Wrong interpretation of copyright.
I was hoping that someone with a greater literary gift than mine would be able to translate a fundamental article that explains and proves (with links) what copyright really is and why it is. But several years passed, no one was honored to do this, and I finally decided. The article is translated unceremoniously, there are probably errors in the translation, if you find it - write me in private, I will correct it.
This article differs from others in that it does not start with copyright law (the typical erroneous approach of lawyers), but ends with it, but does not ignore it (the typical erroneous approach of “freeloaders” inclined to assert that the sole purpose of the existence of copyright is the corporate superprofits and therefore copyright does not deserve consideration at all).
It shows that copyright is a necessary and useful thing, but it should not be compared with inalienable rights such as the right to own property, but rather with production-sharing agreements when the company temporarily transfers the rights to something that absolutely belongs to it (in with PSA - the content of the earth's interior, in the case of copyright - the freedom of citizens) in exchange for what it considers useful for itself (money - in the case of PSA, books / music / films / programs / etc - in the case of copyright ) because he does not own the means of production VA (for the extraction of minerals need a special technique for the creation of works of art - talent). The main content of the article is an explanation of “how we came to such a life,” when the agreement begins to resemble the story of the notorious “school portal” (that is, we give up a lot of rights for many decades, and in return we get a certain amount of pop and tabloid literature in mainly).
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So article
Something strange and dangerous is happening now with copyright. According to the American Constitution, copyright exists for the benefit of consumers — those who read books, listen to music, or use software — and not at all in the name of publishers or authors. However, while there is an increasing tendency among people to reject and not abide by the restrictions that the copyright law imposes on them <for their own good> the US government adds all new restrictions and tries to intimidate people with more terrible punishments.
How did it happen that copyright law began to impose things almost diametrically opposed to its original purpose? And how can we change it so that it begins to conform to its original purpose? In order to understand this, we will have to turn to the sources of US copyright laws: the US Constitution.
Copyright in the US Constitution
When the US Constitution was first created, the idea that the authors have the exclusive right to control their creations was proposed - and rejected. The founders of our country ( note: Stallman is an American, so here we are talking about America) accepted another suggestion: copyright is not a natural right that belongs to the authors, but an artificial construction that gives them certain privileges in the name of progress. The US Constitution assigns the task of writing copyright law to the US Congress in the following paragraph (Article I, Section 8):
[The Congress is competent] to promote the development of science and useful crafts, securing for a certain period of time authors and inventors exclusive rights to their writings and discoveries.
The Supreme Court has repeatedly affirmed that promoting progress should help users of copyrighted works. For example, in the case of Fox Film v. Doyal, the court writes:
The only interest of the United States and the main goal in creating a monopoly (we are talking about the monopoly created by copyright laws) lies in receiving benefits for the people, derived from the works of the authors.
This fundamental decision explains why the US Constitution does not require copyright, but only allows its creation as a possible option - and why it should act "for a limited time." If copyright were a natural right, something that authors get because they deserve it, nothing could justify the termination of these rights after a certain period of time, no more than an absurd proposal to nationalize someone's home after a certain time. from the date of construction.
"Copyright Deal"
Copyright works by granting certain privileges and therefore benefits to publishers and authors; however, it does not do it for their good. Instead, it exists to change their behavior: to create an incentive for authors to write more and publish more. In essence, the government exchanges the natural rights of citizens (for the sake of the people) as part of a deal that aims to give people more published works. Law scholars call this a “copyright transaction.” Approximately like buying an airport or highway for taxpayers' money - except that in this case the government spends freedom, not money.
But is this deal good in its present form for the people? Many deals are possible - how to choose the best one? The whole strategy embedded in copyright law is the result of the answer to this question. If we misunderstand the question, we will most likely choose the wrong strategy.
The US Constitution authorizes the transfer of copyright to authors. But in practice, authors usually transfer their rights to publishers — because publishers usually use these rights, not the authors directly (although authors may get a small piece). Therefore, as a rule, publishers, and not authors, advocate an increase in the rights of authors. In order to better reflect the reality of copyright, rather than the myths relating to it, in this article we will refer to publishers, not authors, as copyright holders. She also calls consumers “readers,” although the use of copyright works may not be reading, because “users” are something remote and abstract.
First mistake: “keeping balance”
The “copyright transaction” puts the people in the first place: the benefit for the reading people is, in fact, the ultimate goal, the privileges of the publishers are just a means to achieve this goal. The interests of readers and publishers are even closely incomparable in this equation in importance. The first mistake in misinterpreting a copyright assignment is that publishers' interests rise to the level of the interests of readers.
It is often said that the US copyright law is designed to “balance” the interests of publishers and readers. Those who pose the question in this way often say that this is a simple reformulation of the basic position recorded in the US Constitution - in other words, this is the question of the “copyright transaction”.
But the two formulations are very far from being equivalent - they differ conceptually and differ in the consequences. The concept of balance assumes that the interests of the readers and the interests of the publishers differ only quantitatively, only in how much they have “different weights” and in that they limit different actions. The term “interested parties” is often used to give a question such a form — it assumes that all sides of a strategy are equally important. This point of view runs counter to the original position of the fundamental difference between the interests of publishers and readers, which was the basis of the “copyright transaction”.
The consequences of this change extend unusually broadly because the basic protection of the people in the “copyright transaction” —the idea that the authors ’privileges can be justified solely and only by the interests of the readers, but never under any circumstances can be justified by the interests of the publishers — is completely denied this interpretation "Balance". Since the interests of publishers can now be considered as an end in themselves, they can justify the granting of certain privileges - in other words, the concept of balance says that privileges can be given in the name of anyone other than the people.
From a practical point of view, the concept of "balance" completely reverses the burden of justification for changes in copyright. The original “copyright transaction” puts publishers in front of the need to convince readers to abandon the use of certain freedoms. The concept of “balance” actually puts everything “upside down,” since there is usually no doubt that publishers will benefit from additional privileges — so if they cannot prove that the harm to readers of these privileges outweighs this benefit, we have to recognize that publishers should get virtually everything they ask.
