can be proved, sufficient to “outweigh” this benefit, we are led to conclude that the publishers are entitled to almost any privilege they request.
Since the idea of “striking a balance” between publishers and readers denies the readers the primacy they are entitled to, we must reject it.
Balancing against What?
When the government buys something for the public, it acts on behalf of the public; its responsibility is to obtain the best possible deal—best for the public, not for the other party in the agreement.
For example, when signing contracts with construction companies to build highways, the government aims to spend as little as possible of the public’s money. Government agencies use competitive bidding to push the price down.
As a practical matter, the price cannot be zero, because contractors will not bid that low. Although not entitled to special consideration, they have the usual rights of citizens in a free society, including the right to refuse disadvantageous contracts; even the lowest bid will be high enough for some contractor to make money. So there is indeed a balance, of a kind. But it is not a deliberate balancing of two interests each with claim to special consideration. It is a balance between a public goal and market forces. The government tries to obtain for the taxpaying motorists the best deal they can get in the context of a free society and a free market.
In the copyright bargain, the government spends our freedom instead of our money. Freedom is more precious than money, so government’s responsibility to spend our freedom wisely and frugally is even greater than its responsibility to spend our money thus. Governments must never put the publishers’ interests on a par with the public’s freedom.
Not “Balance” but “Trade-Off”
The idea of balancing the readers’ interests against the publishers’ is the wrong way to judge copyright policy, but there are indeed two interests to be weighed: two interests of the readers. Readers have an interest in their own freedom in using published works; depending on circumstances, they may also have an interest in encouraging publication through some kind of incentive system.
The word “balance,” in discussions of copyright, has come to stand as shorthand for the idea of “striking a balance” between the readers and the publishers. Therefore, to use the word “balance” in regard to the readers’ two interests would be confusing. We need another term.
In general, when one party has two goals that partly conflict, and cannot completely achieve both of them, we call this a “trade-off.” Therefore, rather than speaking of “striking the right balance” between parties, we should speak of “finding the right trade-off between spending our freedom and keeping it.”
The Second Error: Maximizing One Output
The second mistake in copyright policy consists of adopting the goal of maximizing—not just increasing—the number of published works. The erroneous concept of “striking a balance” elevated the publishers to parity with the readers; this second error places them far above the readers.
When we purchase something, we do not generally buy the whole quantity in stock or the most expensive model. Instead we conserve funds for other purchases, by buying only what we need of any particular good, and choosing a model of sufficient rather than highest quality. The principle of diminishing returns suggests that spending all our money on one particular good is likely to be an inefficient allocation of resources; we generally choose to keep some money for another use.
Diminishing returns applies to copyright just as to any other purchase. The first freedoms we should trade away are those we miss the least, and whose sacrifice gives the largest encouragement to publication. As we trade additional freedoms that cut closer to home, we find that each trade is a bigger sacrifice than the last, while bringing a smaller increment in literary activity. Well before the increment becomes zero, we may well say it is not worth its incremental price; we would then settle on a bargain whose overall result is to increase the amount of publication, but not to the utmost possible extent.
Accepting the goal of maximizing publication rejects all these wiser, more advantageous bargains in advance—it dictates that the public must cede nearly all of its freedom to use published works, for just a little more publication.
The Rhetoric of Maximization
In practice, the goal of maximizing publication regardless of the cost to freedom is supported by widespread rhetoric which asserts that public copying is illegitimate, unfair, and intrinsically wrong. For instance, the publishers call people who copy “pirates,” a smear term designed to equate sharing information with your neighbor with attacking a ship. (This smear term was formerly used by authors to describe publishers who found lawful ways to publish unauthorized editions; its modern use by the publishers is almost the reverse.) This rhetoric directly rejects the constitutional basis for copyright, but presents itself as representing the unquestioned tradition of the American legal system.
The “pirate” rhetoric is typically accepted because it so pervades the media that few people realize how radical it is. It is effective because if copying by the public is fundamentally illegitimate, we can never object to the publishers’ demand that we surrender our freedom to do so. In other words, when the public is challenged to show why publishers should not receive some additional power, the most important reason of all—“We want to copy”—is disqualified in advance.
This leaves no way to argue against increasing copyright power except using side issues. Hence, opposition to stronger copyright powers today almost exclusively cites side issues, and never dares cite the freedom to distribute copies as a legitimate public value.
As a practical matter, the goal of maximization enables publishers to argue that “A certain practice is reducing our sales—or we think it might—so we presume it diminishes publication by some unknown amount, and therefore it should be prohibited.” We are led to the outrageous conclusion that the public good is measured by publishers’ sales: What’s good for General Media is good for the USA.
