Check Your (Intellectual) Privilege: a book recommendation

I recently finished reading Intellectual Privilege: Copyright, Common Law, and the Common Good by Tom W. Bell, and I’m glad I did. In the introduction, Tom Bell promises to offer a “libertarian view” of copyright, and this libertarian thinks that Tom delivers the goods.

I was actually surprised by how libertarian the book is. You see, in the publicity for the book (like this video), Tom informs us that the book is covered under what calls a “Founder’s Copyright”, in which he and the Mercatus Center reserve only some rights (the rights specified in the original 1790 Copyright Act), and only for a limited time (28 years, the maximum time offered under the original Copyright Act). This is highly preferable to modern copyright law, but not nearly as good as no copyright at all. With that as introduction, I was expecting a wishy-washy “middle of the road” take on copyright. I was unprepared to read Tom saying things like this:

Copyright thus creates both a legal power to censor and an economic incentive to speak, an uneasy but unavoidable conflict that Neil Netanel, a professor at University of California, Los Angeles, School of Law, has aptly described as “copyright’s paradox.”
Copyright’s paradox reaches beyond mere speech, however. Although often described as a form of property, copyright relies for its very existence on violating property rights – the traditional common-law rights that each of us presumably enjoys in such tangible things as our printing presses, guitars, and throats. – from Chapter 1

Barely two pages into the first chapter, and Tom has already described copyright as a censorship instrument and as a violation of property rights. Tom W. Bell is not kidding around, folks. And it only gets better from there.

In case you don’t believe his assertions, Tom carefully spells out why copyright cannot be a natural right (here’s an excerpt where he explains why copyright fails to fit John Locke’s definition of natural rights, and here’s another excerpt where he explains why copyright fails to fit Randy E. Barnett’s definition of natural rights). He gives us a thorough history lesson that shows that, while America’s Founders often tried to “sell” copyright to the masses as a natural right, they never actually treated it as such. He closes Chapter 3 with this doozy of a sentence:

In sum, we should consider copyright an unnatural statutory privilege that violates our natural rights and can claim only as much justification as can the state itself.

Now that’s what I like to read in a book discussing copyright. And if I were writing the book, that’s about where I’d end it, staying only long enough to write a conclusion urging my readers to “smash the state”.

That’s not where Tom ends things, perhaps because Tom is not an anarchist. But whatever Tom isn’t, I can say what he is: he is very thorough, rather humble, and quite dedicated to finding a solution to our problems with copyright. And he spends much of the book talking about solutions: both ways to make copyright less odious, and ways to make it unnecessary or irrelevant. Since the governments of the world don’t seem likely to crumble any time soon, it’s likely that copyright will be with us for some time to come, so Tom Bell’s pragmatic solutions might be just what we need to deal with it.

To make copyright less bothersome, Tom describes a legal theory called “copyright misuse”. The idea here is that, since copyright is necessarily a violation of common-law rights, anyone who invokes copyright rights does so at the expense of their own common-law rights. In other words, you can either have common-law protection (which covers your person, property, and promises) or copyright protection (which grants you exclusive rights in distributing your expressions), but not both. He discusses several legal cases where this doctrine has developed, and describes how a more general application of this principle would make copyright less noisome. Take DRM and EULAs, for instance. Both of these are limitations on what a user can do with copyrighted information, justified on grounds of property right or contract. Under the theory of copyright misuse, both of these would be illegal; a copyright holder could limit users’ rights either by copyright or by contract, but not both at the same time, so an EULA that ordered anything besides “Don’t violate copyright law” would be null and void unless it didn’t apply copyright at all, and DRM could not be used to prevent a user from doing anything not forbidden under copyright law. As Tom notes, when copyright and common-law rights combine to oppress, “we should respond by limiting the former and respecting the latter” (from Chapter 7). Tom then goes on to propose an addition to the Copyright Act, which he calls section 107(b), and which reads as follows:

It constitutes copyright misuse to contractually limit any use of a copyrighted work if that use would qualify as noninfringing under § 107(a). No party misusing a work has rights to it under § 106 or § 106A during that misuse. A court may, however, remedy breach of any contract the limitations of which constitute copyright misuse under this section.

