February 25, 2024

Lessig on Software Copyright

Larry Lessig defends his view of the best copyright law for software. Lessig advocates that (1) software copyrights expire after ten years (but a new version of a program would acquire a new copyright), and (2) source code be put in escrow, to be released when the copyright expires.

Whether you think the optimal term for software copyright is five years, or ten, or twenty, or something else, I think you have to agree that the current 95-year term for software is ridiculous. A sensible term would not last beyond the point where the author had extracted most or all of the available revenue from the work. Will Microsoft still be extracting revenue from the original version of Windows 95 in the year 2090? Of course not.

Lawyers, Tiggers and Bears, Oh My!

That’s the title of a hilarious article in L.A. Magazine about the ongoing legal battle over the rights to Winnie-the-Pooh. It’s full of telling details about the state of “intellectual property” law today, and about the mindset of the people involved.

My favorite example is a statement by Disney’s lawyer: “The legacy of Winnie-the-Pooh and the treasure that it is for generations of kids is something that Disney has taken the time and money to accomplish.” And to think that I had always given the credit to A.A. Milne.

Fuzzy Language, Fuzzy Thinking

One of the things I’ve learned in working with lawyers is that the language you use to describe something can powerfully shape your listeners’ ideas about it. Unless you’re very careful, you can fool yourself in the same way.

Many have remarked upon the rhetorical trick of using the word “piracy,” which denotes a type of violent crime long hated and feared – and still too common – to describe a lesser infraction. Calling infringement “piracy” makes it sound worse than it is.

But the use of “piracy” hides yet another rhetorical trick. The meaning of “piracy” is vague and expansive, while the more accurate term “infringement” has a precise and limited meaning. “Piracy” is often used even when no infringement is taking place; in these cases “piracy” really just means “any activity that makes a copyright owner unhappy.”

All right then; you may admit that “piracy” is an inaccurate term. But it is a colorful term, and like it or not, it is in common use. So, you might ask, what’s the problem with using it?

The problem is that fuzzy language leads to fuzzy thinking, and you may be fooling yourself by using fuzzy language. Fortunately, there is an easy way to tell if you’re falling into this trap. Try expressing your ideas using the precise term rather than the fuzzy one (e.g. using “infringement” rather than “piracy”). If your ideas still make sense, then you’re in good shape; but if your ideas sound weak when expressed in this way, then the fuzzy term has clouded your thinking.

This method works, but it’s a hassle to keep applying it to yourself. There is an easier way – use precise language. Don’t say “piracy,” say “infringement.”

[More posts on inaccurate terminology to come.]

RIAA To Do The Right Thing?

Fortune reports on the RIAA’s stunning new anti-infringement strategy of suing actual infringers:

“The RIAA is considering a far riskier strategy–suing individuals who share large numbers of files on Kazaa, Grokster, or Morpheus. It’s a tactic guaranteed to infuriate and alienate music fans, and it underscores the awful bind record labels are in.”

Assuming the RIAA chooses to go after folks who clearly and consistently infringe copyrights, music fans should applaud. I certainly will. I have no problem with punishing copyright infringers. What I do object to is laws and litigation aimed at legitimate activities and tools, just because some infringers use them. Punish the infringer, not the tool.

If the RIAA is indeed in an awful bind – if suing blatant infringers is indeed controversial – that is because the public is starting to question the legitimacy of copyright. How can that legitimacy be restored? Punishing the actual bad guys would be a good start.

Vaidhyanathan: Copyright as Cudgel

Nice article on copyright abuses by Siva Vaidyanathan in the latest Chronicle of Higher Education. The Chronicle is read mostly by professors, so the article talks at length about the harm to scholarship caused by the recent copyright expansion.

Vaidhyanthan identifies two common arguments used by those opposed to copyright expansion. The first, which he calls commons talk promotes the value of the ever-shrinking public domain. The second (unnamed) strategy is to enlist public support by pointing out how routine and accepted activities of Joe Public, such as backups and party mixes, are endangered.

As the scope of “intellectual property” continues to expand, I think we’ll see a third argument, based on collateral damage. The idea is that new laws, while apparently intended to protect the flank of copyright by giving copyright holders or technology makers new powers to restrict their competitors’ activities, will increasingly choke off beneficial and clearly-legal innovations.