The Third Error: Maximizing Publishers’ Power
Once the publishers have obtained assent to the policy goal of maximizing publication output at any cost, their next step is to infer that this requires giving them the maximum possible powers—making copyright cover every imaginable use of a work, or applying some other legal tool such as “shrink wrap” licenses to equivalent effect. This goal, which entails the abolition of “fair use” and the “right of first sale,” is being pressed at every available level of government, from states of the US to international bodies.
This step is erroneous because strict copyright rules obstruct the creation of useful new works. For instance, Shakespeare borrowed the plots of some of his plays from works others had published a few decades before, so if today’s copyright law had been in effect, his plays would have been illegal.
Even if we wanted the highest possible rate of publication, regardless of cost to the public, maximizing publishers’ power is the wrong way to get it. As a means of promoting progress, it is self-defeating.
The Results of the Three Errors
The current trend in copyright legislation is to hand publishers broader powers for longer periods of time. The conceptual basis of copyright, as it emerges distorted from the series of errors, rarely offers a basis for saying no. Legislators give lip service to the idea that copyright serves the public, while in fact giving publishers whatever they ask for.
For example, here is what Senator Hatch said when introducing S. 483,[2] a 1995 bill to increase the term of copyright by 20 years:
I believe we are now at such a point with respect to the question of whether the current term of copyright adequately protects the interests of authors and the related question of whether the term of protection continues to provide a sufficient incentive for the creation of new works of authorship.[3]
This bill extended the copyright on already published works written since the 1920s. This change was a giveaway to publishers with no possible benefit to the public, since there is no way to retroactively increase now the number of books published back then. Yet it cost the public a freedom that is meaningful today—the freedom to redistribute books from that era.
The bill also extended the copyrights of works yet to be written. For works made for hire, copyright would last 95 years instead of the present 75 years. Theoretically this would increase the incentive to write new works; but any publisher that claims to need this extra incentive should be required to substantiate the claim with projected balance sheets for 75 years in the future.
Needless to say, Congress did not question the publishers’ arguments: a law extending copyright was enacted in 1998. It was officially called the Sonny Bono Copyright Term Extension Act, named after one of its sponsors who died earlier that year. We usually call it the Mickey Mouse Copyright Act, since we presume its real motive was to prevent the copyright on the appearance of Mickey Mouse from expiring. Bono’s widow, who served the rest of his term, made this statement:
Actually, Sonny wanted the term of copyright protection to last forever. I am informed by staff that such a change would violate the Constitution. I invite all of you to work with me to strengthen our copyright laws in all of the ways available to us. As you know, there is also Jack Valenti’s[4] proposal for term to last forever less one day. Perhaps the Committee may look at that next Congress.[5]
The Supreme Court later heard a case that sought to overturn the law on the grounds that the retroactive extension fails to serve the Constitution’s goal of promoting progress. The court responded by abdicating its responsibility to judge the question; on copyright, the Constitution requires only lip service.
Another law, passed in 1997, made it a felony to make sufficiently many copies of any published work, even if you give them away to friends just to be nice. Previously this was not a crime in the US at all.
An even worse law, the Digital Millennium Copyright Act (DMCA), was designed to bring back copy protection (which computer users detest) by making it a crime to break copy protection, or even publish information about how to break it. This law ought to be called the “Domination by Media Corporations Act” because it effectively offers publishers the chance to write their own copyright law. It says they can impose any restrictions whatsoever on the use of a work, and these restrictions take the force of law provided the work contains some sort of encryption or license manager to enforce them.
One of the arguments offered for this bill was that it would implement a recent treaty to increase copyright powers. The treaty was promulgated by the World “Intellectual Property” Organization, an organization dominated by copyright- and patent-holding interests, with the aid of pressure from the Clinton administration; since the treaty only increases copyright power, whether it serves the public interest in any country is doubtful. In any case, the bill went far beyond what the treaty required.
Libraries were a key source of opposition to this bill, especially to the aspects that block the forms of copying that are considered fair use. How did the publishers respond? Former representative Pat Schroeder, now a lobbyist for the Association of American Publishers, said that the publishers “could not live with what [the libraries were] asking for.” Since the libraries were asking only to preserve part of the status quo, one might respond by wondering how the publishers had survived until the present day.
Congressman Barney Frank, in a meeting with me and others who opposed this bill, showed how far the US Constitution’s view of copyright has been disregarded. He said that new powers, backed by criminal penalties, were needed urgently because the “movie industry is worried,” as well as the “music industry” and other “industries.” I asked him, “But is this in the public interest?” His response was telling: “Why are you talking about the public interest? These creative people don’t have to give up their rights for the public interest!” The “industry” has been identified with the “creative people” it hires, copyright has been treated as its entitlement, and the Constitution has been turned upside down.
