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January 26, 2010

Copyright + Common Sense? Maybe So.

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Posted by Alan Wexelblat

In the past, I've made the comparison of copyright laws and speeding laws. If you go faster than the posted limit you're breaking the law. Likewise you may be breaking the law by copying or sharing copyrighted materials. Doing either can get you a chat with the cops and some hefty fines.

Yet, the fact remains that most people speed. Some people are really egregious dangerous hotheads. But the vast majority of speeders are not those people - they're just folk who are making an estimate of the safe speed they can achieve, what the prevailing traffic is doing, and driving accordingly. Speed limits be damned.

Likewise, there are some really egregious copyright violators - factories in China that pump out millions of unauthorized DVDs. But most people are casual copyright violators, because they're engaged in activities that seem safe and sensible, such as loaning books to each other. What's necessary is a copyright enforcement regime that recognizes not all copyright violations are the same, and doesn't try to pile on ridiculous fines for sharing a few songs in the absurd hope that this will induce social behavioral change.

Cory Doctorow's latest column for the Guardian (UK) starts to sketch what such a common-sense + copyright scheme might look like. As a first step, he proposes that we re-establish the difference between commercial and non-commercial copying. The former, done in order to make money, would be treated differently from the latter. There are, of course, large gray areas between the two obvious extremes, which Doctorow acknowledges.

He goes on to give several examples of things that, applying a common sense test, would seem to be OK even though they might be thought of as commercial (e.g. mailing a copy of an interesting technical article to your boss). I definitely could quibble with some of his examples and I imagine many readers could as well. This is both on and off the point. It's off the point in that the specific examples don't necessarily matter if you buy into the principles behind them. It's on the point, though, in that what may seem like "common sense" to one of us may not be a shared idea of common sense to all. And "common sense" evolves, often faster than the law can change to catch up.

What's needed, I think, is a way to go beyond the simple phrase of "common sense" and to talk about what that might mean and how it would change. At base, though, I think we all agree that overly rigid copyright regimes serve nobody's interest.

Comments (4) + TrackBacks (0) | Category: Big Thoughts


1. Crosbie Fitch on January 26, 2010 5:57 PM writes...

If you compared the unconstitutional legislation of copyright in 1790 with Thomas Paine's earlier 'Common Sense' pamphlet introducing the people of the New World to the concept of natural liberty you'd probably spot the point at which it all went so terribly wrong.

Copyright should be abolished. It is a privilege incompatible with the natural right to liberty. It is an injustice.

Suggesting that copyright shouldn't apply to non-commercial infringers is like suggesting that slaves who are no longer capable of work should be set free.

You're missing the elephant. The individual deserves their liberty - unadulterated.

Liberty includes the act of exchange as well as that of giving and receiving. Lessig lacked common sense when he created the 'non-commercial' option.

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2. T. D. on January 27, 2010 11:32 AM writes...

Right on, Alan. It is the common sense that has been sorely lacking. In the U.S. at least, we have been struggling to adapt a now 101 year-old regime (which was antiquated even when it was passed) to a current intellectual property landscape when it would be so much easier to start from scratch, and would end up with a better product. In any event, the law needs to do a better job of reflecting reality.

Crosbie, I understand the historical implications of copyright law, though unconstitutional it is not. That copyright law is (perhaps mistakenly) pegged to a constitutional right that was designed to protect scientific writings only is immaterial since lawmakers are free to create a copyright law independent of the Constitution.

To suggest that copyright is, in itself, a deprivation of a personal liberty is misguided - all laws are in one way or another a limit of personal freedoms and liberties. To use Alan's example, speeding laws deprive you of your right to drive your car however you want.

In fact, to abolish copyright would be more depriving of an individual's liberty - the right to control his or her own creations. What you suggest is that everything created by individuals should be free to the general public to use and exploit, which is hardly a fair interpretation of the meaning of individual liberty.

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3. Vincent on January 27, 2010 2:34 PM writes...

And sometimes the fines are comparable too:

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4. Crosbie Fitch on January 27, 2010 2:37 PM writes...


"The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people."

Thus unless the constitution empowers congress to grant copyright (the privilege of a reproduction monopoly necessarily suspending the individual's natural right to copy) it has no sanction to make such a law. And, the constitution does not so empower congress. It only empowers congress to secure the (natural) exclusive right of authors and inventors to their writings and designs. It mentions nothing of the power to grant monopolies.

Laws are supposed to protect people, their rights, to life, privacy, truth and liberty. The protection of life by limiting the speed of vehicles on public roads is within the definition of liberty, i.e. liberty does not include the freedom to endanger the lives of others.

It is a corrupt definition of liberty that requires control over others in terms of what they may or may not do with their possessions, and whether they may share or improve upon them. Liberty is freedom from another's control, it is not about having control over others. You can try saying 'freedom to stop you singing my song' as if 'freedom' makes it a liberty, but what you're really claiming is the 'POWER to stop you singing my song', a privilege.

I do not suggest that all creations should be free to the public. I suggest that people are naturally at liberty to use, perform, copy or improve the creations that have been delivered to them (whether through gift or sale). Remember authors have a natural exclusive right only to those writings that are exclusive to them. One has no natural right to exclude others from what you have given them. For that it takes the granting of a privilege, i.e. such that the holder is granted an unequal and superior claim over what someone else knows or possesses and what they may do with it, whether sing or copy it.

Check out Wikipedia for details of what Thomas Paine wrote a little later in the Rights of Man:

Human rights originate in Nature, thus, rights cannot be granted via political charter, because that implies that rights are legally revocable, hence, would be privileges:

It is a perversion of terms to say that a charter gives rights. It operates by a contrary effect - that of taking rights away. Rights are inherently in all the inhabitants; but charters, by annulling those rights, in the majority, leave the right, by exclusion, in the hands of a few . . . They . . . consequently are instruments of injustice.

The fact, therefore, must be that the individuals, themselves, each, in his own personal and sovereign right, entered into a compact with each other to produce a government: and this is the only mode in which governments have a right to arise, and the only principle on which they have a right to exist.

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