Since the idea of ​​“balancing” the interests of publishers and readers goes against the fact that the superiority of the interests of readers over the interests of publishers is fundamentally we have to reject it.
Balance what with what?
When the government buys something for the people, it acts in the name of this people, its sacred duty is to provide the best possible deal — the best for the people, not for the other participant in the deal.
For example, when the government signs a contract with a company for the construction of a road, the government seeks to spend the least possible amount of public money. Governments use auctions to lower prices ( note : we all know perfectly well how such auctions end in Russia, but the initial idea, even in this country, is still a reduction in costs).
In practice, the price can not be zero, because companies will not offer such a low price. Although they do not deserve special privileges, they can enjoy the usual rights of a free society, including the right to reject an unfavorable contract - even the cheapest contract will be expensive enough to bring money to the relevant firm. So we really have some form of balance. However, this is not a balance between the interests of the two parties, each of whom has the right to special consideration. This is a balance between public interest and market forces. The government is trying to get tax-paying car owners the best deal it can get in the context of a free society and a free market.
In a “copyright transaction,” the government pays our freedom, not our money. Freedom is a more valuable thing than money, so the responsibility of the government to spend our freedom wisely and economically is much higher than in the case when only money is at stake. Governments should never put the interests of the people on a par with the interests of publishers.
Not "balance", but "compromise"
The idea of ​​a balance between the interests of readers and publishers is the wrong approach to the “copyright transaction”, but there are indeed two interests in this transaction that need to be compared: two reader interests. Readers are interested in the free use of published works, and, depending on the specific conditions, they may be interested in supporting the creation of new published works.
The word “balance” in discussing copyright issues was firmly associated with the idea of ​​a balance between the interests of readers and publishers. Therefore, the use of the word “balance” when discussing these two interests of the people will lead to confusion - we need a new word.
In principle, when someone pursues two goals that conflict and therefore cannot be achieved at the same time, we call it a “compromise.” Therefore, instead of discussing “achieving the right balance” between the interests of the two parties, we should talk about “finding the right compromise between spending freedom (new music, music, etc.) and preserving it”.
The second mistake: “product maximization”
The second mistake in the strategy concerning copyright is to adopt a maximization approach — not just an increase — in the number of published works. The erroneous concept of “balancing interests” equated the interests of publishers and readers; This second mistake raises the interests of publishers to a level far above the interests of readers.
When we buy something, we rarely buy everything that the seller has and also the most expensive item in stock. Instead, we try to save our capital for future purchases, buying only as much as we need and choosing a rather good model, and not the most expensive one. The principle of diminishing returns tells us that spending all our money on a single purchase is unlikely to be a reasonable allocation of resources - we usually prefer to save some of the money for future purchases.
The principle of diminishing returns applies to copyright as much as any other purchase. We must first part with the freedoms that we need the least, but which would be especially appreciated by publishers. While we will part with more and more freedoms, we will notice that every next exchange causes us to part with ever more valuable freedoms and brings less and less satisfaction in the form of increased literary activity. Long before the increase reaches zero, we can say that this increase is no longer worth the increase in price - after that we get a deal that leads to an increase in the number of publications, but not to the maximum ( note perev .: Stallman forgot about another phenomenon: increase total number of publications does not mean an increase in the number of available publications - most of the books, music recordings and software are now impossible to buy, so you can confidently say that by spending less freedom, we would get more actually available items. additations).
Accepting the goal of maximizing the number of publications immediately denies all other, wiser, more profitable deals - this principle requires that the people give up virtually all freedoms regarding the use of published materials only to get a little more publications ( note: even non-publications , and promises of publications - at the end of the process, acquiring one new one, we lose 10 old ones).
Maximizing rhetoric
In practice, the goal of maximizing publications regardless of price for freedom is supported by widespread statements that state that copying by people is illegal, dishonest, and in principle wrong. For example, publishers call people who make copies “pirates”, a dirty term invented to equate people who share information with people close to people attacking ships (this dirty term was previously used by authors in relation to publishers who found loopholes in contracts and printed additional circulations without coordination with the authors; the modern use of the term by publishers is almost the exact opposite). Such statements directly reject the constitutional foundations of copyright putting themselves in the place of the unquestionable principles of the American legal system.
“Pirate” flattery is usually taken at face value because it so permeates all media that people do not realize that this is a radical change in the fundamentals (so it’s not surprising that all other points of view are hushed up). It is effective, because if copying by the people is fundamentally illegal, we can never even ask why we are deprived of this right. In other words, when people ask why publishers should not get even more privileges, the most fundamental and important reason of all - we want to copy - turns out to be disqualified beforehand.
This leaves us with no counter-arguments against increasing the privileges of publishers other than discussing secondary issues. That is why the opposition, which seeks to limit the rights of authors and publishers, almost exclusively discusses secondary issues without even risking raising the main question: why should we, in fact, give up our freedom to distribute copies.
From a practical point of view, the goal of maximization allows publishers to use arguments like "a certain activity leads to a decrease in sales - or we think that it can lead - so it leads to a decrease in the number of publications by an incomprehensible amount and therefore should be prohibited." They are trying to lead us to the absurd conclusion that the benefit for the people is determined by the money that the publishers receive - which is good for Big Press is good for the USA.
Third mistake: maximizing publisher rights
After publishers have agreed to a strategy to maximize the release of publications at any cost, the next natural step is that it requires the transfer of all possible rights to them - so copyright begins to include every conceivable use of the work or legitimizing weird things like “wrapper licenses” .This goal, which includes abandoning the concepts of “fair use (fair use)” and “right of first sale”, is pushed at all possible levels of government from states to international organizations.
This step is fundamentally wrong because it ultimately prevents the creation of new interesting works. For example, Shakespeare borrowed elements of the script of some plays from other plays published a few decades before, so that if modern copyright existed, his creations would be illegal.
Even if we wanted to achieve the maximum possible publication of publications (regardless of the price to the public), maximizing the rights of publishers is a bad way to achieve this. As a means of promoting progress, it is doomed to failure.