The DMCA was enacted in 1998. As enacted, it says that fair use remains nominally legitimate, but allows publishers to prohibit all software or hardware that you could practice it with. Effectively, fair use is prohibited.
Based on this law, the movie industry has imposed censorship on free software for reading and playing DVDs, and even on the information about how to read them. In April 2001, Professor Edward Felten of Princeton University was intimidated by lawsuit threats from the Recording Industry Association of America (RIAA) into withdrawing a scientific paper stating what he had learned about a proposed encryption system for restricting access to recorded music.
We are also beginning to see e-books that take away many of readers’ traditional freedoms—for instance, the freedom to lend a book to your friend, to sell it to a used book store, to borrow it from a library, to buy it without giving your name to a corporate data bank, even the freedom to read it twice. Encrypted e-books generally restrict all these activities—you can read them only with special secret software designed to restrict you.
I will never buy one of these encrypted, restricted e-books, and I hope you will reject them too. If an e-book doesn’t give you the same freedoms as a traditional paper book, don’t accept it!
Anyone independently releasing software that can read restricted e-books risks prosecution. A Russian programmer, Dmitry Sklyarov, was arrested in 2001 while visiting the US to speak at a conference, because he had written such a program in Russia, where it was lawful to do so. Now Russia is preparing a law to prohibit it too, and the European Union recently adopted one.
Mass-market e-books have been a commercial failure so far, but not because readers chose to defend their freedom; they were unattractive for other reasons, such as that computer display screens are not easy surfaces to read from. We can’t rely on this happy accident to protect us in the long term; the next attempt to promote e-books will use “electronic paper”—book-like objects into which an encrypted, restricted e-book can be downloaded. If this paper-like surface proves more appealing than today’s display screens, we will have to defend our freedom in order to keep it. Meanwhile, e-books are making inroads in niches: NYU and other dental schools require students to buy their textbooks in the form of restricted e-books.
The media companies are not satisfied yet. In 2001, Disney-funded Senator Hollings proposed a bill called the “Security Systems Standards and Certification Act” (SSSCA),[6] which would require all computers (and other digital recording and playback devices) to have government-mandated copy-restriction systems. That is their ultimate goal, but the first item on their agenda is to prohibit any equipment that can tune digital HDTV unless it is designed to be impossible for the public to “tamper with” (i.e., modify for their own purposes). Since free software is software that users can modify, we face here for the first time a proposed law that explicitly prohibits free software for a certain job. Prohibition of other jobs will surely follow. If the FCC adopts this rule, existing free software such as GNU Radio would be censored.
To block these bills and rules requires political action.[7]
Finding the Right Bargain
What is the proper way to decide copyright policy? If copyright is a bargain made on behalf of the public, it should serve the public interest above all. The government’s duty when selling the public’s freedom is to sell only what it must, and sell it as dearly as possible. At the very least, we should pare back the extent of copyright as much as possible while maintaining a comparable level of publication.
Since we cannot find this minimum price in freedom through competitive bidding, as we do for construction projects, how can we find it?
One possible method is to reduce copyright privileges in stages, and observe the results. By seeing if and when measurable diminutions in publication occur, we will learn how much copyright power is really necessary to achieve the public’s purposes. We must judge this by actual observation, not by what publishers say will happen, because they have every incentive to make exaggerated predictions of doom if their powers are reduced in any way.
Copyright policy includes several independent dimensions, which can be adjusted separately. After we find the necessary minimum for one policy dimension, it may still be possible to reduce other dimensions of copyright while maintaining the desired publication level.
One important dimension of copyright is its duration, which is now typically on the order of a century. Reducing the monopoly on copying to ten years, starting from the date when a work is published, would be a good first step. Another aspect of copyright, which covers the making of derivative works, could continue for a longer period.
Why count from the date of publication? Because copyright on unpublished works does not directly limit readers’ freedom; whether we are free to copy a work is moot when we do not have copies. So giving authors a longer time to get a work published does no harm. Authors (who generally do own the copyright prior to publication) will rarely choose to delay publication just to push back the end of the copyright term.
Why ten years? Because that is a safe proposal; we can be confident on practical grounds that this reduction would have little impact on the overall viability of publishing today. In most media and genres, successful works are very profitable in just a few years, and even successful works are usually out of print well before ten. Even for reference works, whose useful life may be many decades, ten-year copyright should suffice: updated editions are issued regularly, and many readers will buy the copyrighted current edition rather than copy a ten-year-old public domain version.
Ten years may still be longer than necessary; once things settle down, we could try a further reduction to tune the system. At a panel on copyright at a literary convention, where I proposed the ten-year term, a noted fantasy author sitting beside me objected vehemently, saying that anything beyond five years was intolerable.
