Common Sense, Copyright, and Fair Use

This has been a good week for those who follow copyright and related issue - and that should be all of us.

One of the best articles pointing out what's wrong with copyright law was posted at National Review Online last Friday. In Right and Wrong, John Bloom reminds us that "copyright" simply means that the creator of a work determines who has the right to copy it - and that only for a limited amount of time. This is an automatic right; there is no need to file paperwork or hire a lawyer. You have copyright of your works simply because you have created them.

When the American Republic was established, the Founding Fathers chose a third path between no copyright whatsoever, which tended to impoverish authors, and perpetual copyright, which tended to make publishers rich. As with patents, the creator would maintain rights for a specified period of time and be allowed to renew that right once. After that, the creation would enter the public domain to benefit the general populace.

As Bloom writes,

The Founding Fathers wanted that term to be 14 years, with an additional 14 years if the author were still alive. After 28 years, they figured you'd had your chance to exploit your creation, and now it belonged to the nation at large.

But we are now engaged in a great civil war, testing whether the public domain can long endure. At this point, nothing published in the United States since 1923 has entered the public domain without the explicit wishes of its author. And this state will continue until at least 2018 unless Congress makes some changes.

Copyright Is Good

I have nothing against copyright. We copyright everything we publish on Low End Mac and the other Cobweb Publishing sites. And we make it very clear that when our editorial content is written by a freelancer, the author retains copyright.

When we find sites that have deliberately or inadvertently plagiarized our content, we ask them to remove it, and so far they have all complied. When we are asked for reprint rights for a User Group newsletter, we generally offer free use of our material in exchange for a couple copies of the newsletter, a notice of copyright, a link to the site and the original article, and the User Group not posting the article on their website.

Copyright lets us protect our livelihood by letting us choose where our writing is published.

Copyright Can Be Excessive

The problem with copyright comes from excess. What if "Happy Birthday" was a copyrighted work and you had to send $1.98 to the author every time you sang it in public? If that seems ridiculous, it isn't. "God Bless America" remains under copyright, and someone has to pay the copyright holder every time it's performed in public. (For the record, fees collected by the God Bless America Fund are used to support the Boy and Girl Scouts of America.)

Back in the 1960s, copyright law fell behind the technology of the times. A lot of people bought open reel tape decks and recorded hour upon hour of their own music to provide a sound track for daily living. Later people used cassettes and 8-track tapes to create personal favorite collections or copy LPs so they could listen to them on the car stereo.

The legality was nebulous, but Congress addressed this by rewriting copyright law to specifically allow "fair use" of copyrighted material. This meant you had the right to copy any LP you owned to tape, photocopy pages of a book for research, and so forth. Over time issues such as videotaping television broadcasts and making backup copies of software were also addressed.

Big Business vs. Personal Use

In the digital era, we're wrangling over issues such as copy protected DVDs, MP3s vs. "protected" music formats, and whether the mere presence of MP3s on a hard drive implies piracy.

Don't laugh. The RIAA takes their control of music very seriously, as noted in this article:

Acting unilaterally at the behest of the RIAA, Navy officials confiscated 100 computers on suspicion of harboring illegally downloaded MP3s, The Capital, an Annapolis, MD daily reports. A Naval official quoted confirms the raid, adding that punishment ranges from "court martial to loss of leave and other restrictions".

The folks at the Naval Academy didn't simply check the students' hard drives for the presence of MP3s and then ask if they were legal or not. Instead they confiscated 100 student computers simply because they suspected that they might harbor some illegally downloaded MP3s. And because of the Naval Academy's honor code, cadets can be expelled and have their future in the Navy destroyed.

They could have taped these songs off the radio, and there would have been no penalty. But unless they can prove that they own CDs or LPs or tapes with legal copies of the music on their computers, these cadets may well have their lives changed by the actions of the RIAA.

Things have obviously gone way too far when something is legal in one medium but illegal in another.

Common Sense and Copyright

I don't condone the wholesale distribution of MP3s over the Internet. No matter how easy it is to do, under current copyright law almost all of it is piracy. But destroying Napster won't end MP3 file sharing, nor will ruining the lives of Naval Academy cadets deter many from downloading files.

Think about it. If it's legal for me to record anything on the public airwaves for personal use and all of the songs available as MP3s have at some point been broadcast on the public airwaves, why is the RIAA going after individual file swappers and downloaders instead of the pirates who actually press and sell contraband CDs? Nobody is getting rich sharing MP3s.

In fact, research tends to find that the less file swapping taking place, the less music the recording industry sells. If anything, Napster exposed people to music they may not have had access to on local radio and got them to buy more CDs. To make more money, the RIAA should promote MP3s, not damn them.

