Copyright versus Community in the Age of Computer Networks

This is a transcription from an audio recording, prepared by Douglas
Carnall, July 2000.

Mr Stallman arrives a few minutes after the appointed hour of commencement of his talk to address a hushed and respectful audience. He speaks with great precision and almost no hesitation in a pronounced Boston accent.

RMS: This is made for someone who wears a strangler.

[indicates clip-on microphone for lecture theatre amplification system]

I don't wear stranglers, so there is no place for it to go.

[clips it to his T-shirt]

Me: Are you OK with the recording?

RMS: Yes! [testy] How many people have to ask me?

Well, I'm supposed to speak today

[long pause]

about copyright versus community. This is too loud.

[indicates clip-on microphone]

What can I do?

Let's see… there's no volume control…

[finds volume control on radio microphone box]

this seems better

OK. Copyright versus community in the age of computer networks. The principles of ethics can't change. They are the same for all situations, but to apply them to any question or situation you have to look at the facts of the situation to compare alternatives, you have to see what their consequences are, a change in technology never changes the principles of ethics, but a change in technology can alter the consequences of the same choices, so it can make a difference for the outcome of the question, and that has happened in the area of copyright law. We have a situation where changes in technology have affected the ethical factors that weigh on decisions about copyright law and change the right policy for society.

Laws that in the past may have been a good idea, now are harmful because they are in a different context. But to explain this, I should go back to the beginning to the ancient world where books were made by writing them out by hand. That was the only way to do it, and anybody who could read could also write a copy of a book. To be sure a slave who spent all day writing copies could probably do it somewhat better than someone who didn't ordinarily do that but it didn't make a tremendous difference. Essentially, anyone who could read, could copy books, about as well as they could be copied in any fashion.

In the ancient world, there wasn't the sharp distinction between authorship and copying that there tends to be today.

There was a continuum. On the one hand you might have somebody, say, writing a play. Then you might have, on the other extreme, just somebody making copies of books, but in between you might have say, somebody, who say, copies part of a book, but writes some words of his own, or writing a commentary, and this was very common, and definitely respected. Other people would copy some bits from one book, and then some bits from another book, and write something of their own words, and then copy from another book, quoting passages of various lengths from many different works, and then writing some other works to talk about them more, or relate them. And there are many ancient works—now lost—in which part of them survived in these quotations in other books that became more popular than the book that the original quote [came from].

There was a spectrum between writing an original work, and copying. There were many books that were partly copied, but mixed with original writing. I don't believe there was any idea of copyright in the ancient world and it would have been rather difficult to enforce one, because books could be copied by anyone who could read anywhere, anyone who could get some writing materials, and a feather to write with. So, that was a rather clear simple situation.

Later on, printing was developed and printing changed the situation greatly. It provided a much more efficient way to make copies of books, provided that they were all identical. And it required specialised, fairly expensive equipment that an ordinary reader would not have. So in effect it created a situation in which copies could only feasibly be made by specialised businesses, of which the number was not that large. There might have been hundreds of printing presses in a country and hundreds of thousands, or maybe even millions of actually people who could read. So the decrease in the number of places in which copies could be made was tremendous.

Now the idea of copyright developed along with the printing press. I think that there may be… I think I remember reading that Venice, which was a major centre of printing in the 1500s also had a kind of copyright but I can't find that: I couldn't find that reference again. But the system of copyright fitted in naturally with the printing press because it became rare for ordinary readers to make copies. It still happen. People who were very poor or very rich had handmade copies of books. The very rich people did this to show off their wealth: they had beautiful illuminated wealth to show that they could afford this. And poor people still sometimes copied books by hand because they couldn't afford printed copies. As the song goes “Time ain't money when all you got is time.” So some poor people copied books with a pen. But for the most part the books were all made on printing presses by publishers and copyright as a system fitted in very well with the technical system. For one thing it was painless for readers, because the readers weren't going to make copies anyway, except for the very rich ones who could presumably legitimise it, or the very poor ones who were making just individual copies and no one was going to go after them with lawyers. And the system was fairly easy to enforce again because there were only a small number of places where it had to be enforced: only the printing presses, and because of this it didn't require, it didn't involve, a struggle against the public. You didn't find just about everybody trying to copy books and being threatened with arrest for doing it.