But we don’t have to apply the same time span to all kinds of works. Maintaining the utmost uniformity of copyright policy is not crucial to the public interest, and copyright law already has many exceptions for specific uses and media. It would be foolish to pay for every highway project at the rates necessary for the most difficult projects in the most expensive regions of the country; it is equally foolish to “pay” for all kinds of art with the greatest price in freedom that we find necessary for any one kind.
So perhaps novels, dictionaries, computer programs, songs, symphonies, and movies should have different durations of copyright, so that we can reduce the duration for each kind of work to what is necessary for many such works to be published. Perhaps movies over one hour long could have a 20-year copyright, because of the expense of producing them. In my own field, computer programming, three years should suffice, because product cycles are even shorter than that.
Another dimension of copyright policy is the extent of fair use: some ways of reproducing all or part of a published work that are legally permitted even though it is copyrighted. The natural first step in reducing this dimension of copyright power is to permit occasional private small-quantity noncommercial copying and distribution among individuals. This would eliminate the intrusion of the copyright police into people’s private lives, but would probably have little effect on the sales of published works. (It may be necessary to take other legal steps to ensure that shrink-wrap licenses cannot be used to substitute for copyright in restricting such copying.) The experience of Napster shows that we should also permit noncommercial verbatim redistribution to the general public—when so many of the public want to copy and share, and find it so useful, only draconian measures will stop them, and the public deserves to get what it wants.
For novels, and in general for works that are used for entertainment, noncommercial verbatim redistribution may be sufficient freedom for the readers. Computer programs, being used for functional purposes (to get jobs done), call for additional freedoms beyond that, including the freedom to publish an improved version. See “The Free Software Definition,” in this book, for an explanation of the freedoms that software users should have. But it may be an acceptable compromise for these freedoms to be universally available only after a delay of two or three years from the program’s publication.
Changes like these could bring copyright into line with the public’s wish to use digital technology to copy. Publishers will no doubt find these proposals “unbalanced”; they may threaten to take their marbles and go home, but they won’t really do it, because the game will remain profitable and it will be the only game in town.
As we consider reductions in copyright power, we must make sure media companies do not simply replace it with end-user license agreements. It would be necessary to prohibit the use of contracts to apply restrictions on copying that go beyond those of copyright. Such limitations on what mass-market nonnegotiated contracts can require are a standard part of the US legal system.
A Personal Note
I am a software designer, not a legal scholar. I’ve become concerned with copyright issues because there’s no avoiding them in the world of computer networks, such as the Internet. As a user of computers and networks for 30 years, I value the freedoms that we have lost, and the ones we may lose next. As an author, I can reject the romantic mystique of the author as semidivine creator, often cited by publishers to justify increased copyright powers for authors—powers which these authors will then sign away to publishers.
Most of this article consists of facts and reasoning that you can check, and proposals on which you can form your own opinions. But I ask you to accept one thing on my word alone: that authors like me don’t deserve special power over you. If you wish to reward me further for the software or books I have written, I would gratefully accept a check—but please don’t surrender your freedom in my name.
Copyright © 2002, 2003, 2007, 2009, 2010 Free Software Foundation, Inc.Copyright c 1996, 2002, 2007, 2009, 2010 Richard Stallman
This essay was first published on http://gnu.org, in 2002. This version is part of Free Software, Free Society: Selected Essays of Richard M. Stallman, 2nd ed. (Boston: GNU Press, 2010).
Verbatim copying and distribution of this entire chapter are permitted worldwide, without royalty, in any medium, provided this notice is preserved.
Chapter 19. Science Must Push Copyright Aside
It should be a truism that the scientific literature exists to disseminate scientific knowledge, and that scientific journals exist to facilitate the process. It therefore follows that rules for use of the scientific literature should be designed to help achieve that goal.
The rules we have now, known as copyright, were established in the age of the printing press, an inherently centralized method of mass-production copying. In a print environment, copyright on journal articles restricted only journal publishers—requiring them to obtain permission to publish an article—and would-be plagiarists. It helped journals to operate and disseminate knowledge, without interfering with the useful work of scientists or students, either as writers or readers of articles. These rules fit that system well.
The modern technology for scientific publishing, however, is the World Wide Web. What rules would best ensure the maximum dissemination of scientific articles, and knowledge, on the web? Articles should be distributed in nonproprietary formats, with open access for all. And everyone should have the right to “mirror” articles—that is, to republish them verbatim with proper attribution.
These rules should apply to past as well as future articles, when they are distributed in electronic form. But there is no crucial need to change the present copyright system as it applies to paper publication of journals because the problem is not in that domain.
