U.S. Senate Bill 3325: Exactly The Wrong Law
Patrick Leahy (D-VT) was one of the Senators who sponsored S. 3325, despite his generally good track record on electronic freedom issues. See below for information on how you can help Sen. Leahy understand why he shouldn't support this bill.
QuestionCopyright.org doesn't normally focus on immediate legislative goals. Current copyright law is pretty bad, but our mission is to change the way people think about copyright, in the belief that legislative change will follow.
But every now and then, a proposed new law is so off-the-charts wrongheaded that it needs to be immediately shut down. U.S. Senate Bill S. 3325 is one such. Public Knowledge has a great summary of what's wrong with it:
Last week, the Senate Judiciary Committee gave the green light to S. 3325, the Enforcement of Intellectual Property Act of 2008. We need you to show them the red light, NOW! This intellectual property enforcement bill lets the DOJ enforce civil copyright claims and lets the government do the MPAA and RIAA's intellectual property rights enforcement work for them — at tax payers' expense.
The bill also needlessly bundles trademark protections with copyright restrictions, thus further confusing these two unrelated things in the mind of the public (and, no doubt, in the minds of many Senators). Identity protection is a fine goal, but it has nothing to do with copyright. Search the bill for the phrase "counterfeit and pirated goods" and you'll see immediately how these different concepts are repeatedly yoked together, with the effect that mere unauthorized copying is tainted with the stigma of counterfeiting. For example:
For purposes of this title, the term `intellectual property enforcement' means matters relating to the enforcement of laws protecting copyrights, patents, trademarks, other forms of intellectual property, and trade secrets, both in the United States and abroad, including in particular matters relating to combating counterfeit and pirated goods.
See the full text of the two proposed versions of the bill for details.
Public Knowledge has set up a very convenient web page from which you can call or fax your Senators (if you're a U.S. citizen) and tell why they should oppose S. 3325. Please, if you have ten minutes to spare today...
Thank you.
Can laws be copyrighted? Carl Malamud and public.resource.org say no...
Thanks to James Jacobs for sending in a link to the article "He's giving you access, one document at a time" by Nathan Halverson at pressdemocrat.com. It's about how Carl Malamud and public.resource.org are defying the state of California by — get this — putting California's laws online for public access.
You wouldn't think that would be a particularly controversial thing to do. In fact, you might even expect California to have done so already, and in standard, parseable electronic formats too (as per the Open Government Data Principles). But instead, California enforces copyright over the texts of its laws. Quoting from the article:
California asserts copyright protections for its laws, contending it ensures the public gets accurate, timely information while generating revenue for the state.
"We exercise our copyright to benefit the people of California," said Linda Brown, deputy director of the Office of Administrative Law, which manages the state's laws. "We are obtaining compensation for the people of California."
It's a great example of how copyright restrictions inevitably spread to new areas, without regard to the public purpose. The logic goes something like this: the law is a text; a text has value according to its usefulness; if a text has value, someone can make money by restricting who shares it and then charging money for a lease on that monopoly; the state always needs revenue; ergo, the state should restrict the spread of its own laws, in order to raise funds! The reasoning is bizarre, almost breath-taking in its audacity. And it leads civil servants to claim, with straight faces, that the state has an interest in denying people access to the text of the law.
What's most interesting is how clearly this case reveals the old relationship between printers' monopolies and copyright law. California justifies their copyright restriction in exactly the same way the English Parliament justified the first copyright law: that the public good is best served by profitable distribution, and that means supporting printers by giving them a monopoly.
Of course, that argument made a lot more sense in 1709, when there wasn't an Internet around to allow zero-cost distribution of public goods :-).
"Piracy Is Not Theft" graphic by Patri Friedman
Thanks to Jessica Ferris for sending in this great image by Patri Friedman. How much more simply can one say it? Copying leaves the original untouched, therefore copying is not theft.
