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The mental picture of pirates on the high seas, current events notwithstanding, brings to mind visions of centuries old battles and the taking of cold hard cash treasure. But, when you picture copyright piracy, that brings to mind visions of .........
well, to tell the truth it would be visions of centuries old battles. Copyright piracy is not remotely new. The argument over what’s yours, what’s mine and what’s ours has been around for centuries. This being The Tartar Sauce you might be asking, what does this have to do with music and video games or whatever? The answer is, everything. When you understand why we have copyright laws in the first place you then can form well-reasoned opinions about what today’s copyright laws should be.
I can’t go into a long tome about copyright history because (1) I don’t have time, (2) there’s plenty of good sources on the web that cover it and (3) I don’t want to put anyone to sleep. So I’ll just touch on a few things and then get back to the present. One note of warning: if you go to a law library and look at one of the recognized treatises on copyright law you will find that they are massive multi-volume publications. Patry on Copyright (a great source) is eight very large looseleaf volumes and Nimmer on Copyright (the most widely cited source in court opinions) is eleven large looseleaf volumes. My point in saying this is that nothing I say here is complete. Copyright law is large and complex. To summarize the law is to misstate the law. Jake says his “views on music piracy aren't very simple”, and so they should not be. Copyright law is not simple. So, all the typical caveats should apply such as YMMV and IANAL (well actually I am but that’s not the point).
Venture with me now, back about half a millennium.
In the 1500s, Martin Luther complained bitterly about the problem of piracy. Many printers made a handsome living on pirate editions of Luther's writings. Interestingly, Martin Luther wasn’t that concerned about the loss of potential income. Instead, he was much more upset that the content of his writing wasn’t reproduced accurately and that his message ended up distorted. On the subject of printers ripping off his work, Luther said,
“these misers and thievish pirate printers handle our work faithlessly. Because in their hunger for money they do not worry themselves about whether one of their pirated texts is correct or erroneous. Often have I had to experience that a pirated text is so incorrect that in several places I could not recognize my own work.”
Imagine what Luther would think about Microsoft Songsmith. He worried that his ideas on scripture would be screwed up by careless printers. Not money, not economics, but the rights of authors to preserve the integrity of their work. There were others, however, who did complain about the money lost to authors. Jean Le Chapelier addressed the Paris Assembly on the subject in 1791. He said,
“The most sacred, most personal of all the properties, is the work fruit of the thought of a writer [...] so it is extremely just that the men who cultivate the field of thought enjoy some fruits from their work, it is essential that during their life and a few years after their death, nobody can dispose of the product of their genius, without their consent.”
So at least as far back as 1791 some folks disagreed with Jake’s position below that an artist’s work should enter the public domain upon their death. Le Chapelier thought the economic rights should last “a few years” after death. Of course, Le Chapelier had lots of unpopular ideas in the French revolutionary period, and Le Chapelier met a rather gruesome demise at the bottom of a guillotine.
Championing author’s rights a century later was Victor Hugo. A prominent author in his own lifetime, Hugo was the founder and first president of the Association Littéraire et Artistique Internationale, an organization formed with the purpose of advocating for the establishment of fair laws to protect authors. Speaking of the status of things at the time, Hugo said,
“Before the publication, the author has an undeniable and unlimited right. Think of a man like Dante, Molière, Shakespeare. Imagine him at the time when he has just finished a great work. His manuscript is there, in front of him; suppose that he gets the idea to throw it into the fire; nobody can stop him. Shakespeare can destroy Hamlet, Molière Tartufe, Dante the Hell.
But as soon as the work is published, the author is not any more the master. It is then that other persons seize it: call them what you will: human spirit, public domain, society. It is such persons who say: I am here; I take this work, I do with it what I believe I have to do, [...] I possess it, it is with me from now on.”
Victor Hugo was recognizing that the rights of society, what copyright laws today call the public domain, arise as soon as authors publish their works. Exactly what that those public domain rights are, and where they must yield to the superior rights of the author, was the center of his debate and it led to the Berne Convention, an early and now widely adopted copyright law that protects the rights of authors.
So, there are two distinct interests that these early thinkers identified: (1) The economic rights in a work, and (2) the rights of authors to preserve the creative integrity of their works, now more often referred to as “moral rights”.
Here in the United States, the drafters of the Constitution held the prevailing English view at the time that economic rights are to be protected, but they didn’t concern themselves much with moral rights. The U.S. Constitution, drafted in 1787, grants to the Federal government the power to enact copyright laws. Article 1 Section 8 clause 8 of the states that congress, “shall have power [...] to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” James Madison, in the Federalist Papers, wrote to justify the position that copyright laws are good for society and that the states should let the Federal government have that power so there would be uniformity. He wrote,
“The utility of this power will scarcely be questioned. The copyright of authors has been solemnly adjudged, in Great Britain, to be a right of common law. The right to useful inventions seems with equal reason to belong to the inventors. The public good fully coincides in both cases with the claims of individuals.”
So in the USA copyright law started out with the purpose of protecting economic rights in order “to promote the progress of science and useful arts”. Congress enacted copyright laws many times since, with major enactments in 1790, 1831, 1909, and 1976. Then, in 1989, the United States became a signatory to the Berne Convention and thereby (mostly) also adopted a set of provisions that protected moral rights.
