July 11, 2014

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Register of Copyrights Misunderstands Copyright

The office of the U.S. Register of Copyrights recently released its annual report for 2004. Along with some useful information about the office’s function, the report includes a sort of editorial about the copyright system, entitled “Copyright in the Public Eye.” The editorial displays a surprising misunderstanding of the purposes of copyright.

Consider, for example, this sentence:

The Founders knew what they were doing when they made explicit that Congress was to secure to authors an “exclusive Right.” They understood that individual rights, especially property-like rights, were the key to establishing a stable and productive society.

Note the subtle rewriting of the Constitutional language. The Constitution does not direct Congress to establish copyright, but merely allows it to do so. Let’s be clear: the implication that the Founders would approve of today’s copyright statute finds no real support in the historical record. The first Congress passed a copyright act, and it was vastly narrower than the one we have today.

The Constitution allows Congress to do other things, too, such as imposing taxes and regulating interstate commerce. But nobody would argue that the Founders wanted the broadest possible taxation and regulation. The Founders trusted Congress to use its power judiciously, in copyright as in other areas.

Continuing with the Register of Copyrights editorial:

[The Founders] also trusted copyright owners to use those rights for the public good by offering creative works to the public. It is important for copyright owners to fulfill their end of the bargain with the public – to use the exclusive rights they have been granted to provide the public with convenient access to copyrighted works.

The implication here is that copyright owners can choose whether to “fulfill their end of the bargain with the public.” (If the bargain is mandatory, why bother urging copyright owners to fulfill it?) In other words, the public’s ability to use copyrighted works exists only at the pleasure of copyright owners. This is contrary even to our current bloated copyright law, which carefully limits the exclusive rights of copyright owners, and says explicitly that certain types of use are not infringement.

Continuing:

How copyright is perceived will largely depend on how technological measures limit reproduction and distribution in ways that are painless and invisible to the public. New services need to earn a reputation based on the things they allow people to do with copyrighted works, rather than on what they prevent people from doing.

Even ignoring the questionable technology assumptions – that technology can limit redistribution, and can do so “in ways that are painless and invisible” – the implication here is that the law already allows copyright owners to overreach, but the Register of Copyrights hopes that they don’t do so. In other words, it’s up to the copyright owners to decide what the future of copyright should be.

And how will this situation play out? Let’s go back to the first paragraph of the editorial:

For the first time ordinary consumers come face-to-face with copyright as something that regulates them directly. In this situation, the copyright owner is more likely to see the user as an infringer than as a customer.

And they wonder why copyright is unpopular with the public.

Comments

  1. Anonymous says:

    You have snipped this up in a misleading fashion. The editorial actually begins:

    “Until the late 1990s copyright was more or less invisible to the general public. Now, technology allows consumers to be not only authors and copyright owners, but also unauthorized copiers and distributors on a scale and with an ease that has never before existed. For the first time ordinary consumers come face-to-face with copyright as something that regulates them directly. In this situation, the copyright owner is more likely to see the user as an infringer than as a customer.”

    Clearly, the “more likely to see the user as an infringer” relates to the earlier sentence referring to users acting as unauthorized distributors. The point is that in the past, ordinary users did not have this power. It is this phenomenon, of ordinary users infringing on copyrights, which is causing the new conflicts.

  2. Jack9 says:

    In response to the comment…

    “Clearly, the “more likely to see the user as an infringer” relates to the earlier sentence referring to users acting as unauthorized distributors. The point is that in the past, ordinary users did not have this power. It is this phenomenon, of ordinary users infringing on copyrights, which is causing the new conflicts.”

    This is not the only source of the new conflicts, which are also not new…simply more publicised and increasingly viewed in the proper contexts. Ridiculous.

  3. Ed Felten says:

    Sorry, I don’t see how “technology allows users to be not only authors and copyright owners, but also unauthorized copiers and distributors [on a large scale and easily]” implies that copyright owners would be “more likely to see the user as an infringer than as a customer”.

    What the Register of Copyrights is asserting in the “more likely …” passage is that copyright owners view their users primarily as criminals, and only secondarily as customers. I think copyright owners are smarter that that, and realize that most of their users, statistically, are customers, and in any case that treating one’s customers as criminals is bad for business.

    I find it mildly disturbing that the Register of Copyrights would think that copyright owners generally think in the way described. It would be more disturbing if the Register thought that copyright owners were right to think that way; but the Register doesn’t go that far.

  4. Crosbie Fitch says:

    The Register of Copyrights has seen two futures, one in which it exists (through corrupt reinterpretation of copyright and alliances with similarly entrenched power brokers), and one in which it doesn’t.

    Failure to perceive that people hold the ultimate power in society, and not mere corporations, will see the RoC’s misguided assertion of its power accelerate it out of society’s orbit never to be seen again. Those holding the reins will enjoy interesting times whilst they so squander the remaining funding.

    Copyright was an agreement made on the people’s behalf – and the people are disagreeing.

    The RoC cannot afford to side with the people unless it wishes to embrace its inevitable dissolution.

    Sad, but only to be expected really.

  5. Alexander Wehr says:

    “What the Register of Copyrights is asserting in the “more likely …” passage is that copyright owners view their users primarily as criminals, and only secondarily as customers. I think copyright owners are smarter that that, and realize that most of their users, statistically, are customers”

    with all due respect to Felten on this view, I see something different going on here.

    They don’t see users as “criminals” or “customers”, but as cash cows to be milked as thoroughly as possible.

    To that extent they don’t seek to limit “infringement” with technical measures, but to chop up and sell what used to be free and fair use for a price, thus extending each “milking cycle” of the cash cows at the expense of freedom and innovation.

    This is supported by every action taken through lobbying, business practice, regulation, and litigation.

    They see in overbroad protection of TPM’s a method of turning economics on it’s head, of CONTROLLING the market rather than conforming to it, and theyre grabbing on to the mein of an unwilling society and trying to ride it into submission using the force of federal and international law.

  6. Neo says:

    What Alex said.

    The content cartel must be destroyed!

    http://www.corante.com/copyfight/

  7. Styles Mursadeese says:

    I.ve coyrighted a lot of differet ideas and the copyright syste inthe united states coyrigght office and haven`t recieved nothing. It`s like my country does`nt care about me or my {i.p.].so now I don`t care to create to help my country.

  8. Styles Mursadeese says:

    To be able to help is a right in the U.S.A. I see a lot of my words and unpublished intelectual property being used without my permission and I want it to stop or pay me my money we can negeotiate but bottom line is you must pay me .Styles Mursadeese the only man in the world with the last name spelled Mursadeese and is a united states citizen born in Audrain couunty,=mexico ,missouri under the name of Delbert Eugene Britt ,graduate of Fulton High in 1978. And now goes by the legal name of Styles Mursadeese and lives in Las Vegas NV 89103…

  9. Styles Mursadeese says:

    I’m Now married to Conchita Mursadeese my Wife To whom now gets Half of all my Copyrights and any thing else of mine that is vaulable and my copyrights too. Styles Mursadeese a very happy man Now