It's interesting to read some of the commentary on Friedman's post. For example: "This seems like semantic hair-splitting. If I go to some sort of practitioner of whatever and walk out without paying, I haven't stolen anything tangible, just their time. Is it meaningfully different than if I'd reached into their wallet and removed $60 or whatever? I doubt they'd be any less cheesed off if I told them "actually what just happened wasn't technically theft, it was something else." [1]
Friedman's response is terrific:
It is not semantic hair-splitting. It is a simple, genuine, important difference. Your example indicates that you don't understand it, which I find weird:
"If I go to some sort of practitioner of whatever and walk out without paying, I haven't stolen anything tangible, just their time."
But their time is not a copy. It is irreplaceable. They will never get those moments back. Therefore what you have done is theft. If you used the public record to create an AI simulacrum of the practitioner, and consult the simulacrum instead of the practitioner, that is analogous to pirating the time of the practitioner. (You may be stealing the time of the simulacrum, but that is a separate issue).
The question is not tangibility. The question is whether, after I do ____, someone else then has less of something than they did before. If I "go to someone for their services, and don't pay them", they have less time than before. If I ask Google what I was going to ask the professional and so don't need their services, they haven't lost anything.
There is a comment relating copyright with trademark law (that's something that we see all the time; can we come up with an equally powerful graphic to show how they're unrelated?). And there's the inevitable comment reiterating the received theory argument, which says that without monopolies people won't be motivated to innovate. We really need to start countering that one with the point that a monopoly in a given field tends to suppress innovation in that field. And anyway, where's the evidence? If these monopolies are so necessary for innovation, then why is there no shortage of innovation where monopolies are not given (the fashion industry, say, or cooking).
But all these words don't match the eloquence of Patri Friedman's graphic. It's simple, memorable, and irrefutable.
And no, by the way, I didn't ask Patri Friedman before posting a copy of the image here. His whole point is that we shouldn't have to. We credit him and link back, of course, because credit is like time or money, in that when you take it from someone, that person actually loses something. Copying the image while still giving him full credit is exactly in the spirit of his post.
August Break.
Hey everyone: it's been quiet around here because I'm on vacation for August (and have already been for part of July).
No, this is not because copyright reform must involve long vacations. It's just that I'm in the middle of a move, and need some extra time to complete it. (But I admit there are a few beaches involved too.) Someday, it will be the case that just because I take a break doesn't mean QuestionCopyright.org does — but we're not there yet.
See you in September, and enjoy your summer (or winter, if you're in the Southern hemisphere).
-Karl Fogel
Help Wanted -- We're Launching the Ghost Works Survey
We're launching the Ghost Works Survey, and you can help.
The Ghost Works Survey is a project to investigate how often, and in what ways, copyright prevents artists from making new derivative works.
In the article "Seen Any Ghost Works Lately?", we defined a ghost work as a creative work that never got made, or was made but not released, because copyright concerns prevented it from being started or from being distributed. Since then, informal conversations with artists, publishers and others have made it very clear that such suppression is a common event, much more common than most people think. But the public rarely hears about it, because no one does publicity for a work that doesn't exist.
The purpose of the Ghost Works Survey is twofold: to demonstrate the scope and scale of this phenomenon by gathering and organizing as much data about it as we can, and to highlight compelling individual stories of artists and other creators who had their work thwarted by copyright restrictions. The survey will not attempt to catalogue every ghost work — there are likely far too many, given that almost every artist we've talked to so far has a story of a work they had to alter or lay aside due to copyright concerns. Rather, we'll focus on qualitative results: we want to collect enough stories to discern large-scale patterns, so we can understand and publicize the effects of copyright suppression. For more information, see the projects page.
If you want to help, or are interested but want to know more before committing, please send an email to:
The time commitment will only be as great as you want it to be — we'll need help with tasks both large and small. Since much of the project involves receiving and processing stories from artists, our capacity is directly proportional to the number of volunteers: the more people are involved, the more we can do! QuestionCopyright.org can provide technical infrastructure and planning, but there is no substitute for human minds.
We'll also need some volunteers willing to take on specific responsibilities: for example, a maintainer for a MySpace page and a maintainer for a Facebook page (because we need to make it as easy as possible for people to send us stories).
And we welcome ideas, of course — please leave suggestions as comments on this article.