My opinions on copyright law start with the assumption that at least some degree of economic rights and moral rights are valid and should be protected by law. We need those laws. I am not an anarchist. Authors need to earn a living, they deserve credit where it’s due, and they deserve to keep others from taking their work and botching it up without permission.
On the other hand, the public has rights too. For example, just because Gene Roddenberry wrote cool stories about people making treks in star ships doesn’t mean no one else can write stories about star ships travels. Of course, you probably better not name the captain “Kirk” or “Picard” and have a “Vulcan” named “Spock”. That would be bad form, not to mention illegal. But, even the rights to those characters of his creation shouldn’t last forever. West Side Story is a deliberate retelling of Romeo and Juliet.
Yet, Roddenberry makes a good example, because he is dead. It is the heirs of Roddenberry that own the Star Trek estate. Jake proposes that all copyrights should die with the author. Maybe that’s right. Maybe not. What if a young musician, trying to earn a living and raise a family, creates a popular song and is then tragically hit by a bus. Jake would have his family be out of luck. Sorry, the song is in the public domain now.
I see it as reasonable and proper that the law provides financial incentive to authors to create their works. Speaking for myself, I’m not working to earn a living just for my own self, but for my family too. Frankly, speaking as a parent, it’s all about the next generation. I believe the right to control an author’s work should rightly last that author’s lifetime, and then to the heirs of the author for at least a little bit. Maybe twenty years. On the ridiculous side, the law now provides rights for the life of the author plus 70 years which I think most people who aren’t copyright owners would agree is too long.
I like the guidance provided by Madison. Underlying copyright laws are the purposes which they are intended to serve. As set in the Constitution, those purposes are, “to promote the progress of science and useful arts.” If a law encourages people to create music, art, literature and so on, then that law is serving a rightful purpose and should be respected. But, if a law really bears no relation to encouraging those things, then the law is wrong and should be changed.
My biggest gripe about copyright law is that the major copyright holders (Sony, Disney, Warner, etc.) spend more money on lobbyists in Washington than most people earn in their lifetimes. The result is that Congress continually grants more and more rights to copyright owners and leaves less and less rights to the public domain. The worst offender was the 1998 Sonny Bono Copyright Term Extension Act which extended the term of copyrights by 20 years. What was most offensive was that the extra 20 years was applied RETROACTIVELY, so that works which were due to expire were given a new life of 20 more years.
No one has yet to recite a plausible argument how adding 20 years to the rights in a creative work done in fifty years ago in any way “promotes the progress of science and useful arts”. All that happened was a giveaway to the rich corporations who were upset that the early Mickey Mouse cartoons (or their songs or their books) were about to be public domain. In most cases, the original authors were long dead. The Supreme Court’s basic logic in upholding the extension even though it isn’t consonant with the Constitution’s purposes was no more complicated than, “well... Congress has done it before lots of times so we guess it’s OK to do it again.”
So the law is the law, and you can argue all you want about “justification” (as Jake put it) for breaking the law. But if you get caught breaking the law, a court doesn’t look at the justification so much, just the letter of the law. Yet, Congress keeps protecting the rights of copyright holders without remembering there are counterbalancing rights held by the public domain.
We should not be looking at “justifications”. We should be looking at the underlying purposes of copyright laws and deciding whether those purposes are well served. Then we should look at the underlying purposes for preserving public domain rights and decide whether those purposes are well served and well balanced against copyright owner’s rights. Most practitioners today argue that the pendulum has swung far too much in the direction of property owners.
We can try to lobby Congress to be more understanding of the necessity of striking that balance. A host of great organization engage in that lobbying on our behalf, such as the American Library Association, the Center for Democracy and Technology, the Consumer Electronics Association, Consumers Union, the Electronic Frontier Foundation, the U.S. Public Interest Research Group, and many more. Let’s hope Congress is listening to us. I’m not all that optimistic.
About the only area where the public’s rights have any strength is when copyright butts up against First Amendment free speech rights. Among other virtuous uses of the First Amendment, that’s how Weird Al makes a living. For a good outcome, a win for the little guy, see the wiki page on Golan v. Holder here: http://en.wikipedia.org/wiki/Golan_v._Ashcroft. Unfortunately, it is the courts that push back on copyright law to make way for free speech instead of Congress doing the right thing by drafting laws that are balanced.
And I don’t expect this new President will help at all. I’m as much of an Obama fan as you can get and I still proudly sport my two Obama/Biden bumper stickers. But, on this topic, there have been some ominous signs.
Obama has nominated to top Justice Department positions several people who have been the copyright industry’s lapdogs. He nominated Donald Verrilli for associate deputy attorney general. Verrilli is the lawyer who went after Grokster, brough a suit again Google on behalf of Viacom, and (horrors!) represents the RIAA! There are other RIAA types he has nominated too, see: http://news.cnet.com/8301-13578_3-10133425-38.html for example. As for Vice President Joe Biden, he was a steadfast RIAA and MPAA ally when he was in the Senate.
Sorry to end on a down note, I see things only getting worse. Industry will lobby to get stronger and stronger protections and will continue to implement stronger (and lamer) DRM. Every time a movie ends up online prior to release the MPAA will shout bloody Armageddon to Congress. Every calendar quarter that CD sales are down the RIAA will plead to Congress that their industry is Doomed unless the evil downloaders are stopped. And all we have is the EFF and the Library Association saying, now now let’s be reasonable.
Maybe that anarchy thing isn’t too bad an idea after all.
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