Karl Fogel writes:

The Promise of a Post-Copyright World

Karl Fogel

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

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

The reward for these efforts can be seen in the public's reaction
to the file-sharing lawsuits. While most people agree that this time
the industry went too far, the error is mainly treated as one of
degree — as if the record companies had a valid point,
but had merely resorted to excessive force in making it.

To read the true history of copyright is to understand just how
completely this reaction plays into the industry's hands. The record
companies don't really care whether they win or lose these lawsuits.
In the long run, they don't even expect to eliminate file sharing.
What they're fighting for is much bigger. They're fighting to
maintain a state of mind, an attitude toward creative work that says
someone ought to own products of the mind, and control who
can copy them. And by positioning the issue as a contest between the
Beleaguered Artist, who supposedly needs copyright to pay the rent,
and The Unthinking Masses, who would rather copy a song or a story off
the Internet than pay a fair price, the industry has been
astonishingly successful. They have managed to substitute the loaded
terms "piracy" and "theft" for the more accurate
"copying" — as if there were no difference between
stealing your bicycle (now you have no bicycle) and copying your song
(now we both have it). Most importantly, industry propaganda has made
it a commonplace belief that copyright is how most creators earn a
living — that without copyright, the engines of
intellectual production would grind to a halt, and artists would have
neither means nor motivation to produce new works.

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

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

But to treat this small group as representative would be to confuse
marketing with reality. Most artists' lives look nothing like theirs,
and never will, under the current spoils system. That is why the
stereotype of the impoverished artist remains alive and well after
three hundred years.

The publishing industry's campaign to preserve copyright is waged
out of pure self-interest, but it forces on us a clear choice. We can
watch as most of our cultural heritage is stuffed into a vending
machine and sold back to us dollar by dollar — or we
can reexamine the copyright myth and find an alternative.

---

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

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

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

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

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

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

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

The Statute of Anne is often held up by champions of copyright as
the moment when authors were finally given the protection they had
long deserved. Even today, it continues to be referenced both in
legal arguments and in press releases from the publishing industry.
But to interpret it as an authors' victory flies in the face of both
common sense and historical fact  style="text-decoration: none">[3]. Authors, having never had
copyright, saw no reason now to suddenly demand the rather paradoxical
power to prevent the spread of their own works, and did not do so.
The only people threatened by the dissolution of the Stationer's
monopoly were the Stationers themselves, and the Statute of Anne was
the direct result of their lobbying and campaigning. In the memorable
words of the contemporary Lord Camden, the Stationers "...came up to
Parliament in the form of petitioners, with tears in their eyes,
hopeless and forlorn; they brought with them their wives and children
to excite compassion, and induce Parliament to grant them a statutory
security." [4]

 To make their argument more palatable, they had proposed that
copyright would originate with the author, as a form of property that
could be sold to anyone — anticipating, correctly,
that it would most often be sold to a printer.

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

....The stationers made the case that they could not produce the
fragile commodities called books, and thus encourage learned men to
write them, without protection against piracy... There is an
apparent tracing of rights to an ultimate source in the fact of
authorship, but before attaching large importance to this we have
to note that if printing as a trade was not to be put back into the
hands of a few as subject of monopoly — if the statute
was indeed to be a kind of "universal patent" — a
[legal] draftsman would naturally be led to express himself in
terms of rights in books and hence to initial rights in authors. A
draftsman would anyway be aware that rights would usually pass
immediately to publishers by assignment, that is, by purchase of
the manuscripts as in the past. ... I think it nearer the
truth to say that publishers saw the tactical advantage of putting
forward authors' interests together with their own, and this tactic
produced some effect on the tone of the statute. style="text-decoration: none">[5]

The Statute of Anne, taken in historical context, is the smoking
gun of copyright law. In it we can see the entire apparatus of modern
copyright, but in still-undisguised form. There is the notion of
copyright as property, yet the property is really intended for
publishers, not authors. There is the notion of benefitting society,
by encouraging people to write books, but no evidence was offered to
show that they would not write books without copyright. Rather, the
Stationers' argument was that publishers could not afford to
print books without protection from competition, and that
without the prospect of distribution, authors would produce fewer new
works. Nor was this entirely disingenuous; indeed, had it been
totally implausible, the courts and parliament would not have been so
amenable. The publishers were now effectively forced to pay authors
in return for exclusive printing rights (although in fact the
Stationers had sometimes payed authors even before, simply to
guarantee the completion and delivery of a work). The authors who
succeeded in selling this new right to printers had no particular
motivation to complain — and naturally, we don't hear
very much about the authors not so favored. The consolidation of
author's copyright probably did contribute to the decline of patronage
as a source of income for writers  style="text-decoration: none">[6], and even allowed some authors,
though always a small minority, to support themselves solely from the
royalties their publishers shared with them.

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

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

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

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

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

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

---

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

But today, the medium over which content is distributed can be
unrelated to the medium in which it is ultimately consumed. The data
can be sent over a wire, at essentially no cost, and the user can
print up a copy at their own expense, and at whatever quality they can
afford, on the other end [7]. Thus the practice of charging the same fee for each
copy, regardless of how many copies there are, makes little sense,
since the cost of producing and distributing the work is now
essentially fixed, no longer proportional to the number of copies.
From society's point of view, every dollar spent beyond the amount
needed (if any) to bring the work into existence in the first place is
a waste, an impediment to the work's ability to spread on its own
merits.