This would formally recognize the doctrine of copyright misuse in the relevant legislation, and give abused users a firm defense against copyfraud. And I really must tip my hat to Tom Bell, for how thorough he was in drafting this proposed bit of legislation. You’ll have to read Chapter 8 to see just how much thought he put into this. And in Chapter 9: Deregulating Expressive Works, he proposes another expansion to the Copyright Act, section 301(g):

(g) Nothing in this title annuls or limits any common-law restriction on the use of a fixed work of authorship if that work has been dedicated to the public domain.

Tom believes in the strength of common-law protections (and so do I), so Tom wants to encourage artists and innovators to use common-law methods instead of copyright. Section 301(g) would explicitly allow them to do so even after abandoning copyright. Not such a bad way to encourage folks to contribute to the public domain, if you ask me.

But Tom doesn’t stop there. See, Tom takes seriously the idea that there might exist a “market failure” in the production of expressive, creative works. It’s this market failure that copyright supposedly exists to cure. But instead of legislation, Tom Bell proposes that we look for other ways to cure the market, including improved technology and novel common-law solutions. Chapter 11 is titled “Outgrowing Copyright”, and right there, I must give Tom credit for a hopeful vision. While so many copyright reformers talk about finding the right balance in copyright, Tom talks about finding ways to do without it. Rather than ask “How much do we need?”, Tom asks “How can we get to a point where we don’t need any?” I’d love to here more of this kind of talk from Larry Lessig and Cory Doctorow. Step up your game, guys.

In fact, if you’re the sort who thinks that we can and should find the right balance in copyright legislation, I recommend you read Tom Bell’s analysis of the difficulties involved in doing so, found in Chapter 6: Copyright Politics: Indelicately Imbalanced. I think I can sum up the whole chapter nicely in one sentence from it:

Copyright policy combines all the elements of a public choice tragedy: concentrated benefits, diffuse costs, and state power.

In other words, if you’re waiting for the lawmakers to properly adjust the settings on copyright, you’ve got a lot of waiting ahead of you. There’s a reason they’ve screwed it up thus far, and the reason is that they don’t see any reason to bother getting it right. Hoping for a fix of copyright is probably a pipe dream, even with Tom’s proposed additions, so we’d be better off looking for an escape from copyright, instead.

The book’s conclusion is titled “The Packet-Switched Society”, and it includes a brief discussion of what makes the Internet special and how this offers us a way to render copyright superfluous, changing it from a “necessary evil” to just plain evil. It’s a good conclusion to a good book, and I hope you all will read it. Buy a copy, borrow a copy, whatever you must do. There used to be a draft freely available online, but Tom has since taken that down… but thanks to the Internet Archive, you can still read it! So check it out and give it some thought. You’ll be glad you did.

And to any copyright maximalists who are reading this, let me just say: Check Your Privilege!

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Jack Valenti is wrong about everything

(I’d like to thank Timothy Wu, Eric Brander, and everyone at Wikiquote for helping me pick out quotes for this article)

I have previously said some mean things about Jack Valenti, late head of the MPAA. I am not here to unsay these things, because Jack deserves to have some harsh words thrown at him. After all, he’s the guy who famously compared the VCR to a serial rapist and killer:

We are facing a very new and a very troubling assault on our fiscal security, on our very economic life and we are facing it from a thing called the video cassette recorder and its necessary companion called the blank tape. And it is like a great tidal wave just off the shore. This video cassette recorder and the blank tape threaten profoundly the life-sustaining protection, I guess you would call it, on which copyright owners depend, on which film people depend, on which television people depend and it is called copyright…

I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.
– from these hearings discussing home recording of copyrighted works, given before the House of Representatives, 1982

“Mr. Chairman, if we don’t prevent people from recording shows from off the air, they will rape our profit margins and murder our business model!”

But where there’s smoke, there’s fire, and someone capable of saying something that wrong in front of Congress has almost certainly said all kinds of other wrong things. So let’s have a look at the other wrong things that Jack Valenti has said.

There is no fair use to take something that doesn’t belong to you. That’s not fair use…Now, fair use is not in the law.
– from this interview with Peter Rojas
What is fair use? Fair use is not a law. There’s nothing in law.
– from this interview with Derek Slater

Let me just remind everyone that fair use is defined in law and it’s considered very important by many people. Jack himself displays some knowledge of the reality of fair use later on in both interviews, but it’s clear that he doesn’t like it. Now, it so happens that I don’t like “fair use” much, either. My problem with fair use is that it’s too weak. In the words of Larry Lessig, “fair use in America simply means the right to hire a lawyer to defend your right to create”. That’s not enough for me. But for Jack, it’s just too much that fair use exists at all, and if he had his way, he’d do away with it.