Unfortunately, it seems that not everyone agrees with the truisms that began this article. Many journal publishers appear to believe that the purpose of scientific literature is to enable them to publish journals so as to collect subscriptions from scientists and students. Such thinking is known as “confusion of the means with the ends.”
Their approach has been to restrict access even to read the scientific literature to those who can and will pay for it. They use copyright law, which is still in force despite its inappropriateness for computer networks, as an excuse to stop scientists from choosing new rules.
For the sake of scientific cooperation and humanity’s future, we must reject that approach at its root—not merely the obstructive systems that have been instituted, but the mistaken priorities that inspired them.
Journal publishers sometimes claim that online access requires expensive high-powered server machines, and that they must charge access fees to pay for these servers. This “problem” is a consequence of its own “solution.” Give everyone the freedom to mirror, and libraries around the world will set up mirror sites to meet the demand. This decentralized solution will reduce network bandwidth needs and provide faster access, all the while protecting the scholarly record against accidental loss.
Publishers also argue that paying the editors requires charging for access. Let us accept the assumption that editors must be paid; this tail need not wag the dog. The cost of editing for a typical paper is between 1 percent and 3 percent of the cost of funding the research to produce it. Such a small percentage of the cost can hardly justify obstructing the use of the results.
Instead, the cost of editing could be recovered, for example, through page charges to the authors, who can pass these on to the research sponsors. The sponsors should not mind, given that they currently pay for publication in a more cumbersome way, through overhead fees for the university library’s subscription to the journal. By changing the economic model to charge editing costs to the research sponsors, we can eliminate the apparent need to restrict access. The occasional author who is not affiliated with an institution or company, and who has no research sponsor, could be exempted from page charges, with costs levied on institution-based authors.
Another justification for access fees to online publications is to fund conversion of the print archives of a journal into online form. That work needs to be done, but we should seek alternative ways of funding it that do not involve obstructing access to the result. The work itself will not be any more difficult, or cost any more. It is self-defeating to digitize the archives and waste the results by restricting access.
The US Constitution says that copyright exists “to promote the Progress of Science.” When copyright impedes the progress of science, science must push copyright out of the way.
Copyright © 2001 Richard Stallman
This essay was first published in Nature magazine’s Web Debates forum, on 8 June 2001. This version is part of Free Software, Free Society: Selected Essays of Richard M. Stallman, 2nd ed. (Boston: GNU Press, 2010).
Verbatim copying and distribution of this entire chapter are permitted worldwide, without royalty, in any medium, provided this notice is preserved.
Chapter 20.
Freedom—or Copyright
This essay addresses how the principles of software freedom apply in some cases to other works of authorship and art. It’s included here since it involves the application of the ideas of free software.
This essay addresses how the principles of software freedom apply in some cases to other works of authorship and art. It’s included here since it involves the application of the ideas of free software.
Copyright was established in the age of the printing press as an industrial regulation on the business of writing and publishing. The aim was to encourage the publication of a diversity of written works. The means was to require publishers to get the author’s permission to publish recent writings. This enabled authors to get income from publishers, which facilitated and encouraged writing. The general reading public received the benefit of this, while losing little: copyright restricted only publication, not the things an ordinary reader could do. That made copyright arguably a beneficial system for the public, and therefore arguably legitimate.
Well and good—back then.
Now we have a new way of distributing information: computers and networks. Their benefit is that they facilitate copying and manipulating information, including software, musical recordings, books, and movies. They offer the possibility of unlimited access to all sorts of data—an information utopia.
One obstacle stood in the way: copyright. Readers and listeners who made use of their new ability to copy and share published information were technically copyright infringers. The same law which had formerly acted as a beneficial industrial regulation on publishers had become a restriction on the public it was meant to serve.
In a democracy, a law that prohibits a popular and useful activity is usually soon relaxed. Not so where corporations have political power. The publishers’ lobby was determined to prevent the public from taking advantage of the power of their computers, and found copyright a handy weapon. Under their influence, rather than relaxing copyright rules to suit the new circumstances, governments made them stricter than ever, imposing harsh penalties on the practice of sharing. The latest fashion in supporting the publishers against the citizens, known as “three strikes,” is to cut off people’s Internet connections if they share.
But that wasn’t the worst of it. Computers can be powerful tools of domination when software suppliers deny users the control of the software they run. The publishers realized that by publishing works in encrypted format, which only specially authorized software could view, they could gain unprecedented power: they could compel readers to pay, and identify themselves, every time they read a book, listen to a song, or watch a video. That is the publishers’ dream: a pay-per-view universe.
The publishers gained US government support for their dream with the Digital Millennium Copyright Act of 1998. This law gave publishers power to write their own copyright rules, by implementing them in the code of the authorized player software. Under this practice, called Digital Restrictions Management, or DRM, even reading or listening without authorization is forbidden.