Talking on Copyright at ApacheCon EU in Amsterdam, April 9th.
If you're in or near Amsterdam in the second week of April, come on over to ApacheCon EU, the 2008 European conference of the Apache Software Foundation. There are a lot of interesting speakers and sessions going on, not all of them technical (for example, "Open Source Business in Europe" by Arje Cahn).
I'll be giving a talk entitled Creation Myths: Three Centuries of Open Source and Copyright, on Wednesday, 9 April, at 5:30pm. It's about the similarities between today's open source movement and the creative world of the pre-copyright era, how copyright and centralized distribution gradually changed the nature of creativity, and how open source and decentralized distribution are changing it back again — but with some new twists. (This is an updated version of a talk I gave last summer at OSS2007 in Ireland.) We'll also look at some non-software business models based on unrestricted information flow and collaboration.
Slides are here: OpenOffice.org (ODP), Adobe PDF, Microsoft PowerPoint (PPT).
Control At Any Cost: Copyright vs Christian Rock
Reader C. Michael Pilato sent us this story...
I've known about the terms "copyright" and "trademark" for as long as I've been able to read cereal boxes at the breakfast table. But I didn't became aware of copyright and the surrounding issues until I was in college. Sadly, our introduction wasn't all handshakes and smiles.
I play the guitar. I started teaching myself how to do this in high school, when my primary taste in music was so-called Christian rock. I carried my interest in the guitar with me into college at the University of North Carolina at Charlotte, where I developed a second love affair – with the Internet.
At some point early in my college days, someone introduced me to OLGA, the Online Guitar Archive. OLGA had the straightforward goal of providing a single location where guitarists of all shapes and sizes could download and contribute plaintext files that described how to play particular pieces of classical or popular music on the guitar. I gathered while traipsing around through newsgroups and such that OLGA was pretty popular with amateur guitarists like myself. There was only one small problem with OLGA from my perspective – it didn't have much music from the bands I listened to. So, I decided to dedicate a portion of the web-accessible disk space allotted to me by UNCC to host a site like OLGA, but dedicated to contemporary Christian music (CCM). And with just a handful of transcriptions I'd done myself (and also submitted to OLGA for inclusion there), and some severely lacking website design skills, I began the CCM Guitar Music Archives.
Presenting at O'Reilly's Tools of Change for Publishing Conference
I'll be giving a talk at the O'Reilly Tools of Change for Publishing conference in New York City next week: Beyond Numbers: Gatekeeper Effects and Just-in-Time Publishing, on Tuesday, February 12th, at 2pm; conference details here. The talk is on the commercial potential of on-demand publishing of freely-licensed material, even as a storefront business model, and how it could mean a richer and more participatory experience for readers, authors, and booksellers.
Cease and Desist Censorship
A US court has found that copyright law can cover "cease-and-desist letters", that is, letters sent by copyright holders telling someone to stop distributing copyrighted content.
Cease-and-desist letters are frequently used as tools of censorship (as Chilling Effects has ably documented). A common scenario is that someone gets upset at having something of theirs quoted, and is able to shut down the quotation by claiming copyright over its text and then sending C&D letters to anyone who displays it. The quoted text is not royalty-generating for the copyright holder (not that it would excuse censorship even if it were); rather, the sender of the C&D is simply using copyright law as a tool to prevent the publication of potentially embarrassing information — that is, to censor.
Musicians Censoring Themselves
Reader Ben Collins-Sussman sent us this letter after watching a group of hobbyist banjo players in an Internet forum shy away from sharing music because they were worried about copyright issues. It's hard to add to Ben's eloquent outrage, but we should step back and ask: how did we get here? When did the inconceivable become everyday? When did musicians start censoring themselves as a matter of course? (Notice how copyright issues actually come up twice, independently, in the forum Ben points to. That's two times in a discussion that's only nineteen posts long. It would be nice if this were somehow exceptional... but sadly, it's not.)
Here's Ben's letter:
I frequent exciting websites like www.banjohangout.org, where banjoists from all over the world (all 12 of us!) talk about banjos, songs we like, how to play things, and so on.