Copyright term extension has a simple but compelling enticement: it is very much in America’s economic interests.
– from this testimony before the 104th Congress

Michele Boldrin and David K. Levine disagree, and they’ve made a thorough case here. They’re not the only ones; Rufus Pollock has made a case that optimal copyright terms ought to reduce over time, and that the current optimum is probably 15 years (I still think the optimal term is zero, but I’m an edge case). But in the face of a long tradition counting such members as Thomas Macaulay and Thomas Jefferson and now bolstered by respectable academics and economists, Valenti dismisses them all and declares that his view – the opposing view – is “simple but compelling”. You’d like to think so, wouldn’t you, Jack?

Whatever work is not owned is a work that no one protects and preserve. The quality of the print is soon degraded. There is no one who will invest the funds for enhancement because there is no longer an incentive to rehabilitate and preserve something that anyone can offer for sale. A public domain work is an orphan. No one is responsible for its life. But everyone exploits its use, until that time certain when it becomes soiled and haggard, barren of its previous virtues. How does the consumer benefit from the steady decline of a film’s quality?
– from the same testimony before the 104th Congress

Evidently, Jack never heard of Project Gutenberg, or the Internet Archive, or any number of people who happily take upon themselves the task of preserving and sharing knowledge and culture, especially when that culture is in the so-called “public domain”. He talks about information as though it were a physical thing that could wear out, ignoring the fact that information is naturally renewable, and that culture grows in value the more it is shared. A public domain work is “owned” by everyone, meaning that everyone has the opportunity to protect, preserve, rehabilitate, and enhance it. If you want a really good study of how the “public domain” helps make works available when copyright fails, look no further than the analysis of Paul Heald, who wrote a couple of papers showing how old books and music just tend to disappear until their copyright expires, at which point they come surging back to life (Christopher Sprigman provides a good summary). In short, Jack is wrong, and we have the data to prove it.

But you’ve already got a DVD. It lasts forever. It never wears out. In the digital world, we don’t need back-ups, because a digital copy never wears out. It is timeless.
– from the interview with Derek Slater

Here, Jack is failing to understand the utility of digital information. No copy lasts forever, and digital copies are no exception (bit rot: if you’ve been waiting to copy that floppy, it might already be too late). What makes digital special is how easy it is to make copies. A digital file is like an amoeba; by itself it might die easily, but it can reproduce at a fantastic rate, and even if they all start dying, you can make new ones as long as you have one left. Libraries have clued in to this and have organized the LOCKSS Program: Lots Of Copies Keep Stuff Safe. Back-ups are what give digital copies their timeless quality. Would you condemn the digital world to die just to prevent copies, Mr. Valenti?

I have said, technology is what causes the problem, and technology will be the salvation of the problem. I really do believe we can stuff enough algorithms in a movie that only the dedicated hackers can spend the time and effort to try to plumb through those 1,000 algorithms to try to find a way to beat it. In time, we’ll be able to do this, because I have great faith in the technological genius that’s out there…
It may be possible to so infect a movie with some kind of circuitry that allows people to copy to their heart’s content, but the copied result would come out with decayed fidelity with respect to sound and color. Another would be to have some kind of design in a movie that would say, ‘copy never,’ ‘copy once.’
– from the interview with Peter Rojas

Ah, DRM. Good folks like Mike Masnick have worked very hard to explain why DRM is bad from a business point of view. But since Valenti is talking about technology, let’s take a more technical point of view. There’s one big technical problem with DRM: it’s impossible. If you’ve ever wondered how hackers keep beating DRM systems so quickly, here’s Cory Doctorow to explain:

In DRM, the attacker is *also the recipient*. It’s not Alice and Bob and Carol, it’s just Alice and Bob. Alice sells Bob a DVD. She sells Bob a DVD player. The DVD has a movie on it — say, Pirates of the Caribbean — and it’s enciphered with an algorithm called CSS — Content Scrambling System. The DVD player has a CSS un-scrambler.

Now, let’s take stock of what’s a secret here: the cipher is well-known. The ciphertext is most assuredly in enemy hands, arrr. So what? As long as the key is secret from the attacker, we’re golden.