We still have the same old freedoms in using paper books and other analog media. But if e-books replace printed books, those freedoms will not transfer. Imagine: no more used book stores; no more lending a book to your friend; no more borrowing one from the public library—no more “leaks” that might give someone a chance to read without paying. No more purchasing a book anonymously with cash—you can only buy an e-book with a credit card. That is the world the publishers want to impose on us. If you buy the Amazon Kindle (we call it the Swindle) or the Sony Reader (we call it the Shreader for what it threatens to do to books), you pay to establish that world.
The Swindle even has an Orwellian back door that can be used to erase books remotely. Amazon demonstrated this capability by erasing copies, purchased from Amazon, of Orwell’s book 1984. Evidently Amazon’s name for this product reflects the intention to burn our books.
Public anger against DRM is slowly growing, held back because propaganda expressions such as “protect authors” and “intellectual property” have convinced readers that their rights do not count. These terms implicitly assume that publishers deserve special power in the name of the authors, that we are morally obliged to bow to them, and that we have wronged someone if we see or hear anything without paying for permission.
The organizations that profit most from copyright legally exercise it in the name of the authors (most of whom gain little). They would have you believe that copyright is a natural right of authors, and that we the public must suffer it no matter how painful it is. They call sharing “piracy,” equating helping your neighbor with attacking a ship.
They also tell us that a War on Sharing is the only way to keep art alive. Even if true, it would not justify the policy; but it isn’t true. Public sharing of copies is likely to increase the sales of most works, and decrease sales only for big hits.
Bestsellers can still do well without forbidding sharing. Stephen King got hundreds of thousands of dollars selling an unencrypted e-book serial with no obstacle to copying and sharing. (He was dissatisfied with that amount and called the experiment a failure, but it looks like a success to me.) Radiohead made millions in 2007 by inviting fans to copy an album and pay what they wished, while it was also shared through peer-to-peer. In 2008, Nine Inch Nails released an album with permission to share copies and made $750,000 in a few days.[1]
The possibility of success without oppression is not limited to bestsellers. Many artists of various levels of fame now make an adequate living through voluntary support:[2] donations and merchandise purchases of their fans. Kevin Kelly[3] estimates the artist need only find around 1,000 true fans.[4]
When computer networks provide an easy anonymous method for sending someone a small amount of money, without a credit card, it will be easy to set up a much better system to support the arts. When you view a work, there will be a button you can press saying, “Click here to send the artist one dollar.” Wouldn’t you press it, at least once a week?
Another good way to support music and the arts is with tax funds—perhaps a tax on blank media or on Internet connectivity. The state should distribute the tax money entirely to the artists, not waste it on corporate executives. But the state should not distribute it in linear proportion to popularity, because that would give most of it to a few superstars, leaving little to support all the other artists. I therefore recommend using a cube-root function or something similar. With linear proportion, superstar A with 1,000 times the popularity of a successful artist B will get 1,000 times as much money as B. With the cube root, A will get 10 times as much as B. Thus, each superstar gets a larger share than a less popular artist, but most of the funds go to the artists who really need this support. This system will use our tax money efficiently to support the arts.
The Global Patronage[5] proposal combines aspects of those two systems, incorporating mandatory payments with voluntary allocation among artists.
In Spain, this tax system should replace the SGAE[6] and its canon, which could be eliminated.
To make copyright fit the network age, we should legalize the noncommercial copying and sharing of all published works, and prohibit DRM. But until we win this battle, you must protect yourself: don’t buy any products with DRM unless you personally have the means to break the DRM. Never use a product designed to attack your freedom unless you can nullify the attack.
Copyright © 2008, 2010 Richard Stallman
This essay was first published on http://gnu.org, in 2008. This version is part of Free Software, Free Society: Selected Essays of Richard M. Stallman, 2nd ed. (Boston: GNU Press, 2010).
Verbatim copying and distribution of this entire chapter are permitted worldwide, without royalty, in any medium, provided this notice is preserved.
Chapter 21. What Is Copyleft?
Copyleft is a general method for making a program (or other work) free, and requiring all modified and extended versions of the program to be free as well.
The simplest way to make a program free software is to put it in the public domain, uncopyrighted. This allows people to share the program and their improvements, if they are so minded. But it also allows uncooperative people to convert the program into proprietary software. They can make changes, many or few, and distribute the result as a proprietary product. People who receive the program in that modified form do not have the freedom that the original author gave them; the middleman has stripped it away.