The results of the three errors The
current trend in the field of copyright is the granting of ever wider rights to publishers for ever longer periods of time. The concept of copyright (or rather, what remains of it after its threefold erroneous re-adaptation) rarely gives reason to say no. Lawmakers talk about copyright benefits to the public, but in reality they simply give publishers the rights they ask for.
For example, this is what Senator Hatch said when he introduced the bill S. 483 in 1995, which extended the term of copyright by 20 years:
I believe that we are now at such a point regarding the existing term to adequately protect the interests of the authors and the related question is enough Does the defense motivate the creation of new works during this period?
This bill expanded the copyright of already published works written since 1920. This change was a clean gift for publishers with no potential benefits to the public, since there is no way to retroactively increase the number of books published then. However, this handout cost the public freedom, which has a price today - the ability to distribute books written at that time.
This bill also extended the deadline for not yet written works. For works made to order, copyright will last 95 years instead of 75 years. Theoretically, this increases the initiative of writing new works, but any publisher requiring such an increase would have to include estimates of the estimated costs and revenues for the period up to 2075 inclusive.
Needless to say, the Congress did not argue with the arguments of publishers: a law extending the term of copyright was adopted in 1998. It was named the “Sonny Bono Copyright Term Extension Act”, named after one of its sponsors, who died this year. His widow, who sat in Congress before the end of his term, made the following statement:
In fact, Sonny wanted the copyright term to be unlimited. My advisors told me that such a change would be contrary to the Constitution. I urge you all to work with me to strengthen copyright in all directions available to us. As you know, we still have an offer from Jack Valenti to limit this period to “infinity minus one day”. Perhaps the Committee should consider this proposal in the next Congress.
The Supreme Court agreed to consider the constitutionality of a retroactive extension of the term of copyright, because this extension can in no way serve the goals of “promoting the development of science and useful crafts” written in the US Constitution ( note:The Supreme Court ruled that the assignment of copyright terms is the prerogative of Congress and the court is not in a position to decide whether a retroactive expansion will contribute to progress or not, but since in 1790, 1831, 1909 and 1976 retroactive extension of terms did not cause protests, apparently this time it is not a problem).
Another law passed in 1996 made it a criminal offense to create a sufficiently large number of copies of a published work, even if you later distributed them to your friends and acquaintances simply “out of spiritual kindness”. Previously, it was not even an administrative offense.
Worse, the Digital Millennium Copyright Act (DMCA) was designed to bring copy protection back into circulation (which computer users generally cannot tolerate) by making it an offense to crack such protection - or even to publish information on how to do it. This law should be called «Domination by Media Corporations Act» ( ca. Perevi:. Law on dominance of media corporations) because it actually gives publishers the right to create their own copyright. He says that they can impose any restrictions on the use of the publication, and these restrictions acquire the status of a law if the publication contains at least some encryption or perhaps a license manager that forces you to comply with these restrictions.
One of the arguments for the adoption of this bill was the need to amend the laws relating to copyright and bring them in line with the requirements of recently signed international agreements. This agreement was lobbied by the World Intellectual Property Property Organization (WIPO), the organization in which the dominant role is taken by the lobby of the owners of copyright and patents, under pressure from the Clinton Administration; since this agreement only extends copyright ( commentary: giving nothing in return) it seems incredible that its adoption serves the interests of the people. In any case, the bill goes far beyond what was required by the agreement.
Libraries were one of the loudest opponents of the bill, especially in the area of ​​restricting blocking “fair use (fair use)”. How did the publishers respond? The former spokesman for Pat Schroede (now a lobbyist for the Association of American Publishers) said that publishers “cannot live by asking [libraries].” As librarians asked only to preserve part of the status quo, the question arises: how did publishers manage to survive before?
Congressman Barney Frank, in a meeting with me and other opponents of the bill, showed to what extent the disregard of the constitutional approach to copyright came. He said that the new rules, supported by criminal penalties, must be introduced urgently, as the “film industry is excited,” as well as the “music industry” and other “industries”. I asked him "but what about the interests of the people?". His answer says a lot: “Why are you talking about the interests of the people? These resourceful people should not lose their rights for the sake of the interests of the people! ” The industry was identified with the “inventive people” that it hires, the “copyright” was interpreted based only on the name, and the US Constitution was turned upside down.
The DMCA entered into force in 1998. In the form in which the law was passed, he says that the right to “fair use (fair use)” remains nominally legal, but allows publishers to declare all the programs and all the equipment that would allow them to be used illegally. Practically the right to “fair use (fair use)” was outlawed.
Based on this law, the film industry has introduced censorship of free software for reading and playing DVDs, and even just information that allows you to play DVDs. In April 2001, Professor Edward Felten of Princeton University was intimidated by court threats to the state of recall of his scientific work, which described the facts established by him concerning the proposed encryption system, which would have been designed to limit access to musical records.
We are already seeing the emergence of electronic books that rob traditional readers of their freedoms - for example, the freedom to borrow a book to a friend, or the freedom to resell a book in a store, the freedom to take it for a while in the library, the freedom to save incognito when buying (without leaving your name in the corporate database) data), even the freedom to re-read the same book! Encrypted e-books usually limit all these actions - you can read them only with the help of special secret software, which is designed to limit you.
I will never buy one of these encrypted, restricted e-books, and I hope you also reject them. If the e-book does not give you the freedoms provided by a regular book, do not buy it!
Anyone who releases software independently that can read limited e-books can be prosecuted. The Russian programmer, Dmitry Sklyarov, was arrested in 2001 when he visited the US in order to speak at the conference, because he wrote a similar program in Russia, where it was legal. Now Russia is preparing a law that would prohibit this activity ( note: now this law has already entered into force, but, according to Russian custom, almost does not work) and the European Union recently also adopted a similar law.
The e-book market was a commercial failure until today, but not because readers chose freedom, but because e-books were unattractive for other reasons — for example, because reading from a computer screen is less pleasant than from paper. We can not rely on the fact that this luck will protect us in the future: the next attempt to promote e-books will use "electronic paper" - book-like objects that can display encrypted, limited books. If this paper-like surface turns out to be noticeably more attractive than today's screens, we will have to actively defend our freedom in order not to lose it. In the meantime, e-books penetrate certain niches:The University of New York and other dental schools are forcing their students to buy textbooks in the form of similar limited e-books.