But there’s the rub. Alice wants Bob to buy Pirates of the Caribbean from her. Bob will only buy Pirates of the Caribbean if he can descramble the CSS-encrypted VOB — video object — on his DVD player. Otherwise, the disc is only useful to Bob as a drinks-coaster. So Alice has to provide Bob — the attacker — with the key, the cipher and the ciphertext.

Hilarity ensues.
– from this talk

The talk gives some more background on crypto theory, so do read the original if you’ve still got questions. But the important info is all there: in order to be able to watch the movie, the customer has to able to unravel those “1,000 algorithms” on the DVD, and if they can unravel those algorithms to watch the DVD, they can unravel them to copy and share it as much as they please. And then there’s things like the analog hole, and network effects (if just one person cracks the DRM, they can share their liberated info with the whole world). In short, Valenti’s hope of technical “salvation” is a pipe dream.

Now, back to Valenti:

If Congress lets cable systems retransmit local broadcast stations it will not only be magnifying and sanctifying a terrible injustice, but it will have created a huge parasite in the marketplace, feeding and fattening itself off of local television stations and copyright owners of copyrighted materials. We do not like it because we think it would be wrong and unfair.
– from testimony given before Congress in 1972, quoted by Edward Felten

Let me get this straight: if you broadcast something on the open airwaves for everyone to see, and someone receives it and copies it and retransmits it, that’s a “terrible injustice”?

No. No way. A terrible injustice is when you can’t feed your family because you used up your life savings paying off the local protection racket. If you’re going to take your signals and broadcast them for all the world, you don’t get to complain when someone else records them and uses them. This is the same crap that he tried to pull on the VCR, but the difference is that when he tried this argument on cable, people bought it, and cable was forced to pay retransmission fees (Timothy Wu provides historical background and analysis in this paper).

Regarding the VCR, I like this statement from Murray Rothbard:

If I buy a VCR and a blank tape, I should be able to tape a movie or other program off my own TV set. If the TV or movie people don’t like it, they should jolly well have to lump it.
– from this call for papers

I apply that same logic to cables, and say that if a cable company owns a set of cables and a good TV antenna, they can record and retransmit whatever they like, and the TV and movie people can just sit on their hands and deal with it. But Valenti was never content to do that. He knew how to get our government to give him his way, and he served the MPAA well, much to the detriment of the rest of us.

Now, if I may undercut myself a little, I don’t actually disagree with everything that Jack Valenti said. He also said a lot of things against censorship. He advocated the rating system we’re all familiar with as a way to communicate to people what was in a film, so they could make their own decisions. I like that, and I’m glad he did that. He routinely said that he wanted parents to be in charge of what their kids saw, and I thank him for saying so, and for working to make it so.

But to end this on a high (low) note, let me quote Jack saying one more wrong thing:

I sleep each night a little better, a little more confidently, because Lyndon Johnson is my president. For I know he lives and thinks and works to make sure that for all America and indeed, the growing body of the free world, the morning shall always come.
– from an address to the Advertising Federation of America, 28 June 1965

Oh, don’t make me laugh.

Why I Copyleft (reposted from Livejournal)

The following is a slightly edited repost of this LJ post. I’m moving it here for completeness’s sake.

If you look at my personal copyright policy, you’ll see that everything I make is automatically copyleft. Deciding to do so actually took me a bit of time, because there was another option that I still find very appealing: making all of my things public domain. I wanted to do that and I still want to do it, and I shall now attempt to explain why I want what I want and why I’m not doing what I want to do.

But first, what do I mean by “public domain”? There are at least two different definitions for this term.

The first definition of “public domain”, according to the great body of all knowledge, is whatever is not covered by “intellectual property rights” [sic]. This is the definition we’re all probably more familiar with. But there is a second definition. Consider the disclaimer from the bottom of the Crypto Museum’s website. I quote:

“To the best of our knowledge, this site only contains information that is either available in the public domain or that is unclassified or that has been officially declassified. Whenever possible, the source of the information will be credited in the References section at the bottom of each page. In some cases the classification status of an object is not entirely clear because there is no list of classified objects available in the public domain.” (emphasis in original)

Here, “public domain” basically means “not classified”, or, in other words, “known to the public”. If this essay by Crosbie Fitch is correct, then this definition is actually the older one, and I think that it is the more logical definition.