In the GNU Project, our aim is to give all users the freedom to redistribute and change GNU software. If middlemen could strip off the freedom, we might have many users, but those users would not have freedom. So instead of putting GNU software in the public domain, we “copyleft” it. Copyleft says that anyone who redistributes the software, with or without changes, must pass along the freedom to further copy and change it. Copyleft guarantees that every user has freedom.
Copyleft also provides an incentive for other programmers to add to free software. Important free programs such as the GNU C++ compiler exist only because of this.
Copyleft also helps programmers who want to contribute improvements to free software get permission to do so. These programmers often work for companies or universities that would do almost anything to get more money. A programmer may want to contribute her changes to the community, but her employer may want to turn the changes into a proprietary software product.
When we explain to the employer that it is illegal to distribute the improved version except as free software, the employer usually decides to release it as free software rather than throw it away.
To copyleft a program, we first state that it is copyrighted; then we add distribution terms, which are a legal instrument that gives everyone the rights to use, modify, and redistribute the program’s code, or any program derived from it, but only if the distribution terms are unchanged. Thus, the code and the freedoms become legally inseparable.
Proprietary software developers use copyright to take away the users’ freedom; we use copyright to guarantee their freedom. That’s why we reverse the name, changing “copyright” into “copyleft.”
Copyleft is a way of using of the copyright on the program. It doesn’t mean abandoning the copyright; in fact, doing so would make copyleft impossible. The “left” in “copyleft” is not a reference to the verb “to leave”—only to the direction which is the inverse of “right.”
Copyleft is a general concept, and you can’t use a general concept directly; you can only use a specific implementation of the concept. In the GNU Project, the specific distribution terms that we use for most software are contained in the GNU General Public License. The GNU General Public License is often called the GNU GPL for short. There is also a Frequently Asked Questions page about the GNU GPL, at http://gnu.org/licenses/gpl-faq.html. You can also read about why the FSF gets copyright assignments from contributors, at http://gnu.org/copyleft/why-assign.html.
An alternate form of copyleft, the GNU Lesser General Public License (LGPL), applies to a few (but not all) GNU libraries. To learn more about properly using the LGPL, please read the article “Why You Shouldn’t Use the Lesser GPL for Your Next Library,” available at http://gnu.org/philosophy/why-not-lgpl.html.
The GNU Free Documentation License (FDL) is a form of copyleft intended for use on a manual, textbook or other document to assure everyone the effective freedom to copy and redistribute it, with or without modifications, either commercially or noncommercially.
The appropriate license is included in many manuals and in each GNU source code distribution.
All these licenses are designed so that you can easily apply them to your own works, assuming you are the copyright holder. You don’t have to modify the license to do this, just include a copy of the license in the work, and add notices in the source files that refer properly to the license.
Using the same distribution terms for many different programs makes it easy to copy code between various different programs. When they all have the same distribution terms, there is no problem. The Lesser GPL, version 2, includes a provision that lets you alter the distribution terms to the ordinary GPL, so that you can copy code into another program covered by the GPL. Version 3 of the Lesser GPL is built as an exception added to GPL version 3, making the compatibility automatic.
If you would like to copyleft your program with the GNU GPL or the GNU LGPL, please see the license instructions page, at http://gnu.org/copyleft/gpl-howto.html, for advice. Please note that you must use the entire text of the license you choose. Each is an integral whole, and partial copies are not permitted.
If you would like to copyleft your manual with the GNU FDL, please see the instructions at the end of the FDL text, and the GFDL instructions page, at http://gnu.org/copyleft/fdl-howto.html. Again, partial copies are not permitted.
Copyright © 1996, 1997, 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009 Free Software Foundation, Inc.
This essay was first published on http://gnu.org, in 1996. This version is part of Free Software, Free Society: Selected Essays of Richard M. Stallman, 2nd ed. (Boston: GNU Press, 2010).
Verbatim copying and distribution of this entire chapter are permitted worldwide, without royalty, in any medium, provided this notice is preserved.
Chapter 22. Copyleft: Pragmatic Idealism
Every decision a person makes stems from the person’s values and goals. People can have many different goals and values; fame, profit, love, survival, fun, and freedom, are just some of the goals that a good person might have. When the goal is a matter of principle, we call that idealism.
My work on free software is motivated by an idealistic goal: spreading freedom and cooperation. I want to encourage free software to spread, replacing proprietary software that forbids cooperation, and thus make our society better.
That’s the basic reason why the GNU General Public License is written the way it is—as a copyleft. All code added to a GPL-covered program must be free software, even if it is put in a separate file. I make my code available for use in free software, and not for use in proprietary software, in order to encourage other people who write software to make it free as well. I figure that since proprietary software developers use copyright to stop us from sharing, we cooperators can use copyright to give other cooperators an advantage of their own: they can use our code.