But all this is not enough for media companies. In 2001, Senator Hollings (sponsored by Disney) proposed a bill called Security Systems Standards and Certification Act (SSSCA) [1], which would force all computers (and other digital recording and reproducing devices) to include a from copying. This is their ultimate goal, but as a first step, a ban on devices receiving HDTV signals is proposed if they are not designed to prevent the public from “interfering in their work” (that is, adapting them for their needs). Since free software is software that can be modified for the first time, we encounter a bill that explicitly prohibits the use of free software for certain work ( note:when this article was written the way to "solve" this problem, the applied TiVo was not yet known). No doubt other bans will be offered over time. If the FCC accepts the proposal of existing projects, such as GNU Radio, will be under censorship ( note: the Supreme Court ruled that the FCC unlawfully made this demand - but not because the ban contradicts the US Constitution or some other law, but because that the FCC has the right to decide only matters relating to the air, which can or cannot be done with data that is no longer on the air (Congress decides).
Blocking these bills requires political action [2].
Finding the right balance
What is the right way to make a copyright policy? If copyright is a deal in the interests of the people, it must serve the people first. The duty of the government when it sells people's freedom is to sell the minimum amount of freedom and as expensive as possible. At the very least, we should cut off all these extensions of copyright as much as possible without significantly reducing the number of works.
However, we can not determine this price by auction, as is done for projects for the construction of bridges, so how do we find it?
One possible approach is to gradually reduce the privileges of the authors and observe the results. Having seen the results - when and if a measurable decrease in the quantity and quality of the works created occurs - we will be able to understand how much copyright is really needed in order to achieve a goal useful to the people. We have to judge this by the result of observations, and not by the stories of the publishers about what can happen, because they have all the possible reasons to make exaggerated horrible predictions if their rights are reduced even a jot.
Copyright includes several independent dimensions, each of which can be changed independently. After we reach the necessary minimum in one dimension, we still have opportunities to reduce other dimensions while maintaining the desired level of quality and quantity of publications.
One of the important dimensions of copyright is its duration, which today is on the order of a century. Reducing the monopoly to ten years from the date of publication will be a good first step. Other aspects of the author’s monopoly, such as creating new works of authorship on the basis of a work, may last longer.
Why do I need to count from the moment of publication? Because the copyright to unpublished works does not directly restrict the freedom of readers: whether we have the right to copy something or not is a rhetorical question in the case when we do not have copies yet. Therefore, giving the authors the right more time so that they can calmly negotiate with publishers does not harm anyone. Authors (who usually own the copyright before publication) will very rarely postpone the publication time just to delay the end of this period.
Why ten years? Because it is a safe proposition, we can be confident from practical experience that this reduction will have little effect on the viability of today's typography. In most cases, regardless of the type and genre of the work, successful works bring tangible profits only for the first few years, and even successful works disappear from sale, as a rule, before 10 years. Even for systemically important works, in which the “life” period is measured for decades, this period will be sufficient: new, revised, publications are published regularly and many readers will prefer a new edition, for which copying there are still limitations to the 10-year edition, which can be copied freely.
Ten years, of course, is longer than necessary - after it “takes root” we can try further cuts. At a copyright stand, at a literary convention, where I offered one of the famous fantasy authors for ten years, I protested vigorously and said that everything that is more than five years is too much ( note: as we know, RMS is practically absent sense of humor and, possibly, the indicated author just wanted to fool around, but they didn’t understand his “joke” - well, sometimes jokes are punishable, we will assume that the “famous author” really said what he thought).
But we are not obliged to use the same period of time for all types of work. Maintaining the absolute uniformity of copyright policy is not certainly something that is beneficial to the interests of the public and copyright already includes many exceptions for specific types of use of certain types of works. It would be utter madness to pay for a project of any road at a price that is necessary for the implementation of the most difficult projects in the most expensive parts of the country — just as strangely, “paying” for all kinds of arts is the highest price in terms of the freedom that any one can demand view.
So it is quite possible that novels, dictionaries, computer programs, songs, symphonies and films should have different copyright terms, so that we can reduce this period to the time that is really necessary in order to stimulate the creation of works of this kind. Maybe films longer than one hour may require the extension of this period to twenty years in order to recoup the huge costs that are required to create them. In my own field, in the field of computer programming, three years will suffice because usually new versions are released more than once every three years ( note: the version of Windows XP Service Pack 2 came out more than three years ago - but this was rather because there was no initiative release Service Pack 3, if it were - it would have already been released).
Another dimension of copyright is the fair use (fair use) right: some ways to reproduce a published work (in whole or in part) that are legally possible even during the term of copyright. A natural step in reducing the scope of copyright is the resolution of episodic private limited non-commercial copying and distribution to private individuals. This will limit copyright interference with people's privacy, but will have little impact on the sale of published works (however additional steps may be required to ensure that “cover licenses” cannot be used to replace copyright in such cases). The history of Napster shows that we must also allow non-commercial exact copying by the common people:when such a large percentage of the population wants to copy and share and discover so much benefit in it, only draconian methods can stop them and the people deserve what they want.
For short stories and in general for works that are used for entertainment, non-commercial exact reproduction without changes may be sufficient freedom for readers. The computer programs used to obtain the result (that is, to do something concrete with their help) call for additional freedoms beyond this, including the right to publish an improved version. See “Free Software Definition,” on this site, for an explanation of what freedoms and why software users should have. However, in this case, the provision of appropriate freedoms only two or three years after the publication of the program may be a completely acceptable compromise.
Such changes may lead to copyright agreement that people want to use digital technology for copying. No doubt, publishers will say that such offers are “unbalanced”; they may start to threaten to take their pebbles and go home, but few of them will do it in practice, because the game will actually remain profitable and this will be the only game in the city.