If you disagree, please consider this: what happens when you “publish” something? To publish is to make something known to the public. When something is made public, it is in the public’s realm and under the public’s control. Does this not make it part of “the public domain”? Published material certainly can’t be called “classified”. J.K. Rowling may own the copyright on Harry Potter, but millions of people have read those beloved books, and no one can take the words away from them. Harry Potter is in our hearts and minds, and claiming to “own” the “expressions” in the HP series is ridiculous; how can you own what you have given away millions of times over? So really, all published works ought to be Public Domain. If you want to keep something private (a state which I’m going to call “Private Domain”), then don’t make it public, or in other words, don’t publish it.

Alas, this simple concept does not appeal to monopolists and censors, so they invented “intellectual property” to lock up parts of public knowledge. Within the Public Domain, they created a new state which I shall call the Plundered Domain. The Plundered Domain consists of all public information that others force us to treat as if it were private. It’s an inherently unstable and illogical state of affairs, but people seek to perpetuate it because of the opportunities it gives for control and profit. In our time, the Plundered Domain has steadily grown, swallowing up more and more of the Public Domain. Mike Linksvayer has a good writeup here, showing how the reach of copyright has continuously expanded, entrapping ever greater amounts of information within the Plundered Domain.

So when Zacqary Adam Green post an angry rant in response to an appeals court saying that putting out-of-copyright works back into copyright is totally okay, I don’t get quite as angry as Zacqary, because how can I get mad at copyright for doing what it’s always done? “Intellectual property law” has never served the public; it is a tool for plunderers.

In response to this terrible state of affairs, many people set out to formally reject the principles of the Plundered Domain and make their works truly public. Some declared their work to be “no rights reserved”, some adopted a BSD-style license, and some got really snarky, like Woody Guthrie:

“This song is Copyrighted in U.S., under Seal of Copyright #154085, for a period of 28 years, and anybody caught singin’ it without our permission, will be mighty good friends of ourn, cause we don’t give a dern. Publish it. Write it. Sing it. Swing to it. Yodel it. We wrote it, that’s all we wanted to do.”

The trouble is, it didn’t quite work. Microsoft and Apple happily swallowed up BSD-licensed code but neglected to publicize their alterations, instead preferring to embrace, extend and extinguish the free alternatives to their proprietary systems. And poor Woody got it even worse: five different organizations still claim copyright over his songs, hoping to control the music he had sought to liberate.

It was not enough to refuse the Plundered Domain, and it was too dangerous to go against it. The lawmakers would not be denied. People needed a new solution. Then some cheeky folks had a thought: if we can’t afford to ignore the law, and we can’t afford to change the law, and we certainly can’t afford to break the law, can we still subvert the law? Can we use the power of the law against itself?

One of these cheeky folks was Richard Stallman, who created the GNU General Public License. Under the terms of the GPL, you could use information, and modify and share and sell that information, and everything else that you’d be able to if the information were “public domain”, except for privatizing the information. GPL’ed stuff stayed under the GPL for as long as it stayed under copyright. In the words of Rob Myers, it was an “ironisation of copyright law”, taking the means of the law to achieve opposite ends.

Sadly, the GPL wasn’t perfect, so it’s needed two major revisions, but even worse than that was Stallman’s decision to not apply it uniformly. He also made the Free Documentation License (which sounds nice, but Debian rejected it for not being a truly free license, and Wikipedia rejected it in favor of the superior CC-BY-SA) and the Verbatim Copying License, which is brief, simple, and utterly wrongheaded.

But in spite of human flaws and frailties, the principle of copyleft was established, and it has held true. Under the GPL, free software has flourished, with GNU/Linux being the shining star, and under CC-BY-SA, free knowledge and culture have flourished, with Wikipedia being the shining star. The copylefters successfully created a new domain, which I shall call the Protected Domain. Within the Protected Domain, free people can stay free, safe from the grasp of plunderers.

Now, none of this is to say that I’ll never make anything “public domain”. Lots of folks whom I admire have done so. Folks like Peter Saint-Andre and Nina Paley and Mike Linksvayer and Rick Falkvinge and the previously mentioned Zacqary Adam Green. There’s value in releasing stuff under a totally liberal license, and I will do so for some of the stuff I do. But under our current system, I don’t consider that to be a safe default. It’s sad to say it, but we need protection from the laws we live under, and in practice, the best protection has come from subverting the laws to work against themselves.

Perhaps someday, when the Plundered Domain has been destroyed and the Protected Domain is free to be merely Public again, I shall look back on all this with a laugh. For now, I copyleft. You are free to use any information I give you, but not free to take away others’ freedom. And that’s how it should be.