Not everyone who uses the GNU GPL has this goal. Many years ago, a friend of mine was asked to rerelease a copylefted program under noncopyleft terms, and he responded more or less like this: “Sometimes I work on free software, and sometimes I work on proprietary software—but when I work on proprietary software, I expect to get paid.”
He was willing to share his work with a community that shares software, but saw no reason to give a handout to a business making products that would be off-limits to our community. His goal was different from mine, but he decided that the GNU GPL was useful for his goal too.
If you want to accomplish something in the world, idealism is not enough—you need to choose a method that works to achieve the goal. In other words, you need to be “pragmatic.” Is the GPL pragmatic? Let’s look at its results.
Consider GNU C++. Why do we have a free C++ compiler? Only because the GNU GPL said it had to be free. GNU C++ was developed by an industry consortium, MCC, starting from the GNU C compiler. MCC normally makes its work as proprietary as can be. But they made the C++ front end free software, because the GNU GPL said that was the only way they could release it. The C++ front end included many new files, but since they were meant to be linked with GCC, the GPL did apply to them. The benefit to our community is evident.
Consider GNU Objective C. NeXT initially wanted to make this front end proprietary; they proposed to release it as ‘.o’ files, and let users link them with the rest of GCC, thinking this might be a way around the GPL’s requirements. But our lawyer said that this would not evade the requirements, that it was not allowed. And so they made the Objective C front end free software.
Those examples happened years ago, but the GNU GPL continues to bring us more free software.
Many GNU libraries are covered by the GNU Lesser General Public License, but not all. One GNU library which is covered by the ordinary GNU GPL is Readline, which implements command-line editing. I once found out about a nonfree program which was designed to use Readline, and told the developer this was not allowed. He could have taken command-line editing out of the program, but what he actually did was rerelease it under the GPL. Now it is free software.
The programmers who write improvements to GCC (or Emacs, or Bash, or Linux, or any GPL-covered program) are often employed by companies or universities. When the programmer wants to return his improvements to the community, and see his code in the next release, the boss may say, “Hold on there—your code belongs to us! We don’t want to share it; we have decided to turn your improved version into a proprietary software product.”
Here the GNU GPL comes to the rescue. The programmer shows the boss that this proprietary software product would be copyright infringement, and the boss realizes that he has only two choices: release the new code as free software, or not at all. Almost always he lets the programmer do as he intended all along, and the code goes into the next release.
The GNU GPL is not Mr. Nice Guy. It says no to some of the things that people sometimes want to do. There are users who say that this is a bad thing—that the GPL “excludes” some proprietary software developers who “need to be brought into the free software community.”
But we are not excluding them from our community; they are choosing not to enter. Their decision to make software proprietary is a decision to stay out of our community. Being in our community means joining in cooperation with us; we cannot “bring them into our community” if they don’t want to join.
What we can do is offer them an inducement to join. The GNU GPL is designed to make an inducement from our existing software: “If you will make your software free, you can use this code.” Of course, it won’t win ’em all, but it wins some of the time.
Proprietary software development does not contribute to our community, but its developers often want handouts from us. Free software users can offer free software developers strokes for the ego—recognition and gratitude—but it can be very tempting when a business tells you, “Just let us put your package in our proprietary program, and your program will be used by many thousands of people!” The temptation can be powerful, but in the long run we are all better off if we resist it.
The temptation and pressure are harder to recognize when they come indirectly, through free software organizations that have adopted a policy of catering to proprietary software. The X Consortium (and its successor, the Open Group) offers an example: funded by companies that made proprietary software, they strived for a decade to persuade programmers not to use copyleft. When the Open Group tried to make X11R6.4 nonfree software, those of us who had resisted that pressure were glad that we did.
In September 1998, several months after X11R6.4 was released with nonfree distribution terms, the Open Group reversed its decision and rereleased it under the same noncopyleft free software license that was used for X11R6.3. Thank you, Open Group—but this subsequent reversal does not invalidate the conclusions we draw from the fact that adding the restrictions was possible.
Pragmatically speaking, thinking about greater long-term goals will strengthen your will to resist this pressure. If you focus your mind on the freedom and community that you can build by staying firm, you will find the strength to do it. “Stand for something, or you will fall for anything.”
And if cynics ridicule freedom, ridicule community… if “hard-nosed realists” say that profit is the only ideal… just ignore them, and use copyleft all the same.
Copyright c 1998, 2003 Free Software Foundation, Inc.
This version of this essay is part of Free Software, Free Society: Selected Essays of Richard M. Stallman, 2nd ed. (Boston: GNU Press, 2010).
Verbatim copying and distribution of this entire chapter are permitted worldwide, without royalty, in any medium, provided this notice is preserved.
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