EFF’s File-Sharing 411 Details and Sticky Copyrights
The always impressive bIPlog has some details on Fred von Lohman’s talks yesterday at Berkeley. I attended both events and find Mary Hodder’s summary an excellent recap if you missed it.
Fred did spark a thought in me, and I wrote it down during the afternoon talk:
“Copyright is a system fundamentally designed to deprive artists of the rights to their creations.” (That’s got some intentional shock value, since most assume its purpose is just the opposite. But I continued…)
“From copyright’s inception in the Statute of Anne, copyrights have been assignable to others. They are freely assignable so that distributors and publishers can take them.”
It’s just a history lesson and a wake-up call. Publishers pushed for the Statute of Anne and the establishment of assignable copyrights so that they could demand that authors sign away their rights to them! Their hope was to thereby create a monopoly in the publishing industry.
Fast forward to today. It’s still going on! Just about every record contract that a musician is suckered into takes away all her/his rights to their own creations. The record company owns all the rights to the artist’s art. They are just following in the long tradition of their monopolistic forebears.
But now think about it. If the more noble ideal of copyright’s purpose were truly pursued, we would be hoping to “promote the progress of science and useful arts.” Now who are the artists in the following list: Vivendi Universal or Andrea Bocelli? Universal Music Group or B.B. King? This is easy. So then, if we want to help promote the artist’s work, then who do we want the benefit of copyright to flow to? C’mon now think hard… You can do it… That’s right! The artist! Well then, why do we have a system where the moment the artist’s pen leaves the page and the moment the artist takes a step back from the microphone, their copyrights have all been assigned over to some suits who are not artists, don’t create anything we hoped to promote in Article I Section 8 of the Constitution, and who are sucking the lifeblood right out of the artists we hoped to promote? Doesn’t make much sense. Does it?
So here’s a solution to consider: Copyrights should not be assignable to others. (I call this a Sticky Copyright, because it sticks to the original creator and stays there for its duration.) A copyright owner could certainly still contract with someone else to physically make the copies for him, and could certainly contract with someone to distribute those copies, but the copyright would always remain with the copyright owner. Once we have a system where the copyrights stick to creators in this way, we might also think twice about a Sticky Copyright persisting after that creator’s death. That wouldn’t make much sense either, would it? [Footnote 1]
The biggest problem I see with the solution above is that folks like the Free Software Foundation thrive on having others assign their copyrights to them. For big collaborative projects like they run it might make a huge impact on them if they can’t round up the rights in one place.
I think this too could be handled with contracts. I can be a copyright holder and still sign a contract with the FSF that says I give you the right to make copies of my code for me, to distribute those copies, and even to make modifications to my code on my behalf. But I still retain the copyright on it. The nice thing about this would be that only the artist could bring a lawsuit for infringement, not the RIAA or some other proxy copyright holder. But it cuts both ways. The other big point the FSF has in getting these assignments is to make it easier for a single entity, the FSF, to sue someone who violates the GPL. The FSF can do it directly and doesn’t need permission from 200 people.
I’m not sure that’s decisive though. If my copyrighted code contribution is 300 lines of a 10,000 line GPL’d program, and someone is violating the GPL, then among the things they are doing is violating my copyright. I don’t know why if there are 30 contributors to a piece of software that all 30 of them can’t bring distinct suits against an infringer to seek damages for infringing the part of the program that they hold the copyright on. It might clog the court if we really ran 30 cases, but in practice these suits are all going to get joined together and we just let the courts and the lawyers do later what the FSF is trying to do now in advance. I don’t know why that wouldn’t work.
But then there’s the more general objection to Sticky Copyrights that goes: “If it’s my right, then I ought to be able to do whatever I want with it, including sell it, give it away, or forever disavow it.” My response would be: that’s not always true of rights. For instance, I have the right to vote, but I’m not allowed to sell that right to someone else who’d be willing to pay for it. So not every right is transferable. And in this case, I just might be convincing myself that the true intent of the Constitution’s framers and the truly best thing for creators is Sticky Copyright. Indeed, it might even be the case, without anyone realizing it, that anything other than a Sticky Copyright is downright unconstitutional. Interesting.
[Footnote 1]: I realize this is a fine distinction. A reasonable question would be: If I can contract out my right to copy to someone else, how is that supposed to be different from assignment of my copyright?
Answer 1) The contract I’m thinking of is typically going to be limited in time and for a specific number of copies. (Think of a book author here. She wants 1000 copies by October. You make any more after that and you’re infringing.) But an assignment would be permanent and for unlimited copies.
Answer 2) The contracted right to copy would not normally flow downstream. That is, if I assign my copyright to someone else, and assignment is allowed, then they in turn could assign it to someone else, and so on. It’s a hot potato. But if I contract with you to make me 1000 copies of my latest book, I can include a clause that says: “you cannot subcontract this work or purport to give others the right to make copies of my book.” But then the objection shifts to: Doesn’t this break the GPL? Nothing could get past the first distribution. Answer: No. I can contract out my copying work in lots of ways. One such way is to allow sub-contracting rather than forbidding it. And when I distribute a program to you under the GPL, I can say, I’m contracting with you to make at least one copy of this on my behalf. You too can sub-contract this work out to others by having them make at least one of the copies I asked you to make. And so on forever. In a strict technical sense then, even the nth person in a chain of distribution would be just subcontracting out some copying work that I asked the first member of the chain to do. (Wacky, eh?) More likely though, given that many programs are distributed from a single website run by the authors, the GPL in such a case is comparable to a book author who asks 1000 publishers to make her 1 copy of her book. She still ends up with 1000 copies in the wild, but she just contracted out the copying to lots of individuals. Now, I also happen to know that the FSF doesn’t believe the GPL is a contract and is quite adamant about this, but that’s a whole other ball of wax not worth getting into when I’m just thinking out loud here. The last dangling problems here could be a legal complaint about lack of consideration for such a contract and a question of just how many copies I asked the original person to make. First the consideration is like so: I’d like you to make at least one copy of this program. In return I ask only this. If you subcontract out this copying work I’m asking you to do, then you must allow your subcontractor to also subcontract (and the terms of that subcontract must be identical to the terms I offered you.) If you agree to that restriction, then that should be consideration. Second, I’m fairly sure I do not have to specify how many copies I want just to get a binding contract. People often contract for “as much as I need” or “as much as you produce” and so on. So, in this case I’m contracting for you to make “at least one copy and as many more as you produce (either yourself or through subcontractors).” You’d probably add in such a GPL’d software case: “Please don’t deliver the verbatim copies to me. I’m just glad to know you’re out there making them.” (Someone who wanted to learn of modifications could change this to require delivery of modified copies, but now we’re not talking about the GPL.)
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