While we are considering reductions in the scope of copyright, we should pay particular attention to the fact that media companies do not limit themselves to simply replacing the law with individual licensing agreements. May be needed
This article differs from others in that it does not start with copyright law (the typical erroneous approach of lawyers), but ends with it, but does not ignore it (the typical erroneous approach of “freeloaders” inclined to assert that the sole purpose of the existence of copyright is the corporate superprofits and therefore copyright does not deserve consideration at all).
It shows that copyright is a necessary and useful thing, but it should not be compared with inalienable rights such as the right to own property, but rather with production-sharing agreements when the company temporarily transfers the rights to something that absolutely belongs to it (in with PSA - the content of the earth's interior, in the case of copyright - the freedom of citizens) in exchange for what it considers useful for itself (money - in the case of PSA, books / music / films / programs / etc - in the case of copyright ) because he does not own the means of production VA (for the extraction of minerals need a special technique for the creation of works of art - talent). The main content of the article is an explanation of “how we came to such a life,” when the agreement begins to resemble the story of the notorious “school portal” (that is, we give up a lot of rights for many decades, and in return we get a certain amount of pop and tabloid literature in mainly).
')
So article
Something strange and dangerous is happening now with copyright. According to the American Constitution, copyright exists for the benefit of consumers — those who read books, listen to music, or use software — and not at all in the name of publishers or authors. However, while there is an increasing tendency among people to reject and not abide by the restrictions that the copyright law imposes on them <for their own good> the US government adds all new restrictions and tries to intimidate people with more terrible punishments.
How did it happen that copyright law began to impose things almost diametrically opposed to its original purpose? And how can we change it so that it begins to conform to its original purpose? In order to understand this, we will have to turn to the sources of US copyright laws: the US Constitution.
Copyright in the US Constitution
When the US Constitution was first created, the idea that the authors have the exclusive right to control their creations was proposed - and rejected. The founders of our country ( note: Stallman is an American, so here we are talking about America) accepted another suggestion: copyright is not a natural right that belongs to the authors, but an artificial construction that gives them certain privileges in the name of progress. The US Constitution assigns the task of writing copyright law to the US Congress in the following paragraph (Article I, Section 8):
[The Congress is competent] to promote the development of science and useful crafts, securing for a certain period of time authors and inventors exclusive rights to their writings and discoveries.
The Supreme Court has repeatedly affirmed that promoting progress should help users of copyrighted works. For example, in the case of Fox Film v. Doyal, the court writes:
The only interest of the United States and the main goal in creating a monopoly (we are talking about the monopoly created by copyright laws) lies in receiving benefits for the people, derived from the works of the authors.
This fundamental decision explains why the US Constitution does not require copyright, but only allows its creation as a possible option - and why it should act "for a limited time." If copyright were a natural right, something that authors get because they deserve it, nothing could justify the termination of these rights after a certain period of time, no more than an absurd proposal to nationalize someone's home after a certain time. from the date of construction.
"Copyright Deal"
Copyright works by granting certain privileges and therefore benefits to publishers and authors; however, it does not do it for their good. Instead, it exists to change their behavior: to create an incentive for authors to write more and publish more. In essence, the government exchanges the natural rights of citizens (for the sake of the people) as part of a deal that aims to give people more published works. Law scholars call this a “copyright transaction.” Approximately like buying an airport or highway for taxpayers' money - except that in this case the government spends freedom, not money.
But is this deal good in its present form for the people? Many deals are possible - how to choose the best one? The whole strategy embedded in copyright law is the result of the answer to this question. If we misunderstand the question, we will most likely choose the wrong strategy.
The US Constitution authorizes the transfer of copyright to authors. But in practice, authors usually transfer their rights to publishers — because publishers usually use these rights, not the authors directly (although authors may get a small piece). Therefore, as a rule, publishers, and not authors, advocate an increase in the rights of authors. In order to better reflect the reality of copyright, rather than the myths relating to it, in this article we will refer to publishers, not authors, as copyright holders. She also calls consumers “readers,” although the use of copyright works may not be reading, because “users” are something remote and abstract.
First mistake: “keeping balance”
The “copyright transaction” puts the people in the first place: the benefit for the reading people is, in fact, the ultimate goal, the privileges of the publishers are just a means to achieve this goal. The interests of readers and publishers are even closely incomparable in this equation in importance. The first mistake in misinterpreting a copyright assignment is that publishers' interests rise to the level of the interests of readers.
It is often said that the US copyright law is designed to “balance” the interests of publishers and readers. Those who pose the question in this way often say that this is a simple reformulation of the basic position recorded in the US Constitution - in other words, this is the question of the “copyright transaction”.
But the two formulations are very far from being equivalent - they differ conceptually and differ in the consequences. The concept of balance assumes that the interests of the readers and the interests of the publishers differ only quantitatively, only in how much they have “different weights” and in that they limit different actions. The term “interested parties” is often used to give a question such a form — it assumes that all sides of a strategy are equally important. This point of view runs counter to the original position of the fundamental difference between the interests of publishers and readers, which was the basis of the “copyright transaction”.
The consequences of this change extend unusually broadly because the basic protection of the people in the “copyright transaction” —the idea that the authors ’privileges can be justified solely and only by the interests of the readers, but never under any circumstances can be justified by the interests of the publishers — is completely denied this interpretation "Balance". Since the interests of publishers can now be considered as an end in themselves, they can justify the granting of certain privileges - in other words, the concept of balance says that privileges can be given in the name of anyone other than the people.
From a practical point of view, the concept of "balance" completely reverses the burden of justification for changes in copyright. The original “copyright transaction” puts publishers in front of the need to convince readers to abandon the use of certain freedoms. The concept of “balance” actually puts everything “upside down,” since there is usually no doubt that publishers will benefit from additional privileges — so if they cannot prove that the harm to readers of these privileges outweighs this benefit, we have to recognize that publishers should get virtually everything they ask.
Since the idea of ​​“balancing” the interests of publishers and readers goes against the fact that the superiority of the interests of readers over the interests of publishers is fundamentally we have to reject it.