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

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

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

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

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

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

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

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

These are just a few examples of ways to support creative work
without copyright. There are many other methods  style="text-decoration: none">[9]; there were many even before the
Interent made convenient, direct micropayments possible. Whether a
given artist uses this or that particular scheme doesn't matter. The
important thing is that with little or no friction to impede the
payment of tiny amounts, authors will find ways to make such payments
happen on the scale they need. Those economists who are enamoured of
markets as a solution to everything should be in love with the
possibilities here (but, predictably, many are not, because they hate
to see anything become depropertized).

---

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

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

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

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

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

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

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

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

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

You don't need to be a lawyer to be a musician, but you do need to
know one legal term — copyright. To all creative
artists — poets, painters, novelists, dancers,
directors, actors, musicians, singers, and
songwriters — the term matters dearly.

To all artists, "copyright" is more than a term of intellectual
property law that prohibits the unauthorized duplication,
performance or distribution of a creative work. To them,
"copyright" means the chance to hone their craft, experiment,
create, and thrive. It is a vital right, and over the centuries
artists have fought to preserve that right; artists such as John
Milton, William Hogarth, Mark Twain, and Charles Dickens. Twain
traveled to England to protect his rights, and Dickens came to
America to do the same.

Recognize that? It's a page straight out of the Stationers'
playbook — an undisguised retelling of the copyright
myth, complete with references to individual authors, designed to
arouse our support for struggling artists valiantly fighting for their
artistic integrity. Apparently, all those artists throughout history
who did just fine without copyright aren't included in "all creative
artists" as far as the RIAA is concerned. Professor Patterson's
comments, about the Stationers' similar use of authors as a foil in
front of the eighteenth century English parliament, are equally
applicable today: "They [the Stationers] did so by arguments intended
to elicit sympathy for the author (conveniently ignoring their role in
creating the poor plight of the author that they bemoaned) and avoided
sound logic and reason." [10].

The next paragraph in the RIAA's introduction to copyright is even
worse. It's a brief — very
brief — introduction to the origins of copyright law,
heavy with the cadence of historical inevitability, but rather loose
with the facts:

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

This breathless summary is the copyright equivalent of
"Christopher Columbus sailed to America to prove the Earth was round
and make friends with the Indians". Yes, much money has indeed been
spent in legal battles, but the RIAA is careful not to say who spent
it, nor are any further details given about the "principle of
protecting the rights of artists" that is alleged to predate these
developments.

The rest of their page continues in a similar vein, with so many
omissions, mischaracterizations, and outright lies that it's hard to
imagine how anyone doing even a modicum of research could have written
it. It is, basically, low-grade supporting propaganda in their
ongoing campaign to convince the public that copyright is as
fundamental to civilization as the laws of thermodynamics.

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

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

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

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

One woman who has received a subpoena from the recording
industry association said she had struggled to explain to her
13-year-old son why file-sharing was wrong.

"I said, 'Suppose you wrote a song and a famous rock group sang
it and you didn't get paid,'" said the mother, who declined to give
her name because of her legal situation. "He said: 'I wouldn't
care. That would be awesome.' They're still just in that young
age where money doesn't matter."

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

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

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

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

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

---

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

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

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

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

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

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

The content of this article is released under free copyright, and
may be redistributed, excerpted, and modified without restriction.


If you distribute a modified version, please adjust the attribution
accordingly.

[1] These events can be read in any history of copyright.  A good
    online resource regarding their legal implications is 
    "Copyright And `The Exclusive Right' Of Authors"
    http://www.lawsch.uga.edu/jipl/old/vol1/patterson.html 
    Journal of Intellectual Property, Vol. 1, No.1, Fall 1993,
    by Professor Lyman Ray Patterson, Pope Brock Professor of Law 
    at the University of Georgia and a noted intellectual property
    scholar.  His description of this earliest copyright is
    concise and revealing:

     The event in the history of Anglo-American copyright that led to
     the shaping events of the seventeenth and eighteenth centuries 
     was the Charter of the Stationers' Company granted in 1556 by 
     Philip and Mary .... The Charter gave the stationers the power
     to make "ordinances, provisions, and statutes" for the
     governance of "the art or mistery of [s]tationery," as well as
     the power to search out illegal presses and books and things with
     the power of "seizing, taking, or burning the foresaid books or
     things, or any of them printed or to be printed contrary to the
     form of any statute, act, or proclamation ...."

     The power to burn offending books was a benefit to the sovereign
     (a weapon against unlawful publications), and a boon to the
     stationers (a weapon against competition). The book-burning power
     thus shows the real motivation for the Charter, to secure the
     allegiance of the stationers as policemen of the press for the
     sovereign in an uncertain world.

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

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

[4] Kaplan, p. 6.

[5] Kaplan, pp. 7-9. 

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

[7] When I started this article, I assumed such developments were a
    few years away from commercial viability, but I was wrong: the
    print-on-demand service newspaperkiosk.com is already up and running.

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

[9] For a description of one funding technique, and a survey of others,
    see "The Street Performer Protocol and Digital Copyrights" by John
    Kelsey and Bruce Schneier, at
    http://www.firstmonday.dk/issues/issue4_6/kelsey/.

[10] Patterson; see [1].