That's common sense. Instead they are working with Microsoft and others to create alternate formats that are supposed to prevent piracy and could make it very difficult to rip a CD to both your home and work computers, for instance. And what happens if your hard drive crashes or someone deletes your favorite music files?

Thank goodness Apple is avoiding that path. On the down hand, Sony's new scheme requires Windows - just like that new movie download service. We may soon lose the ability to listen to some CDs on our Macs if the music industry has its way.

Plane Crazy and Steamboat Willie

The concept of copyright is that the creator can benefit from a work for a limited period of time, after which it enters the public domain. Copy protected DVDs and CDs deter that, as does legislation that continues to increase the length of the copyright term.

I'm sorry, Disney, but you've had exclusive rights to Plane Crazy, the 6 minute silent cartoon that introduced Mickey Mouse, and Steamboat Willie, the more famous Mickey Mouse cartoon with a soundtrack, for 84 years - that's long enough. Let it go.

The fear, of course, is that this would put Mickey Mouse himself in the public domain, allowing anyone to use the trademarked Disney mascot. But that needn't be the case if we carefully rewrite copyright and trademark law in such a way that fictional characters (such as Mickey Mouse) remain protected from use in unauthorized works while still allowing the old works to fall into the public domain.

That could end these ongoing extensions of copyright law.

How Long Is Long Enough

I think most people would agree that a 14 year copyright period with a single 14 year renewal is inadequate with today's longer life spans. An author should be able to benefit from her created works as long as she lives, but such a right shouldn't be granted automatically.

Today's copyright law extends 70 years beyond the death of the author, 95 years from publication, or 120 years from creation. That's excessive. If the media companies have their way, nothing will ever enter public domain until it's long forgotten; that isn't what the Founding Fathers had in mind.

Here's a simple suggestion that would benefit the artist and the public without severely impacting business:

• A fixed, reasonable initial copyright period of perhaps 40 years. If not renewed, the material falls into the public domain.
• A ten year copyright extension available at minimal cost to the copyright holder, whether individual or corporate.
• A second 10 year extension at double that cost.
• A third 10 year extension at double that cost. Also fourth, fifth, and so on extensions available, each at double the cost of the last one.
• All copyright would cease 100 years after initial publication, except in cases where the artist remains alive. In such cases, copyright can be renewed every 10 years for an additional 10 year period at twice the cost of the last renewal as long as the artist lives.

The greatest benefit of this is that copyright holders have an increasingly great incentive not to renew copyright on material that isn't generating income. Further, corporations would only be able to renew copyright for a limited time. Only material with a personal copyright could be renewed after 100 years (or whatever term Congress deems appropriate - this is just a suggestion).

A further stipulation of any new copyright legislation should be that the method of publication should not make fair use impossible, which would address the problem Linux users have when the want to watch DVDs on their computers and a problem Sony's proposed CD protection system might pose for Mac users.

Beyond Copyright

Then we just need some good old fashioned common sense legislation that clearly differentiates between different types of copyright violation. Publishing a book or movie or CD without permission of the copyright holder is a much different thing than downloading an MP3 from the Internet or recording a song off the radio. There is a difference between deliberate piracy for profit and casual use.

There is also a difference between ripping your own MP3s and making them available to all comers. No matter how much legitimate file sharing Napster allowed (I used it a couple times to download MP3s from songs on CDs I owned), in the final analysis it was primarily used for unauthorized distribution of copyrighted material.

What the MPAA and RIAA need to realize is that this isn't going to disappear. The nature of the Internet makes it a certainty that user-to-user file sharing is going to take place.

That said, there seems to be a strong correlation between the level of MP3 sharing and the level of CD sales, just as there is a correlation between listening to music on the radio and buying that music for your own collection. File sharing, legal or not, actually benefits the media companies. Instead of fighting it, they should try to work with it.

This might seem too sensible, but what if the record companies actually offered MP3s on their own servers. They could control the quality. They would know who is downloading them. They could charge a fee depending on the quality - low quality MP3s could be free and higher quality ones might cost 50¢ or $1.00. And each track would contain a unique identifier that could be used to trace piracy. They could make money off the music without pressing and distributing all those CDs.

Of course, that's not a copyright issue. That's business.

The RIAA needs to find ways to work with technology and with its customers instead of working to have cadets thrown out of the Naval Academy. They know how to make enemies; they need to learn how to make friends.

Copyright Law

And we need to petition Congress to overhaul copyright law. The Digital Millennium Copyright Law, the Bono legislation, and so many other actions have undermined the concept of the public good. Instead, Congress has responded to the deep pockets of the media companies by gutting the public domain.

We need some common sense legislation that recognizes the importance of fair use and public domain. We need a new birth of freedom so that a copyright law of the people, by the people, and for the people shall not perish from the earth.