Balance what with what?
When the government buys something for the people, it acts in the name of this people, its sacred duty is to provide the best possible deal — the best for the people, not for the other participant in the deal.
For example, when the government signs a contract with a company for the construction of a road, the government seeks to spend the least possible amount of public money. Governments use auctions to lower prices ( note : we all know perfectly well how such auctions end in Russia, but the initial idea, even in this country, is still a reduction in costs).
In practice, the price can not be zero, because companies will not offer such a low price. Although they do not deserve special privileges, they can enjoy the usual rights of a free society, including the right to reject an unfavorable contract - even the cheapest contract will be expensive enough to bring money to the relevant firm. So we really have some form of balance. However, this is not a balance between the interests of the two parties, each of whom has the right to special consideration. This is a balance between public interest and market forces. The government is trying to get tax-paying car owners the best deal it can get in the context of a free society and a free market.
In a “copyright transaction,” the government pays our freedom, not our money. Freedom is a more valuable thing than money, so the responsibility of the government to spend our freedom wisely and economically is much higher than in the case when only money is at stake. Governments should never put the interests of the people on a par with the interests of publishers.
Not "balance", but "compromise"
The idea of ​​a balance between the interests of readers and publishers is the wrong approach to the “copyright transaction”, but there are indeed two interests in this transaction that need to be compared: two reader interests. Readers are interested in the free use of published works, and, depending on the specific conditions, they may be interested in supporting the creation of new published works.
The word “balance” in discussing copyright issues was firmly associated with the idea of ​​a balance between the interests of readers and publishers. Therefore, the use of the word “balance” when discussing these two interests of the people will lead to confusion - we need a new word.
In principle, when someone pursues two goals that conflict and therefore cannot be achieved at the same time, we call it a “compromise.” Therefore, instead of discussing “achieving the right balance” between the interests of the two parties, we should talk about “finding the right compromise between spending freedom (new music, music, etc.) and preserving it”.
The second mistake: “product maximization”
The second mistake in the strategy concerning copyright is to adopt a maximization approach — not just an increase — in the number of published works. The erroneous concept of “balancing interests” equated the interests of publishers and readers; This second mistake raises the interests of publishers to a level far above the interests of readers.
When we buy something, we rarely buy everything that the seller has and also the most expensive item in stock. Instead, we try to save our capital for future purchases, buying only as much as we need and choosing a rather good model, and not the most expensive one. The principle of diminishing returns tells us that spending all our money on a single purchase is unlikely to be a reasonable allocation of resources - we usually prefer to save some of the money for future purchases.
The principle of diminishing returns applies to copyright as much as any other purchase. We must first part with the freedoms that we need the least, but which would be especially appreciated by publishers. While we will part with more and more freedoms, we will notice that every next exchange causes us to part with ever more valuable freedoms and brings less and less satisfaction in the form of increased literary activity. Long before the increase reaches zero, we can say that this increase is no longer worth the increase in price - after that we get a deal that leads to an increase in the number of publications, but not to the maximum ( note perev .: Stallman forgot about another phenomenon: increase total number of publications does not mean an increase in the number of available publications - most of the books, music recordings and software are now impossible to buy, so you can confidently say that by spending less freedom, we would get more actually available items. additations).
Accepting the goal of maximizing the number of publications immediately denies all other, wiser, more profitable deals - this principle requires that the people give up virtually all freedoms regarding the use of published materials only to get a little more publications ( note: even non-publications , and promises of publications - at the end of the process, acquiring one new one, we lose 10 old ones).
Maximizing rhetoric
In practice, the goal of maximizing publications regardless of price for freedom is supported by widespread statements that state that copying by people is illegal, dishonest, and in principle wrong. For example, publishers call people who make copies “pirates”, a dirty term invented to equate people who share information with people close to people attacking ships (this dirty term was previously used by authors in relation to publishers who found loopholes in contracts and printed additional circulations without coordination with the authors; the modern use of the term by publishers is almost the exact opposite). Such statements directly reject the constitutional foundations of copyright putting themselves in the place of the unquestionable principles of the American legal system.
“Pirate” flattery is usually taken at face value because it so permeates all media that people do not realize that this is a radical change in the fundamentals (so it’s not surprising that all other points of view are hushed up). It is effective, because if copying by the people is fundamentally illegal, we can never even ask why we are deprived of this right. In other words, when people ask why publishers should not get even more privileges, the most fundamental and important reason of all - we want to copy - turns out to be disqualified beforehand.
This leaves us with no counter-arguments against increasing the privileges of publishers other than discussing secondary issues. That is why the opposition, which seeks to limit the rights of authors and publishers, almost exclusively discusses secondary issues without even risking raising the main question: why should we, in fact, give up our freedom to distribute copies.
From a practical point of view, the goal of maximization allows publishers to use arguments like "a certain activity leads to a decrease in sales - or we think that it can lead - so it leads to a decrease in the number of publications by an incomprehensible amount and therefore should be prohibited." They are trying to lead us to the absurd conclusion that the benefit for the people is determined by the money that the publishers receive - which is good for Big Press is good for the USA.
Third mistake: maximizing publisher rights
After publishers have agreed to a strategy to maximize the release of publications at any cost, the next natural step is that it requires the transfer of all possible rights to them - so copyright begins to include every conceivable use of the work or legitimizing weird things like “wrapper licenses” .This goal, which includes abandoning the concepts of “fair use (fair use)” and “right of first sale”, is pushed at all possible levels of government from states to international organizations.
This step is fundamentally wrong because it ultimately prevents the creation of new interesting works. For example, Shakespeare borrowed elements of the script of some plays from other plays published a few decades before, so that if modern copyright existed, his creations would be illegal.
Even if we wanted to achieve the maximum possible publication of publications (regardless of the price to the public), maximizing the rights of publishers is a bad way to achieve this. As a means of promoting progress, it is doomed to failure.
The results of the three errors The
current trend in the field of copyright is the granting of ever wider rights to publishers for ever longer periods of time. The concept of copyright (or rather, what remains of it after its threefold erroneous re-adaptation) rarely gives reason to say no. Lawmakers talk about copyright benefits to the public, but in reality they simply give publishers the rights they ask for.