And in fact, in addition to not restricting the reader's directly, it didn't cause much of a problem for readers, because it might have added a small fraction to the price of books but it didn't double the price, so that small extra addition to the price was a very small burden for the readers. The actions restricted by copyright were actions that you couldn't do, as an ordinary reader, and therefore, it didn't cause a problem. And because of this there was no need for harsh punishments to convince readers to tolerate it and to obey.

So copyright effectively was an industrial regulation. It restricted publishers and writers but it didn't restrict the general public. It was somewhat like charging a fee for going on a boat ride across the Atlantic. You know, it's easy to collect the fee when people are getting on a boat for weeks or months.

Well, as time went on, printing got more efficient. Eventually even poor people didn't have to bother copying books by hand and the idea sort of got forgotten. I think it's in the 1800s that essentially printing got cheap enough so that essentially everyone could afford printed books, so to some extent the idea of poor people copying books by hand was lost from memory. I heard about this about ten years ago when I started talking about the subject to people.

So originally in England copyright was partly intended as a measure of censorship. People who wanted to publish books were required to get approval from the government but the idea began to change and it a different idea was expressed explicitly in the US constitution. When the US constitution was written there was a proposal that authors should be entitled to a monopoly on copying their books. This idea was rejected. Instead, a different idea of the philosophy of copyright was put into the constitution. The idea that a copyright system could be… well, the idea is that people have the natural right to copy things but copyright as an artificial restriction on copying can be authorised for the sake of promoting progress.

So the system of copyright would have been the same more or less either way, but this was a statement about the purpose which is said to justify copyright. It is explicitly justified as a means to promote progress, not as an entitlement for copyright owners. So the system is meant to modify the behaviour of copyright owners so as to benefit the public. The benefit consists of more books being written and published and this is intended to contribute to the progress of civilisation, to spreading ideas, and as a means to this end… in other words as a means to this end copyright exists. So this also thought of as a bargain between the public and authors; that the public gives up its natural right to make copies of anything in exchange for the progress that is brought about indirectly, by encouraging more people to write.

Now it may seem like an obscure question to ask “What's the purpose of copyright?” But the purpose of any activity is the most important thing for deciding when an activity needs to be changed and how. If you forget about the purpose you are sure to get things wrong, so ever since that decision was made, the authors and especially the publishers most recently have been trying to misrepresent it and sweep it under the rug. There has been a campaign for decades to try to spread the idea that was rejected in the US constitution. The idea that copyright exists as an entitlement for copyright owners. And you can that expressed in almost everything they say about it starting and ending with the word “pirate” which is used to give the impression that making an unauthorised copy is the moral equivalent of attacking a ship and kidnapping or killing the people on board.

So if you look at the statements being made by publishers you find lots of implicit assumptions of this sort which you have to drag into the open and then start questioning.

Recent events and problems

[brightens]

Anyway, as long as the age of the printing press continued, copyright was painless, easy to enforce, and probably a good idea. But the age of the printing press began changing a few decades ago when things like Xerox machines and tape recorders started to be available, and more recently as computer networks have come into use the situation has changed drastically. We are now in a situation technologically more like the ancient world, where anybody who could read something could also make a copy of it that was essentially as good as the best copies anyone could make.

[murmuring in the audience]

A situation now where once again, ordinary readers can make copies themselves. It doesn't have to be done through centralised mass production, as in the printing press. Now this change in technology changes the situation in which copyright law operates. The idea of the bargain was that the public trades away its natural right to make copies, and in exchange gets a benefit. Well, a bargain could be a good one or a bad one. It depends on the worth of what you are giving up. And the worth of what you are getting. In the age of the printing press the public traded away a freedom that it was unable to use.

It's like finding a way of selling shit: what have you got to lose? You've got it on hand anyway, if you get something for it, it can hardly be a bad deal.

[faint laughter]

It's like accepting money for promising not to travel to another star. You're not going to do it anyway

[hearty laughter]

at least not in our lifetime so you might as well, if someone's going to pay you to promise not to travel to another star, you might as well take the deal. But if I presented you with a starship, then you might not think that deal was such a good deal any more. When the thing you used to sell because it was useless, you discover a use for it, then you have to reconsider the desirability of those old deals that used to be advantageous. Typically in a such a situation you decide that “I'm not going to sell all of this any more; I'm going to keep some of it and use it.” So if you were giving up a freedom that you couldn't exercise and now you can exercise it, you probably want to start retaining the right to exercise it at least partially. You might still trade part of the freedom: and there are many alternatives of different bargains which trade parts of the freedom and keep other parts. So, precisely what you want to do requires thought, but in any case you want to reconsider the old bargain, and you probably want to sell less of what you sold in the past.

