lobbyist for the Association of American Publishers, said that the publishers “could not live with what [the libraries were] asking for.” Since the libraries were asking only to preserve part of the status quo, one might respond by wondering how the publishers had survived until the present day.
Congressman Barney Frank, in a meeting with me and others who opposed this bill, showed how far the US Constitution’s view of copyright has been disregarded. He said that new powers, backed by criminal penalties, were needed urgently because the “movie industry is worried,” as well as the “music industry” and other “industries.” I asked him, “But is this in the public interest?” His response was telling: “Why are you talking about the public interest? These creative people don’t have to give up their rights for the public interest!” The “industry” has been identified with the “creative people” it hires, copyright has been treated as its entitlement, and the Constitution has been turned upside down.
The DMCA was enacted in 1998. As enacted, it says that fair use remains nominally legitimate, but allows publishers to prohibit all software or hardware that you could practice it with. Effectively, fair use is prohibited.
Based on this law, the movie industry has imposed censorship on free software for reading and playing DVDs, and even on the information about how to read them. In April 2001, Professor Edward Felten of Princeton University was intimidated by lawsuit threats from the Recording Industry Association of America (RIAA) into withdrawing a scientific paper stating what he had learned about a proposed encryption system for restricting access to recorded music.
We are also beginning to see e-books that take away many of readers’ traditional freedoms—for instance, the freedom to lend a book to your friend, to sell it to a used book store, to borrow it from a library, to buy it without giving your name to a corporate data bank, even the freedom to read it twice. Encrypted e-books generally restrict all these activities—you can read them only with special secret software designed to restrict you.
I will never buy one of these encrypted, restricted e-books, and I hope you will reject them too. If an e- book doesn’t give you the same freedoms as a traditional paper book, don’t accept it!
Anyone independently releasing software that can read restricted e-books risks prosecution. A Russian programmer, Dmitry Sklyarov, was arrested in 2001 while visiting the US to speak at a conference, because he had written such a program in Russia, where it was lawful to do so. Now Russia is preparing a law to prohibit it too, and the European Union recently adopted one.
Mass-market e-books have been a commercial failure so far, but not because readers chose to defend their freedom; they were unattractive for other reasons, such as that computer display screens are not easy surfaces to read from. We can’t rely on this happy accident to protect us in the long term; the next attempt to promote e-books will use “electronic paper”—book-like objects into which an encrypted, restricted e-book can be downloaded. If this paper-like surface proves more appealing than today’s display screens, we will have to defend our freedom in order to keep it. Meanwhile, e-books are making inroads in niches: NYU and other dental schools require students to buy their textbooks in the form of restricted e-books.
The media companies are not satisfied yet. In 2001, Disney-funded Senator Hollings proposed a bill called the “Security Systems Standards and Certification Act” (SSSCA),[6] which would require all computers (and other digital recording and playback devices) to have government-mandated copy-restriction systems. That is their ultimate goal, but the first item on their agenda is to prohibit any equipment that can tune digital HDTV unless it is designed to be impossible for the public to “tamper with” (i.e., modify for their own purposes). Since free software is software that users can modify, we face here for the first time a proposed law that explicitly prohibits free software for a certain job. Prohibition of other jobs will surely follow. If the FCC adopts this rule, existing free software such as GNU Radio would be censored.
To block these bills and rules requires political action.[7]
Finding the Right Bargain
What is the proper way to decide copyright policy? If copyright is a bargain made on behalf of the public, it should serve the public interest above all. The government’s duty when selling the public’s freedom is to sell only what it must, and sell it as dearly as possible. At the very least, we should pare back the extent of copyright as much as possible while maintaining a comparable level of publication.
Since we cannot find this minimum price in freedom through competitive bidding, as we do for construction projects, how can we find it?
One possible method is to reduce copyright privileges in stages, and observe the results. By seeing if and when measurable diminutions in publication occur, we will learn how much copyright power is really necessary to achieve the public’s purposes. We must judge this by actual observation, not by what publishers say will happen, because they have every incentive to make exaggerated predictions of doom if their powers are reduced in any way.
Copyright policy includes several independent dimensions, which can be adjusted separately. After we find the necessary minimum for one policy dimension, it may still be possible to reduce other dimensions of copyright while maintaining the desired publication level.
One important dimension of copyright is its duration, which is now typically on the order of a century. Reducing the monopoly on copying to ten years, starting from the date when a work is published, would be a good first step. Another aspect of copyright, which covers the making of derivative works, could continue for a longer period.
Why count from the date of publication? Because copyright on unpublished works does not directly limit readers’ freedom; whether we are free to copy a work is moot when we do not have copies. So giving authors a longer time to get a work published does no harm. Authors (who generally do own the copyright prior to publication) will rarely choose to delay publication just to push back the end of the copyright term.
Why ten years? Because that is a safe proposal; we can be confident on practical grounds that this reduction would have little impact on the overall viability of publishing today. In most media and genres, successful works are very profitable in just a few years, and even successful works are usually out of print well before ten. Even for reference works, whose useful life may be many decades, ten-year copyright should suffice: updated editions are issued regularly, and many readers will buy the copyrighted current edition rather than copy a ten- year-old public domain version.
Ten years may still be longer than necessary; once things settle down, we could try a further reduction to tune the system. At a panel on copyright at a literary convention, where I proposed the ten-year term, a noted fantasy author sitting beside me objected vehemently, saying that anything beyond five years was intolerable.
But we don’t have to apply the same time span to all kinds of works. Maintaining the utmost uniformity of copyright policy is not crucial to the public interest, and copyright law already has many exceptions for specific uses and media. It would be foolish to pay for every highway project at the rates necessary for the most difficult projects in the most expensive regions of the country; it is equally foolish to “pay” for all kinds of art with the greatest price in freedom that we find necessary for any one kind.
So perhaps novels, dictionaries, computer programs, songs, symphonies, and movies should have different durations of copyright, so that we can reduce the duration for each kind of work to what is necessary for many such works to be published. Perhaps movies over one hour long could have a 20-year copyright, because of the expense of producing them. In my own field, computer programming, three years should suffice, because product cycles are even shorter than that.
Another dimension of copyright policy is the extent of fair use: some ways of reproducing all or part of a published work that are legally permitted even though it is copyrighted. The natural first step in reducing this dimension of copyright power is to permit occasional private small-quantity noncommercial copying and distribution among individuals. This would eliminate the intrusion of the copyright police into people’s private lives, but would probably have little effect on the sales of published works. (It may be necessary to take other legal steps to ensure that shrink-wrap licenses cannot be used to substitute for copyright in restricting such copying.) The experience of Napster shows that we should also permit noncommercial verbatim redistribution to the general public—when so many of the public want to copy and share, and find it so useful, only draconian measures will stop them, and the