For example, this is what Senator Hatch said when he introduced the bill S. 483 in 1995, which extended the term of copyright by 20 years:
I believe that we are now at such a point regarding the existing term to adequately protect the interests of the authors and the related question is enough Does the defense motivate the creation of new works during this period?
This bill expanded the copyright of already published works written since 1920. This change was a clean gift for publishers with no potential benefits to the public, since there is no way to retroactively increase the number of books published then. However, this handout cost the public freedom, which has a price today - the ability to distribute books written at that time.
This bill also extended the deadline for not yet written works. For works made to order, copyright will last 95 years instead of 75 years. Theoretically, this increases the initiative of writing new works, but any publisher requiring such an increase would have to include estimates of the estimated costs and revenues for the period up to 2075 inclusive.
Needless to say, the Congress did not argue with the arguments of publishers: a law extending the term of copyright was adopted in 1998. It was named the “Sonny Bono Copyright Term Extension Act”, named after one of its sponsors, who died this year. His widow, who sat in Congress before the end of his term, made the following statement:
In fact, Sonny wanted the copyright term to be unlimited. My advisors told me that such a change would be contrary to the Constitution. I urge you all to work with me to strengthen copyright in all directions available to us. As you know, we still have an offer from Jack Valenti to limit this period to “infinity minus one day”. Perhaps the Committee should consider this proposal in the next Congress.
The Supreme Court agreed to consider the constitutionality of a retroactive extension of the term of copyright, because this extension can in no way serve the goals of “promoting the development of science and useful crafts” written in the US Constitution ( note:The Supreme Court ruled that the assignment of copyright terms is the prerogative of Congress and the court is not in a position to decide whether a retroactive expansion will contribute to progress or not, but since in 1790, 1831, 1909 and 1976 retroactive extension of terms did not cause protests, apparently this time it is not a problem).
Another law passed in 1996 made it a criminal offense to create a sufficiently large number of copies of a published work, even if you later distributed them to your friends and acquaintances simply “out of spiritual kindness”. Previously, it was not even an administrative offense.
Worse, the Digital Millennium Copyright Act (DMCA) was designed to bring copy protection back into circulation (which computer users generally cannot tolerate) by making it an offense to crack such protection - or even to publish information on how to do it. This law should be called «Domination by Media Corporations Act» ( ca. Perevi:. Law on dominance of media corporations) because it actually gives publishers the right to create their own copyright. He says that they can impose any restrictions on the use of the publication, and these restrictions acquire the status of a law if the publication contains at least some encryption or perhaps a license manager that forces you to comply with these restrictions.
One of the arguments for the adoption of this bill was the need to amend the laws relating to copyright and bring them in line with the requirements of recently signed international agreements. This agreement was lobbied by the World Intellectual Property Property Organization (WIPO), the organization in which the dominant role is taken by the lobby of the owners of copyright and patents, under pressure from the Clinton Administration; since this agreement only extends copyright ( commentary: giving nothing in return) it seems incredible that its adoption serves the interests of the people. In any case, the bill goes far beyond what was required by the agreement.
Libraries were one of the loudest opponents of the bill, especially in the area of ​​restricting blocking “fair use (fair use)”. How did the publishers respond? The former spokesman for Pat Schroede (now a lobbyist for the Association of American Publishers) said that publishers “cannot live by asking [libraries].” As librarians asked only to preserve part of the status quo, the question arises: how did publishers manage to survive before?
Congressman Barney Frank, in a meeting with me and other opponents of the bill, showed to what extent the disregard of the constitutional approach to copyright came. He said that the new rules, supported by criminal penalties, must be introduced urgently, as the “film industry is excited,” as well as the “music industry” and other “industries”. I asked him "but what about the interests of the people?". His answer says a lot: “Why are you talking about the interests of the people? These resourceful people should not lose their rights for the sake of the interests of the people! ” The industry was identified with the “inventive people” that it hires, the “copyright” was interpreted based only on the name, and the US Constitution was turned upside down.
The DMCA entered into force in 1998. In the form in which the law was passed, he says that the right to “fair use (fair use)” remains nominally legal, but allows publishers to declare all the programs and all the equipment that would allow them to be used illegally. Practically the right to “fair use (fair use)” was outlawed.
Based on this law, the film industry has introduced censorship of free software for reading and playing DVDs, and even just information that allows you to play DVDs. In April 2001, Professor Edward Felten of Princeton University was intimidated by court threats to the state of recall of his scientific work, which described the facts established by him concerning the proposed encryption system, which would have been designed to limit access to musical records.
We are already seeing the emergence of electronic books that rob traditional readers of their freedoms - for example, the freedom to borrow a book to a friend, or the freedom to resell a book in a store, the freedom to take it for a while in the library, the freedom to save incognito when buying (without leaving your name in the corporate database) data), even the freedom to re-read the same book! Encrypted e-books usually limit all these actions - you can read them only with the help of special secret software, which is designed to limit you.
I will never buy one of these encrypted, restricted e-books, and I hope you also reject them. If the e-book does not give you the freedoms provided by a regular book, do not buy it!
Anyone who releases software independently that can read limited e-books can be prosecuted. The Russian programmer, Dmitry Sklyarov, was arrested in 2001 when he visited the US in order to speak at the conference, because he wrote a similar program in Russia, where it was legal. Now Russia is preparing a law that would prohibit this activity ( note: now this law has already entered into force, but, according to Russian custom, almost does not work) and the European Union recently also adopted a similar law.
The e-book market was a commercial failure until today, but not because readers chose freedom, but because e-books were unattractive for other reasons — for example, because reading from a computer screen is less pleasant than from paper. We can not rely on the fact that this luck will protect us in the future: the next attempt to promote e-books will use "electronic paper" - book-like objects that can display encrypted, limited books. If this paper-like surface turns out to be noticeably more attractive than today's screens, we will have to actively defend our freedom in order not to lose it. In the meantime, e-books penetrate certain niches:The University of New York and other dental schools are forcing their students to buy textbooks in the form of similar limited e-books.