But the publishers are trying to do exactly the opposite. At exactly the time when the public's interest is to keep part of the freedom to use it, the publishers are passing laws which make us give up more freedom. You see copyright was never intended to be an absolute monopoly on all the uses of a copyright work. It covered some uses and not others, but in recent times the publishers have been pushing to extend it further and further. Ending up most recently with things like the Digital Millennium Copyright Act in the US which they are also trying to turn into a treaty through the World Intellectual Property Organisation which is essentially an organisation representing the owners of copyrights and patents and which works to try to increase their power, and pretends to be doing so in the name of humanity rather than in the name of these particular companies.

Now, what are the consequences when copyright starts restricting activities that ordinary readers can do. Well, for one thing it's no longer an industrial regulation. It becomes an imposition on the public. For another, because of this, you find the public's starting to object to it You know, when it is stopping ordinary people from doing things that are natural in their lives you find ordinary people refusing to obey. Which means that copyright is no longer easy to enforce and that's why you see harsher and harsher punishments being adopted by governments that are basically serving the publishers rather than the public.

Also, you have to question whether a copyright system is still beneficial. Basically, the thing that we have been paying is now valuable for us. Maybe the deal is a bad deal now. So all the things that made technology fit in well with the technology of the printing press make it fit badly with digital information technology. So, instead of like, charging the fee to cross the Atlantic in a boat, it's like charging a fee to cross a street. It's a big nuisance, because people cross the street all along the street, and making them pay is a pain in the neck.

New kinds of copyright

Now what are some of the changes we might want to make in copyright law in order to adapt it to the situation that the public finds itself in? Well the extreme change might be to abolish copyright law but that isn't the only possible choice. There are various situations in which we could reduce the power of copyright without abolishing it entirely because there are various different actions that can be done with a copyright and there are various situations in which you might do them, and each of those is an independent question. Should copyright cover this or not? In addition, there is a question of “How long?”. Copyright used to be much shorter in its period or duration, and it's been extended over and over again in the past fifty years or so and in fact in now appears that the owners of copyrights are planning to keep on extending copyrights so that they will never expire again. The US constitution says that “copyright must exist for a limited time” but the publishers have found a way around this: every twenty years they make copyright twenty years longer, and this way, no copyright will ever expire again. Now a thousand years from now, copyright might last for 1200 years, just basically enough so that copyright on Mickey Mouse can not expire.

Because that's why, people believe that US Congress passed a law to extend copyright for twenty years. Disney was paying them, and paying the President too, with campaign funds of course, to make it lawful. See, if they just gave them cash it would be a crime, but contributing indirectly to campaigns is legal and that's what they do: to buy the legislators. So they passed the Sunny Bono copyright act. Now this is interesting: Sunny Bono was a congressman and a member of the Church of Scientology, which uses copyrights to suppress knowledge of its activities. So they have their pet congressman and they pushed very hard for increased copyright powers.

Anyway, we were fortunate that Sunny Bono died but in his name they passed the Mickey Mouse Copyright Act of 1998 I believe. It's being challenged by the way, on the grounds that, there is a legal case that people hope to go to the Supreme Court and have the extension of old copyrights tossed out. In any case, there are all these different situations and questions where we could reduce the scope of copyright.

So what are some of them? Well, first of all there are various different contexts for copying. There is commercial sale of copies in the stores at one extreme and at the other there is privately making a copy for your friend once in a while, and in between there are other things, like, there's broadcasting on TV or the radio, there's posting it on the website, there's handing it out to all the people in an organisation, and some of these things could be done either commercially or non-commercially. You know, you could imagine a company handing out copies to its staff or you could imagine a school doing it, or some private, non-profit organisation doing it. Different situations, and we don't have to treat them all the same. So one way in we could reclaim the… in general though, the activities that are the most private are those that are most crucial to our freedom and our way of life, whereas the most public and commercial are those that are most useful for providing some sort of income for authors so it's a natural situation for a compromise in which the limits of copyright are put somewhere in the middle so that a substantial part of the activity still is covered and provides an income for authors, while the activities that are most directly relevant to peoples' private lives become free again. And this is the sort of thing that I propose doing with copyright for things such as novels and biographies and memoires and essays and so on. That at the very minimum, people should always have a right to share a copy wi