But all this is not enough for media companies. In 2001, Senator Hollings (sponsored by Disney) proposed a bill called Security Systems Standards and Certification Act (SSSCA) [1], which would force all computers (and other digital recording and reproducing devices) to include a from copying. This is their ultimate goal, but as a first step, a ban on devices receiving HDTV signals is proposed if they are not designed to prevent the public from “interfering in their work” (that is, adapting them for their needs). Since free software is software that can be modified for the first time, we encounter a bill that explicitly prohibits the use of free software for certain work ( note:when this article was written the way to "solve" this problem, the applied TiVo was not yet known). No doubt other bans will be offered over time. If the FCC accepts the proposal of existing projects, such as GNU Radio, will be under censorship ( note: the Supreme Court ruled that the FCC unlawfully made this demand - but not because the ban contradicts the US Constitution or some other law, but because that the FCC has the right to decide only matters relating to the air, which can or cannot be done with data that is no longer on the air (Congress decides).
Blocking these bills requires political action [2].
Finding the right balance
What is the right way to make a copyright policy? If copyright is a deal in the interests of the people, it must serve the people first. The duty of the government when it sells people's freedom is to sell the minimum amount of freedom and as expensive as possible. At the very least, we should cut off all these extensions of copyright as much as possible without significantly reducing the number of works.
However, we can not determine this price by auction, as is done for projects for the construction of bridges, so how do we find it?
One possible approach is to gradually reduce the privileges of the authors and observe the results. Having seen the results - when and if a measurable decrease in the quantity and quality of the works created occurs - we will be able to understand how much copyright is really needed in order to achieve a goal useful to the people. We have to judge this by the result of observations, and not by the stories of the publishers about what can happen, because they have all the possible reasons to make exaggerated horrible predictions if their rights are reduced even a jot.
Copyright includes several independent dimensions, each of which can be changed independently. After we reach the necessary minimum in one dimension, we still have opportunities to reduce other dimensions while maintaining the desired level of quality and quantity of publications.
One of the important dimensions of copyright is its duration, which today is on the order of a century. Reducing the monopoly to ten years from the date of publication will be a good first step. Other aspects of the author’s monopoly, such as creating new works of authorship on the basis of a work, may last longer.
Why do I need to count from the moment of publication? Because the copyright to unpublished works does not directly restrict the freedom of readers: whether we have the right to copy something or not is a rhetorical question in the case when we do not have copies yet. Therefore, giving the authors the right more time so that they can calmly negotiate with publishers does not harm anyone. Authors (who usually own the copyright before publication) will very rarely postpone the publication time just to delay the end of this period.
Why ten years? Because it is a safe proposition, we can be confident from practical experience that this reduction will have little effect on the viability of today's typography. In most cases, regardless of the type and genre of the work, successful works bring tangible profits only for the first few years, and even successful works disappear from sale, as a rule, before 10 years. Even for systemically important works, in which the “life” period is measured for decades, this period will be sufficient: new, revised, publications are published regularly and many readers will prefer a new edition, for which copying there are still limitations to the 10-year edition, which can be copied freely.
Ten years, of course, is longer than necessary - after it “takes root” we can try further cuts. At a copyright stand, at a literary convention, where I offered one of the famous fantasy authors for ten years, I protested vigorously and said that everything that is more than five years is too much ( note: as we know, RMS is practically absent sense of humor and, possibly, the indicated author just wanted to fool around, but they didn’t understand his “joke” - well, sometimes jokes are punishable, we will assume that the “famous author” really said what he thought).
But we are not obliged to use the same period of time for all types of work. Maintaining the absolute uniformity of copyright policy is not certainly something that is beneficial to the interests of the public and copyright already includes many exceptions for specific types of use of certain types of works. It would be utter madness to pay for a project of any road at a price that is necessary for the implementation of the most difficult projects in the most expensive parts of the country — just as strangely, “paying” for all kinds of arts is the highest price in terms of the freedom that any one can demand view.
So it is quite possible that novels, dictionaries, computer programs, songs, symphonies and films should have different copyright terms, so that we can reduce this period to the time that is really necessary in order to stimulate the creation of works of this kind. Maybe films longer than one hour may require the extension of this period to twenty years in order to recoup the huge costs that are required to create them. In my own field, in the field of computer programming, three years will suffice because usually new versions are released more than once every three years ( note: the version of Windows XP Service Pack 2 came out more than three years ago - but this was rather because there was no initiative release Service Pack 3, if it were - it would have already been released).
Another dimension of copyright is the fair use (fair use) right: some ways to reproduce a published work (in whole or in part) that are legally possible even during the term of copyright. A natural step in reducing the scope of copyright is the resolution of episodic private limited non-commercial copying and distribution to private individuals. This will limit copyright interference with people's privacy, but will have little impact on the sale of published works (however additional steps may be required to ensure that “cover licenses” cannot be used to replace copyright in such cases). The history of Napster shows that we must also allow non-commercial exact copying by the common people:when such a large percentage of the population wants to copy and share and discover so much benefit in it, only draconian methods can stop them and the people deserve what they want.
For short stories and in general for works that are used for entertainment, non-commercial exact reproduction without changes may be sufficient freedom for readers. The computer programs used to obtain the result (that is, to do something concrete with their help) call for additional freedoms beyond this, including the right to publish an improved version. See “Free Software Definition,” on this site, for an explanation of what freedoms and why software users should have. However, in this case, the provision of appropriate freedoms only two or three years after the publication of the program may be a completely acceptable compromise.
Such changes may lead to copyright agreement that people want to use digital technology for copying. No doubt, publishers will say that such offers are “unbalanced”; they may start to threaten to take their pebbles and go home, but few of them will do it in practice, because the game will actually remain profitable and this will be the only game in the city.
While we are considering reductions in the scope of copyright, we should pay particular attention to the fact that media companies do not limit themselves to simply replacing the law with individual licensing agreements. May be needed
Source: https://habr.com/ru/post/31428/
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